Incorporates the city of Staten Island; enacts a city charter; provides for all necessary technical changes for the establishment of such city; provides for a transition period prior to such establishment.
STATE OF NEW YORK
________________________________________________________________________
8578
2025-2026 Regular Sessions
IN SENATE
November 14, 2025
___________
Introduced by Sen. LANZA -- read twice and ordered printed, and when
printed to be committed to the Committee on Rules
AN ACT to incorporate the city of Staten Island; to enact a charter for
the city of Staten Island; to provide a period of transition prior to
the establishment of the city of Staten Island; to amend the education
law, in relation to the establishment of the city school district of
the city of Staten Island; to amend the education law, in relation to
the transfer of the college of Staten Island of the city university of
New York to the state university of New York; to amend the judiciary
law, in relation to providing for the judiciary within the city of
Staten Island; to amend the public housing law, the education law, the
public authorities law and the private housing finance law, in
relation to providing membership on certain authorities for the city
of Staten Island; to amend the executive law, the elder law and the
social services law, in relation to probation and social services
within the city of Staten Island; to amend the county law, in relation
to the treatment of the county of Richmond in similar fashion to coun-
ties within a city having a population of one million or more; to
amend the election law, the state finance law and the surrogate's
court procedure act, in relation to making conforming changes relating
to the establishment of the city of Staten Island; to amend the gener-
al municipal law, in relation to the city of Staten Island industrial
development agency; to amend the local emergency housing rent control
act, the emergency tenant protection act of nineteen seventy-four, the
general business law and the real property tax law, in relation to the
continuation of existing housing regulations for the city of Staten
Island; to amend the tax law, the state finance law, the public
authorities law and the New York state financial emergency act for the
city of New York, in relation to applicability of the authority of the
financial control board; to amend the general city law, chapter 772 of
the laws of 1966 relating to imposition of a city business tax and the
tax law, in relation to providing authority for the city of Staten
Island to continue presently applicable taxes within such city; to
enact the administrative code of the city of Staten Island, in
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14063-01-5
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relation to procedures and administration of essential city services
and the authority of such city to impose taxes; and making appropri-
ations to advance moneys for the establishment of the city of Staten
Island and the city school district of the city of Staten Island
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 THE CITY OF STATEN ISLAND ACT
2 CONTENTS
3 SECTION(S) SUBJECT
4 1-001 Short title.
5 1-002 Legislative history, findings and intent and statement of
6 purposes.
7 1-003 Definitions.
8 1-004 Incorporation.
9 2-001 Charter of the city of Staten Island.
10 3-001 Legislative findings and declaration of purposes.
11 3-002 Elections.
12 3-003 Staten Island city government-transition.
13 3-004 Employees of the city of Staten Island.
14 3-005 Assistance to the city of Staten Island.
15 3-006 Provision of municipal services on the city of Staten
16 Island.
17 3-007 Debt, property, obligations and other allocations.
18 3-008 Continuance of municipal services.
19 3-009 Powers of the city of Staten Island to adopt and amend
20 local laws.
21 3-010 Powers of the city of Staten Island relating to home
22 rule powers.
23 4-001-4-020 City school district of the city of Staten Island.
24 5-001-5-003 Transfer of The College of Staten Island.
25 6-001 Interim court structure for the city of Staten Island.
26 7-001-7-002 New York city housing authority.
27 7-003-7-005 New York city construction fund.
28 7-006-7-008 New York city municipal water finance authority.
29 7-009 New York city housing development corporation.
30 7-010 Dormitory authority act; court facilities and combined
31 occupancy structures.
32 7-011 New York city school construction authority.
33 8-001-8-023 Municipal powers; authority of the county of Richmond
34 and the city of Staten Island.
35 9-001-9-017 Municipal services; city of Staten Island.
36 10-001-10-008 Landlord-tenant relationships.
37 11-001 Constitutional real property tax limitations; city of
38 Staten Island.
39 12-001-12-020 Municipal assistance corporation for the city of New York;
40 revenues.
41 13-001 Taxes; tax collection authority.
42 14-001 Administrative code of the city of Staten Island.
43 15-001 Appropriations; transition government and establishment of
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1 the city of Staten Island.
2 15-002 Appropriation; city school district of the city of Staten
3 Island.
4 16-001 Severability.
5 17-001 Effective date.
6 Section 1-001. Short title. This act shall be known and may be cited
7 as "The City of Staten Island Act".
8 § 1-002. Legislative history, findings and intent and statement of
9 purposes. 1. The legislature hereby finds, determines and declares:
10 (a) that Article IX, section 1 of the New York State Constitution
11 states that "effective local self-government and intergovernmental coop-
12 eration are purposes of the people of the state" and subdivision (a) of
13 section 2 of Article IX, further declares that "the legislature shall
14 provide for the creation and organization of local government;"
15 (b) that consistent with these constitutional provisions and in order
16 to provide for an effective republican form of government in accordance
17 with the constitution of the United States of America, the people of the
18 state of New York, represented in the senate and assembly, did enact
19 chapter 773 of the laws of 1989, as amended by chapter 17 of the laws of
20 1990, which authorized the borough of Staten Island, upon approval by
21 referendum to consider formally separating from its existing municipal
22 government, authorized the creation of a charter commission for the city
23 of Staten Island, authorized, upon approval of a subsequent referendum,
24 the adoption of a charter, and most importantly, required that within
25 three months of adoption of the charter by the voters of Staten Island,
26 the charter commission submit to the governor and the legislature,
27 proposed legislation enabling the borough of Staten Island to disengage
28 and separate from its existing municipal government, and that only upon
29 enactment of such enabling legislation, could the charter for the city
30 of Staten Island take effect;
31 (c) that the legislature, in requiring the subsequent enactment of
32 enabling legislation before a charter for the city of Staten Island
33 could take effect, reaffirmed its paramount constitutional authority to
34 distribute the powers of local government, as between city and county
35 governments, as it deems best;
36 (d) that preserving historical and natural boundaries, as well as the
37 integrity of political subdivisions of the state, and providing meaning-
38 ful representation of the smaller boroughs in the city of New York
39 affairs, are among those legitimate state interests and policies which
40 have been validated by the federal courts;
41 (e) that the people of the state of New York enacted chapter 773 of
42 the laws of 1989, as subsequently amended, to provide a process by which
43 the people of Staten Island could carefully study and consider the legal
44 disengagement and separation of the borough of Staten Island from the
45 city of New York as an acceptable means of implementing the substantial
46 state interest in providing effective local self-government for the
47 citizens of Staten Island; and
48 (f) that the issues of legal disengagement and separation of the
49 borough of Staten Island from the city of New York raise concerns of
50 statewide importance, not limited to Staten Island residents or New York
51 city residents.
52 2. The legislature further finds, determines and declares:
53 (a) that the New York State Constitution entitles the people of Staten
54 Island to "effective local self-government;"
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1 (b) that the existing charter of the city of New York does not provide
2 meaningful representation to the borough of Staten Island, therefore
3 precluding "effective local self-government;"
4 (c) that given the constraints of the United States Supreme Court
5 articulated in Board of Estimate of the City of New York v. Beverly
6 Morris, 489 US 103 (1989), the only viable alternative to providing
7 "effective local self-government" is legal disengagement and separation
8 from the city of New York and the creation of the new city of Staten
9 Island;
10 (d) that such legal separation of Staten Island from the city of New
11 York is economically feasible, with minimal fiscal impact on the state
12 of New York;
13 (e) that the city of New York should have a meaningful role and the
14 opportunity to provide significant input in the process by which Staten
15 Island legally disengages and separates from the city of New York,
16 including participation in a transition period, but the city of New York
17 should not in the exercise of the aforesaid role, be permitted to unila-
18 terally prevent the legal disengagement and separation of Staten Island;
19 and
20 (f) that in connection with the process of legal disengagement and
21 separation, there is hereby specifically delegated to a group of repre-
22 sentatives from both the city of New York and the proposed city of
23 Staten Island the task of evaluating and accounting for the allocation
24 of all assets and liabilities, as well as the provision of municipal
25 services during the transition period, all of which shall be determined
26 in the context of the overall best interest of the state of New York.
27 3. The legislature further finds, determines and declares:
28 (a) that by virtue of the authority vested in the legislature by the
29 New York State Constitution to provide for the "creation and organiza-
30 tion of local governments" as well as for "effective local self-govern-
31 ment" and "intergovernmental cooperation," the interests of the people
32 of the state would be served and promoted by the separation and creation
33 of a new municipality to be called the city of Staten Island; and
34 (b) that in furtherance of such purposes, the recommendations of the
35 charter commission shall be implemented in connection with the creation
36 of the city of Staten Island.
37 4. The legislature further finds, determines and declares that the
38 establishment of the city of Staten Island is authorized by the New York
39 State Constitution, constitutes a state purpose for the benefit of the
40 people of the state of New York and therefore the city of Staten Island
41 Act is hereby enacted.
42 § 1-003. Definitions. As used in this act, the following terms shall
43 have the following meanings:
44 1. "Effective date of this charter" shall mean the first of November
45 next succeeding the date on which this act shall have become a law.
46 2. "Date of incorporation of the city of Staten Island" or "date of
47 incorporation" shall mean the date on which the city of Staten Island is
48 incorporated, the first of January next succeeding the date on which
49 this act shall have become a law.
50 3. "Date of establishment of the city of Staten Island" or "date of
51 establishment" shall mean the date on which the city of Staten Island is
52 first authorized to exercise full municipal authority, except for judi-
53 cial authority, over the citizens and territory of the city of Staten
54 Island, the first of July in the second year next succeeding the year in
55 which this act shall have become a law.
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1 4. "Transition period" shall mean the period of time between the date
2 of incorporation and the first of July in the second year next succeed-
3 ing the year in which this act shall have become a law from and includ-
4 ing the date of incorporation until the date of establishment.
5 5. "Preceding municipality" shall mean the city government for the
6 geographical area of the city of Staten Island existing immediately
7 prior to the incorporation of the city of Staten Island and which shall
8 exercise full municipal powers and duties for such area during the tran-
9 sition period.
10 6. "Judiciary transition period" shall mean the period of time between
11 the date of incorporation of the city of Staten Island and December
12 thirty-first in the fifth year following such incorporation or until the
13 provisions of article 5-C of the judiciary law are specifically super-
14 seded by state law. At the conclusion of the judiciary transition peri-
15 od, the city of Staten Island shall be authorized to exercise full judi-
16 cial authority over the citizens and territory of the city of Staten
17 Island.
18 § 1-004. Incorporation. The city of Staten Island is hereby incorpo-
19 rated on the first of January next succeeding the date on which this act
20 shall have become a law. The boundaries of such city shall be as
21 described in section 1-02 of the charter of the city of Staten Island as
22 set forth in section 2-001 of this act. During the transition period
23 such city shall not have the powers or duties of a municipality except
24 those which are provided for pursuant to this act to provide for the
25 transition of government and the establishment of such city. During the
26 transition period, the preceding municipality shall possess and exercise
27 full municipal powers and duties for the area to become the city of
28 Staten Island except for those powers and duties as may be provided by
29 the provisions of this act. Powers and duties of the city of Staten
30 Island not yet in effect shall remain with the preceding municipality
31 until such time as those powers and duties are transferred to the city
32 of Staten Island pursuant to the provisions of this act. Except as
33 otherwise provided by this act, full powers and duties shall devolve to
34 the city of Staten Island on the first of July in the second year next
35 succeeding the date on which this act shall have become a law. The
36 following powers, duties and functions regarding the judiciary during
37 the judicial transition period and other matters as jointly determined
38 by the city of Staten Island and the preceding municipality in accord-
39 ance with the provisions as outlined elsewhere in this act, will be
40 shared by both municipalities. The city of Staten Island shall be estab-
41 lished on the first of July in the second year next succeeding the date
42 on which this act shall have become a law, on which date the city of
43 Staten Island shall possess full municipal powers and duties as are
44 provided under law and the preceding municipality shall cease to possess
45 municipal powers and duties regarding the city of Staten Island.
46 § 2-001. Charter of the city of Staten Island. The city charter of
47 the city of Staten Island is enacted to read as follows:
48 Charter of the City of Staten Island
49 Table of Contents
50 Preamble
51 Chapter 1 General Provisions
52 Chapter 2 Powers of the City
53 Chapter 3 Mayor
54 Chapter 4 Common Council
55 Chapter 5 Comptroller
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1 Chapter 6 The Budgetary Process: Expense and Capital
2 Chapter 7 Planning Department
3 Chapter 8 Franchises
4 Chapter 9 Contracting
5 Chapter 10 Referendum and Amendment
6 Chapter 11 Property of the City
7 Chapter 12 Personnel Management
8 Chapter 13 Equal Employment Practices Commission
9 Chapter 14 Collective Bargaining
10 Chapter 15 Transitory Provisions
11 Chapter 16 Labor Relations
12 CHARTER OF THE CITY OF STATEN ISLAND
13 Preamble
14 The People of Staten Island, exercising their right to propose a
15 government of their choosing through which all people can be effectively
16 represented, do hereby adopt this Charter.
17 The birth of a city, must, of necessity, take place in an aura of
18 excitement and great expectations. When it occurs at a time when society
19 is experiencing strong institutional challenges in a climate of skepti-
20 cism, it places heavy burdens on those responsible for leadership to
21 sustain a commitment by the people to live and function together as a
22 community.
23 The provision of a structure of governance at the local level is an
24 extraordinary and crucial responsibility. Sophocles wisely observed that
25 "the city is the people." The City of Staten Island must place a high
26 premium on assuring meaningful participation of its citizenry in the
27 governmental decisions affecting their lives.
28 We must respect the principles of equality and of the social dignity
29 of all of our residents and provide for the complete development of the
30 individual, promoting actions which favor the advancement of men and
31 women in realizing their fullest potential. We must embrace policies
32 that promote and give effectiveness to the rights of every person, with
33 particular attention to those who face special challenges, in striving
34 for a full life.
35 We must assert a policy of favoring equal opportunity employment for
36 all women and men. We must foster a culture that is peaceful and non-
37 violent and that safeguards the rights of all inhabitants to carry out
38 their lawful activities on Staten Island.
39 We should give strong supportive efforts for the conservation and
40 defense of the environment along with the advancement of the cultural
41 and natural values that sustain them. We consent to be governed by the
42 new municipality in the belief that a smaller, localized city government
43 may effectively and responsibly balance the needs of the people with the
44 cost of providing municipal services.
45 The City of Staten Island can serve as a model for the promotion of
46 the common welfare, the guarantor of individual liberties and the guard-
47 ian of the social, spiritual, economic and cultural concerns of its
48 inhabitants.
49 We believe this act of self determination to be in the best interests
50 of the people of Staten Island and the people of the City of New York
51 and we hope that together, as sister cities, we can work cooperatively
52 in efforts of regional concern and for the betterment of New York State.
53 Chapter 1
54 General Provisions
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1 § 1-01. Incorporation.
2 The citizens of the State of New York from time to time inhabitants of
3 the territory in the County of Richmond, included in the boundaries set
4 forth in section 1-02 of this chapter, shall be known as the City of
5 Staten Island, and shall be a municipal corporation in perpetuity under
6 the name of "The City of Staten Island."
7 § 1-02. Boundaries.
8 The City of Staten Island shall consist of all the territory known as
9 Richmond county, which shall contain all that part of the state, bounded
10 on the north by the center line of the Kill Van Kull which center line
11 would extend easterly to the extension of the center line of North River
12 and Upper New York Bay, then on the east by the extension of the afore-
13 mentioned center line of Upper New York Bay running southerly through
14 the Narrows between Richmond county and Kings county and continuing
15 through Lower New York Bay to the Atlantic Ocean, and bounded on the
16 south east by the Atlantic Ocean to the boundary of the state of New
17 York and the state of New Jersey at Raritan Bay, and on the west follow-
18 ing the center line of the Kill Van Kull and the center line of the
19 Arthur Kill which is the boundary between the state of New York and the
20 state of New Jersey, including Staten Island, Island of Meadows, Pralls
21 Island, Hoffman Island, Swinburne Island, that part of Shooters Island
22 within the state of New York, and all other islands or parts thereof
23 situated within the aforedescribed bounds.
24 Chapter 2
25 Powers of the City
26 § 2-01. Powers.
27 The city shall have and may exercise all powers necessary for local
28 self-government and any additional powers and authority which are now or
29 may be hereafter granted to it under the Constitution or laws of this
30 State, as fully and completely as though such powers were specifically
31 enumerated in this Charter and no enumerations of particular powers in
32 this Charter shall be held to be exclusive but shall be held to be in
33 addition to this general grant of powers.
34 § 2-02. Purposes.
35 All city powers shall be used to serve and advance the general
36 welfare, health, happiness, safety and aspirations of its inhabitants,
37 present and future, and to encourage their full participation in the
38 process of governance.
39 Chapter 3
40 Mayor
41 § 3-01. Executive power.
42 The executive power of the city shall be vested in and exercised by
43 the mayor as chief executive officer.
44 § 3-02. Election; term.
45 The mayor shall be elected at the first general election following the
46 effective date of this charter and every fourth year thereafter. The
47 mayor shall hold office for a term of four years commencing on the first
48 of January after each such election.
49 § 3-03. Qualifications.
50 The mayor shall be a citizen of the United States, a qualified elector
51 of the city, and shall have been a resident of the city for at least one
52 year immediately preceding his/her election.
53 § 3-04. Deputy mayor.
54 The mayor shall appoint and at pleasure remove a deputy mayor who
55 shall have such powers and duties as may be assigned by the mayor and
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1 who shall act temporarily as mayor in case of the mayor's temporary
2 inability, absence or illness as is provided by this charter.
3 § 3-05. Removal of the mayor.
4 The mayor may be removed from office by the governor upon charges and
5 after service upon him or her of a copy of the charges and an opportu-
6 nity to be heard in his or her defense. Pending the preparation and
7 disposition of charges, the governor may suspend the mayor for a period
8 not exceeding thirty days.
9 § 3-06. Succession.
10 (a) In case of the suspension of the mayor from office, the mayor's
11 temporary inability to discharge the powers and duties of the office of
12 mayor by reason of sickness or otherwise, or the mayor's absence from
13 the city, the powers and duties of the office of mayor shall devolve
14 upon the deputy mayor or an acting mayor in case of a vacancy in the
15 office of deputy mayor pending a special election to fill the vacancy in
16 the office of mayor as provided in subdivision (c) of this section.
17 While so acting temporarily as mayor the deputy mayor or acting mayor
18 shall not exercise any power of appointment to or removal from office;
19 and shall not, until such suspension, inability or absence shall have
20 continued nine days, sign, approve or disapprove any local law or resol-
21 ution, unless the period during which the mayor can act thereon would
22 expire during said nine days in which case the deputy mayor or acting
23 mayor in case of a vacancy in the office of deputy mayor shall have the
24 power to disapprove the same within forty-eight hours before the time to
25 act expires.
26 (b) In case of a failure of a person elected as mayor to qualify, or a
27 vacancy in the office caused by the mayor's resignation, removal, death
28 or permanent inability to discharge the powers and duties of the office
29 of mayor, such powers shall devolve upon the deputy mayor or acting
30 mayor in case of a vacancy in the office of deputy mayor pending a
31 special election to fill the vacancy for the remainder of the unexpired
32 term in the office of mayor as provided in subdivision (c) of this
33 section, such special election to take place thirty days after the proc-
34 lamation that such vacancy exists.
35 (c) Within seven days of the occurrence of a vacancy in the office of
36 mayor, the council shall proclaim the date for the special election to
37 fill the vacancy required by this subdivision and such election shall
38 take place thirty days after said proclamation. The council shall
39 provide notice of such proclamation to the city clerk and board of
40 elections and publish notice thereof, and the board of elections shall
41 mail notice of such election to all registered voters within the city
42 and shall conduct such special election thirty days after the proclama-
43 tion.
44 (d) A party nomination of a candidate for the special election to fill
45 a vacancy in the office of mayor for the remainder of the unexpired term
46 shall be made in the manner prescribed by the rules of the party.
47 (e) An independent nominating petition for the nomination of candi-
48 dates to fill the vacancy must be signed by registered voters numbering
49 five per centum of the total number of votes cast for governor at the
50 last gubernatorial election in the city of Staten Island, excluding
51 blank and void votes, except that not more than two thousand signatures
52 shall be required upon any such petition.
53 (f) Any vacancy in the office of mayor that occurs after July tenth
54 and on or before September nineteenth in any year shall be filled at the
55 general election held in such year.
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1 (g) Any vacancy that occurs on or after September twentieth in any
2 year and not later than thirty-seven days before the first Tuesday in
3 December shall be filled at a special election to be held on the first
4 Tuesday in December in such year.
5 A person elected to fill a vacancy in the office of mayor at a special
6 election shall take office immediately upon qualification and fill the
7 vacancy for the remainder of the unexpired term.
8 § 3-07. Appointment and removal of officers and employees.
9 (a) The mayor shall appoint the heads of administrations, departments,
10 all commissioners, and all other officers not elected by the people
11 including a city clerk, except as otherwise provided in this charter or
12 by law.
13 (b) The mayor, whenever in his or her judgment the public interest
14 shall so require, may remove from office any public officer holding
15 office by appointment from a mayor of the city, except officers for
16 whose removal other provision is made by law. No public officer shall
17 hold his or her office for any specific term, except as otherwise
18 provided by law.
19 § 3-08. General Powers.
20 (a) The mayor, subject to this charter, shall exercise all the powers
21 vested in the city, except as otherwise provided by law.
22 (b) The mayor shall have the power:
23 1. to supervise, direct and control, subject to law, the administra-
24 tive services and departments of government;
25 2. to see that the ordinances of the city and laws of the city and
26 state are properly administered and enforced;
27 3. to prepare and submit to the council an annual report of his or her
28 work, which shall be made public and which shall include a summary of
29 agency service goals, performance measures and actual performance rela-
30 tive to goals for each service delivery program and an appendix of those
31 programs which provide abatements or reductions of taxes for businesses
32 in the city;
33 4. to prepare and submit a budget message and an expense budget and
34 capital budget annually to the council for its consideration and neces-
35 sary action in accordance with this charter and the city code;
36 5. to call special sessions of the council;
37 6. to approve or to veto acts of the council in the manner prescribed
38 by this charter;
39 7. to inquire into the conduct of any city department, agency, board
40 or commission, except elected officials and their offices; and to make
41 investigation as to municipal affairs and, for that purpose, may subpoe-
42 na witnesses, administer oaths and compel production of books, papers
43 and other evidence. Failure to obey such subpoena or to produce books,
44 papers or evidence as ordered under this section shall be punishable as
45 a misdemeanor;
46 8. to create or abolish bureaus, divisions or positions within the
47 executive office of the mayor or city departments as he or she may deem
48 necessary to fulfill mayoral duties;
49 9. to delegate to or withdraw from any member of said office, speci-
50 fied functions, powers and duties, except the mayor's power to act on
51 local laws or resolutions of the council or to appoint or remove offi-
52 cials;
53 10. to perform all such duties as may be presented for the mayor in
54 this charter, or other law, or by act of the council.
55 (c) Notwithstanding any other provision of law, the mayor shall have
56 the powers of a finance board under the local finance law and may exer-
S. 8578 10
1 cise such powers without regard to any provision of law prescribing the
2 voting strength required for a resolution or action of such finance
3 board, provided, however, that whenever the mayor determines that obli-
4 gations should be issued and the amount thereof, the mayor shall certify
5 such determination to the comptroller who shall thereupon determine the
6 nature and term of such obligations and shall arrange for the issuance
7 thereof.
8 Chapter 4
9 Common Council
10 § 4-01. Legislative power.
11 The legislative power of the city shall be vested in and exercised by
12 the common council, hereinafter referred to as the council, except as
13 otherwise provided by this charter.
14 § 4-02. Number, election and terms of office of council members.
15 (a) The council shall consist of fifteen members each elected from
16 separate council districts. Eight council members shall be elected from
17 districts denominated "A" districts and seven council members shall be
18 elected from districts denominated "B" districts. The eight council
19 members who represent "A" districts shall be elected at the general
20 election to be held in the years ending in seven, one and five. The
21 seven council members who represent "B" districts shall be elected at
22 the general election to be held in the years ending in seven, nine and
23 three.
24 (b) The boundaries and designations of the council districts shall be
25 drawn and specified pursuant to section 5 of chapter 773 of the laws of
26 1989 and shall remain in effect until altered or changed in accordance
27 with the provisions of this charter. Council members shall be elected at
28 the first general election following the effective date of this charter,
29 except as otherwise provided by transition provisions. The term of
30 office of a council member shall begin on January first following such
31 election and shall be for either a four-year or two-year period as
32 provided in subdivision (a) of this section or until a successor is duly
33 elected and qualified.
34 § 4-03. Qualifications.
35 Each council member shall be a citizen of the United States and shall
36 have been resident of the city for one year immediately preceding his or
37 her election and shall reside in the district from which elected while
38 serving as a council member. Removal of residence from the city or from
39 the council district following election or during the term of office
40 shall constitute immediate forfeiture of office and a vacancy shall
41 exist in the district from which the council member was elected.
42 § 4-04. Organization.
43 The council shall determine the rules of its own proceedings at the
44 first stated meeting of the council in each year. The council by majori-
45 ty vote of all its members shall elect one member as speaker and such
46 other officers as it deems appropriate.
47 § 4-05. Vacancy.
48 (a) The office of a council member shall become vacant upon the
49 member's death, resignation, removal from office or forfeiture of office
50 in any manner authorized by law. A council member shall forfeit that
51 office if the council member violates any express prohibition of this
52 charter or lacks at any time during the term of office for which he or
53 she was elected any qualification for the office prescribed by the char-
54 ter or by law.
55 (b) Within seven days of the occurrence of a vacancy in the council,
56 the mayor shall proclaim the date for a special election to fill the
S. 8578 11
1 vacancy required by this subdivision and such election shall take place
2 thirty days after said proclamation. The mayor shall provide notice of
3 such proclamation to the city clerk and board of elections and publish
4 notice thereof, and the board of elections shall mail notice of such
5 election to all registered voters within the district in which the
6 vacancy has occurred and shall conduct such special election thirty days
7 after the proclamation.
8 (c) A party nomination of a candidate for the special election to fill
9 a vacancy in the council for the remainder of the unexpired term shall
10 be made in the manner prescribed by the rules of the party.
11 (d) An independent nominating petition for the nomination of candi-
12 dates to fill the vacancy must be signed by voters numbering five per
13 centum of the total number of votes cast in the district for governor at
14 the last gubernatorial election in the city, excluding blank and void
15 votes, or as provided by the New York state election law.
16 (e) Any vacancy that occurs in the council after July tenth and on or
17 before September nineteenth in any year shall be filled at the general
18 election held in such year.
19 (f) Any vacancy that occurs on or after September twentieth in any
20 year and not later than thirty-seven days before the first Tuesday in
21 December shall be filled at a special election to be held on the first
22 Tuesday in December in such year.
23 A person elected to fill a vacancy in the council at a special
24 election shall take office immediately upon qualification and fill the
25 vacancy for the remainder of the unexpired term.
26 § 4-06. Powers.
27 (a) All legislative power shall be vested in a council.
28 (b) The council shall have the following additional powers:
29 1. to employ or retain its own staff and consultants including a clerk
30 of the council;
31 2. to conduct investigations in accordance with the provisions of this
32 charter;
33 3. to designate an acting mayor within seventy-two hours of the occur-
34 rence of a vacancy in both the office of mayor and the office of deputy
35 mayor;
36 4. to approve appointments as provided in this charter, except as
37 otherwise mandated by law;
38 5. to exercise the power of removal as provided in this charter;
39 6. to override the veto of a mayor by a two-thirds vote of all the
40 members;
41 7. to disapprove within thirty days any proposed designation by the
42 department of city planning of a landmark, landmark site, interior land-
43 mark, scenic landmark or historic district, provided however, that in
44 the absence of any such disapproval the proposed designation shall
45 become effective thirty days after having been referred to the council
46 by the department of city planning;
47 8. to call a meeting at any time between the council and the mayor
48 jointly to discuss legislation or business of the city in general, and
49 by a two-thirds vote of all the members to compel the attendance of the
50 mayor at a council hearing; and
51 9. to exercise other powers conferred by this charter.
52 § 4-07. Clerk of the council.
53 (a) The council shall appoint a clerk who shall perform such duties as
54 may be prescribed by law. The clerk so appointed shall be the clerk of
55 the council and shall serve at the pleasure of the council. The clerk
56 shall attend the meetings of the council, keep a journal of its
S. 8578 12
1 proceedings and discharge such other duties as may be prescribed by this
2 charter or other law.
3 (b) The clerk shall keep each local law passed in a book provided for
4 that purpose, with proper indices, which book shall be deemed a public
5 record of such local laws, and each local law shall be attested by said
6 clerk. The clerk shall cause to be published all notices, advertising
7 matters or proceedings as required by the provisions of this charter or
8 by other law. It shall be the duty of the clerk to keep open for
9 inspection at all reasonable times the records and minutes of the
10 proceedings of the council.
11 § 4-08. Investigations.
12 The council shall have the power to investigate any matters within its
13 jurisdiction relating to the property, affairs, or government of the
14 city, or to any other powers of the council, or to the effectuation of
15 the purposes or provisions of this charter or any laws relating to the
16 city, and to incur expenses therefor which shall be a general city
17 charge in the absence of an appropriation. The council shall have the
18 power to require the attendance and examine and take testimony under
19 oath of such persons as it may deem necessary and to require the
20 production of books, accounts, papers and other evidence relative to the
21 inquiry kept by any person which may relate to such investigation or the
22 attendance of any person having knowledge of the subject matter of the
23 investigation.
24 § 4-09. Local laws.
25 (a) Except as otherwise provided by law, all legislative action by the
26 council shall be by local law. Every local law shall contain only one
27 subject. The title shall clearly refer to the subject matter.
28 (b) The council shall take no final action on any legislation until a
29 minimum of three days, exclusive of Sundays, has elapsed from the date
30 of its introduction, unless the mayor shall have certified as to the
31 necessity for its immediate passage and such local law be passed by the
32 affirmative vote of two-thirds of all the council members; provided
33 however that general plans, development plans and amendments and
34 revisions thereto shall not be so certified.
35 (c) Every local law passed by the council shall be certified by the
36 clerk of the council and shall be presented to the mayor for approval
37 prior to its effective date. The mayor shall sign the legislation within
38 ten days if approved, but, if not, shall return it to the council
39 together with a written statement of his or her objections. The council,
40 within thirty days may reconsider any legislation disapproved by the
41 mayor and may pass it by a two-thirds vote of all the members. If the
42 mayor fails to sign or return legislation to the council with reasons
43 for disapproval, it shall become law as of its effective date, thirty
44 days after submission to the mayor.
45 (d) No proposed local law or budget modification shall be voted on by
46 a council committee or the council unless it is accompanied by a fiscal
47 impact statement containing the following information:
48 1. the fiscal year in which the proposed law or modification would
49 first become effective and the first fiscal year in which the full
50 fiscal impact of the law or modification is expected to occur;
51 2. an estimate of the fiscal impact of the law or modification on the
52 revenues and expenditures of the city during the fiscal year in which
53 the law or modification is to first become effective, during the
54 succeeding fiscal year, and during the first fiscal year in which the
55 full fiscal impact of the law or modification is expected to occur; and
56 3. a list of sources of information used in its preparation.
S. 8578 13
1 (e) All agency heads shall promptly provide to any council committee
2 any information that it requests to assist it in preparing a fiscal
3 impact statement.
4 § 4-10. Districting commission.
5 (a) There shall be a districting commission consisting of seven
6 members appointed as provided in this section.
7 (b) Each member of the commission shall be a citizen of the United
8 States and shall have been a resident of the city for one year imme-
9 diately preceding his or her appointment.
10 (c) The majority leader in the council shall appoint three members of
11 the commission.
12 (d) The minority leader in the council shall appoint two members of
13 the commission.
14 (e) If only one political party has a council delegation, then the
15 chairpersons of the county committees of the political party with no
16 council delegation which, at the time of the last general election for
17 council preceding the time at which such appointments are required to be
18 made, had the second and third highest number of votes cast in that
19 election, shall each appoint one member of the commission.
20 (f) The mayor shall appoint two additional members who shall not be
21 members of the same political party.
22 (g) In the event of a vacancy by death, resignation or otherwise, a
23 new member enrolled in the same political party from which his or her
24 predecessor was selected shall be appointed in the same manner as the
25 member whose departure from the commission created the vacancy and shall
26 serve for the balance of the term remaining.
27 (h) The members of the commission shall elect one of the seven members
28 to serve as the chair of the commission.
29 § 4-11. Powers of the districting commission.
30 (a) Following each decennial census, the commission shall prepare a
31 plan for dividing the city into districts for the election of council
32 members.
33 (b) The commission shall submit its plan to the council for its final
34 adoption and such plan shall not be subject to any mayoral action in
35 order to become effective.
36 § 4-12. Community advisory boards.
37 (a) The common council is hereby authorized to create, by local law,
38 one or more community advisory board districts and corresponding commu-
39 nity advisory boards to consider the needs of such districts, and to
40 cooperate with, consult, assist and advise members of the common coun-
41 cil, as well as any public officer, agency, and local administrators of
42 such agencies, with respect to any matter relating to the welfare of the
43 residents of such districts.
44 (b) The number of community advisory boards and the number of members
45 appointed to serve on such board or boards shall be determined by the
46 common council as it deems appropriate.
47 (c) In addition, the boundary lines of the community advisory board
48 districts created hereunder shall be coterminous with the boundary lines
49 of one or more council districts so that no council district shall be
50 included in more than one community advisory board district.
51 (d) Members of the community advisory boards shall serve without
52 compensation and shall serve for not more than two (2) consecutive two-
53 year terms so as to maximize the opportunities for meaningful partic-
54 ipation in local government for all city residents, and to preserve the
55 spirit and long-standing tradition of excellent voluntarism on Staten
56 Island.
S. 8578 14
1 Chapter 5
2 Comptroller
3 § 5-01. Election; term.
4 The comptroller shall be elected by the electors of the city at the
5 same time and for the same term as this charter prescribes for the
6 mayor. The comptroller shall serve for a term of four years commencing
7 on the first of January following such election and until a successor is
8 elected and qualified.
9 § 5-02. Powers and duties.
10 (a) The comptroller shall have the following powers and duties:
11 1. to advise the mayor and the council on the financial condition of
12 the city or any phase thereof;
13 2. to make recommendations, comments and criticisms in regard to the
14 operations, fiscal policies and financial transactions of the city as he
15 or she may deem advisable;
16 3. to audit and investigate all matters relating to or affecting the
17 finances of the city, including without limitation the performance of
18 contracts and the receipt and expenditure of city funds, and for such
19 purpose shall have the power to require the attendance and examine and
20 take the testimony under oath of such persons as the comptroller may
21 deem necessary;
22 4. to submit an annual report to the mayor and the council showing
23 revenues, receipts and expenditures, the sources from which the revenues
24 and funds are derived and how they have been disbursed;
25 5. to inspect, revise and prescribe the form of reports and accounts
26 of the agencies, trusts, the council and units of government;
27 6. to audit all agencies, trusts, the council and units of government
28 whenever the comptroller decides it is necessary or is directed to
29 conduct such an audit either by the mayor or by the council. The comp-
30 troller shall be entitled to obtain access to agency records required by
31 law to be kept confidential, other than records which are protected by
32 the privileges for attorney-client communications, attorney work
33 products, or material prepared for litigation, upon a representation by
34 the comptroller that necessary and appropriate steps will be taken to
35 protect the confidentiality of such records.
36 (b) The comptroller shall establish a regular auditing cycle to ensure
37 that one or more of the programs or activities of each city agency, or
38 one or more aspects of each agency's operations, is audited at least
39 once every four years. The audits conducted by the comptroller shall
40 comply with generally accepted government auditing standards. In accord-
41 ance with such standards, and before any draft or final audit or audit
42 report, or portion thereof, may be made public, the comptroller shall
43 send a copy of the draft audit or audit report to the head of the audit-
44 ed agency and provide the agency, in writing, with a reasonable deadline
45 for its review and response. The comptroller shall include copies of any
46 such agency response in any draft or final audit or audit report, or
47 portion thereof, which is made public. The comptroller shall send copies
48 of all final audits and audit reports to the mayor and the council.
49 (c) The comptroller shall establish for his or her office and for all
50 city agencies a uniform system of accounting and reporting based on
51 generally accepted accounting principles.
52 (d) The comptroller shall perform such other functions and duties as
53 may be required by other provisions of this charter or by law.
54 § 5-03. Qualifications.
S. 8578 15
1 The comptroller shall be a citizen of the United States, a qualified
2 elector of the city, and shall have been a resident of the city for at
3 least one year immediately preceding his or her election.
4 § 5-04. Deputy comptroller.
5 The comptroller shall appoint and at pleasure remove a deputy comp-
6 troller who in case of a vacancy in the office or in case of the illness
7 or inability of the comptroller to act shall have the same powers and
8 perform the same duties as the comptroller. The qualifications of the
9 nominee for the position of deputy comptroller shall be submitted to the
10 council by the comptroller and the nominee may be requested to appear in
11 person before the council to respond to questions concerning those qual-
12 ifications.
13 § 5-05. Vacancy.
14 (a) Any vacancy in the office of comptroller shall be filled by
15 special election in accordance with the provisions of this charter. In
16 the event of a vacancy in the office of the comptroller or whenever by
17 reason of sickness, absence from the city or suspension from office, the
18 comptroller shall be prevented from attending to the duties of the
19 office, the deputy comptroller shall act as comptroller.
20 (b) Within seven days of the occurrence of a vacancy in the office of
21 comptroller, the mayor shall proclaim the date for the special election
22 required by this subdivision and such election shall take place thirty
23 days after said proclamation. The mayor shall provide notice of such
24 proclamation to the city clerk and board of elections and publish notice
25 thereof, and the board of elections shall mail notice of such election
26 to all registered voters within the city and shall conduct such special
27 election thirty days after the proclamation.
28 (c) A party nomination of a candidate for the special election to fill
29 a vacancy in the office of comptroller for the remainder of the unex-
30 pired term shall be made in the manner prescribed by the rules of the
31 party.
32 (d) An independent nominating petition for the nomination of candi-
33 dates to fill the vacancy must be signed by registered voters numbering
34 five per centum of the total number of votes cast for governor at the
35 last gubernatorial election in the city, excluding blank and void votes,
36 except that not more than two thousand signatures shall be required upon
37 any such petition.
38 (e) Any vacancy in the office of comptroller that occurs after July
39 tenth and on or before September nineteenth in any year shall be filled
40 at the general election held in such year.
41 (f) Any vacancy that occurs on or after September twentieth in any
42 year and not later than thirty-seven days before the first Tuesday in
43 December shall be filled at a special election to be held on the first
44 Tuesday in December in such year.
45 A person elected to fill a vacancy in the office of comptroller at a
46 special election shall take office immediately upon qualification and
47 fill the vacancy for the remainder of the unexpired term.
48 Chapter 6
49 The Budgetary Process:
50 Expense and Capital
51 § 6-01. Budgetary responsibilities of the mayor.
52 (a) The mayor shall annually prepare and submit to the council prelim-
53 inary and executive budgets, each of which shall present a complete
54 financial plan for the city and its agencies for the ensuing fiscal year
55 and the three succeeding fiscal years. Each such budget shall consist of
S. 8578 16
1 three parts: the expense budget, which shall set forth proposed appro-
2 priations for the operating expenses of the city including debt service,
3 and interfund transfers; the capital budget and program, which shall set
4 forth proposed appropriations for capital projects; and the revenue
5 budget, which shall set forth the estimated and anticipated revenues and
6 receipts of the city, as well as any other anticipated sources and uses
7 of funds.
8 (b) The mayor shall appoint the director of the budget who shall
9 assist the mayor in the preparation and the administration of the budg-
10 et. The director shall perform all such duties in regard to the budget
11 and related matters as the mayor may direct. The director shall have the
12 power personally or through representatives, to survey each agency for
13 the purpose of ascertaining its budgetary requirements. The director may
14 require any agency, or any officer or employee, to furnish data and
15 information and to answer inquiries pertinent to the exercise of any of
16 the director's duties in regard to the budget and related matters.
17 § 6-02. Spending pursuant to appropriations.
18 (a) No money, except for grants or gifts from private entities, shall
19 be paid from any fund under the management of the city, or any fund
20 under the management of any agency or officer of the city, or any other
21 entity the majority of the members of whose board are city officials or
22 are appointed directly or indirectly by city officials, except in
23 pursuance of an appropriation by the council or other specific legal
24 authorization provided, however, that:
25 1. if at any time the council shall fail to make an appropriation for
26 the payment of debt service on any debts of the city as they fall due,
27 or for the payments to the several sinking funds, the officer responsi-
28 ble for the collection of taxes shall set apart, from the first revenues
29 thereafter received applicable to the general fund of the city, a sum
30 sufficient to pay such amounts and shall so apply such sum; and
31 2. money, the ownership and equitable title of which belongs to an
32 individual, corporation, organization or government other than the city
33 and which is being held by any agency or officer of the city pending
34 transfer of such money to such individual, corporation, organization or
35 government in accordance with the terms and conditions pursuant to which
36 it was placed in the custody of such agency or officer, may be trans-
37 ferred to such individual, corporation, organization or government by
38 such agency or officer without an appropriation by law provided such
39 transfers are made in accordance with such terms and conditions; and
40 3. money or other financial resources may only be transferred from one
41 fund to another without specific statutory authorization for such a
42 transfer if that money or those other financial resources are being
43 loaned temporarily to such other fund and an accurate accounting and
44 reporting of the balance of financial resources in each fund and of the
45 amount due by each fund to each other fund is made at the end of each
46 month; and
47 4. grants or gifts from private entities exempt from the requirements
48 of this section, and expenditures of such funds, shall be subject to
49 disclosure, at least annually, by the responsible agency, officer or
50 entity in a form and containing such information as the mayor shall
51 prescribe for this purpose by rule.
52 (b) The head of each agency of the city, and each entity the majority
53 of the members of whose board are city officials or individuals
54 appointed directly or indirectly by city officials, shall, on or before
55 the fifteenth of October in each year, submit to the mayor and the coun-
56 cil, in such form as the mayor shall prescribe, a statement of the
S. 8578 17
1 sources, amounts and disposition of all money received by such agency or
2 entity, or by a unit or officer of such agency during the preceding
3 fiscal year, other than money appropriated for the use of such agency or
4 entity by the council, or money paid by such agency or entity into the
5 city treasury and reported in the annual report of the comptroller for
6 such fiscal year. The mayor shall ensure that copies of such statements
7 are available for public inspection, and shall designate a city officer
8 to maintain copies of such statements for such purpose.
9 § 6-03. Fiscal year.
10 The fiscal year of the city shall commence on July first in each year
11 and shall terminate at midnight on the ensuing June thirtieth.
12 § 6-04. Budgetary process and timeline.
13 Except where noted otherwise, each step should be taken not later than
14 the dates indicated below.
15 (a) Ten-year capital strategy.
16 1. Draft: November first in each even-numbered year.
17 2. Report and hearing on the first draft: January sixteenth in each
18 odd numbered year.
19 3. Mayor's issuance: April twenty-sixth in each odd numbered year.
20 4. Comparison of adopted budget and ten-year capital strategy: thirty
21 days after the budget is adopted in each year.
22 (b) Revenue estimation report of the comptroller and mayor.
23 1. The comptroller shall certify to the mayor the actual revenues for
24 the previous fiscal year: October thirty-first.
25 2. The mayor shall report comparing actual revenues to estimated
26 revenues in the budget as adopted for the previous fiscal year: November
27 fifteenth.
28 (c) Departmental estimates and the mayor's preliminary budget public
29 hearings: such date as the mayor may direct.
30 (d) Report of the comptroller on capital debt and obligations: Decem-
31 ber first.
32 (e) Report of the comptroller on the state of the city's finances to
33 the council: December fifteenth.
34 (f) Preliminary certificate of the mayor on capital debt and obli-
35 gations to the council and comptroller: January sixteenth. At any time
36 up to the submission of the executive capital budget to the council, the
37 mayor may amend such preliminary certificate.
38 (g) Preliminary budget submitted to the council: January sixteenth.
39 (h) Finance commissioner's estimate of assessed valuation, and state-
40 ment of taxes due and uncollected submitted to the mayor and council:
41 February fifteenth.
42 (i) Comptroller's statement of debt service: March first.
43 (j) The council's operating budget. March tenth: the council shall
44 approve and submit to the mayor estimates of its financial needs for the
45 ensuing fiscal year.
46 (k) Council committees' preliminary budget hearings on:
47 1. program objectives and fiscal implications of preliminary budget,
48 draft ten year capital strategy, city planning director's report on the
49 draft strategy, and the status of capital projects and expense appropri-
50 ations previously authorized; and
51 2. recommendations for any changes in the unit of appropriation struc-
52 ture, or any change in the memorandum of understanding of the terms and
53 conditions regarding such units of appropriations; and
54 3. the council's findings and the net effect of the changes recom-
55 mended on the preliminary capital budget shall not exceed the maximum
56 amount set forth in the preliminary certificate: March twenty-fifth.
S. 8578 18
1 (l) Executive budget, the four-year financial plan and budget message
2 with any accompanying reports and schedules submission for the ensuing
3 fiscal year: April twenty-sixth.
4 (m) Proposed local laws and home rule requests necessary to implement
5 the recommendations made in the executive budget: as soon after April
6 twenty-sixth as is practicable.
7 (n) Executive budget hearings: the council shall hold public hearings
8 on the budget as presented by the mayor between May sixth and twenty-
9 fifth.
10 (o) Amendment and adoption of the executive budget: by June fifth.
11 1. The council may alter the contents of the budget within the total
12 revenues estimated by the mayor and the maximum debt for capital, except
13 for the amounts set aside for the repayment of debt.
14 2. The budget when adopted by the council shall become effective imme-
15 diately, except appropriations for the council or appropriations added
16 to the mayor's executive budget by the council or any changes in terms
17 and conditions or in the memorandum of understanding regarding such
18 terms and conditions shall be subject to the mayor's veto.
19 3. If an expense budget has not been adopted by the fifth of June, the
20 expense budget and tax rate adopted as modified for the current fiscal
21 year shall be deemed to have been extended for the new fiscal year until
22 such time as a new expense budget has been adopted.
23 4. If a capital budget and a capital program have not been adopted by
24 the fifth of June the unutilized portion of all prior capital appropri-
25 ations shall be deemed reappropriated.
26 (p) Veto of the mayor.
27 1. The mayor, not later than the fifth day after the council has acted
28 upon the budget or capital program submitted with the executive budget,
29 may disapprove:
30 (i) any increase or addition to any such bill or program;
31 (ii) any change in any term or condition of the budget;
32 (iii) any change in a memorandum of understanding regarding the terms
33 and conditions; or
34 (iv) any item, term, condition, or provision of a memorandum included
35 in the budget. The mayor's objections shall be returned in writing to
36 the council by such date.
37 2. The council by a two-thirds vote of all the members may override
38 any disapproval of the mayor; however, if no action by the council is
39 taken within ten days of such disapproval, the expense budget shall be
40 deemed adopted as modified by the mayor's disapprovals.
41 (q) Statement of the amount of the budget and estimate by the mayor.
42 1. The mayor shall submit to the council, immediately upon the
43 adoption of a budget, a statement of the amount of the budget as
44 approved by the council for the ensuing fiscal year and the mayor shall
45 prepare and submit to the council not later than the fifth of June an
46 estimate of the probable amount of:
47 (i) receipts into the city treasury during the ensuing fiscal year
48 from all the sources of revenue of the general fund; and
49 (ii) all receipts other than those of the general fund and taxes on
50 real property. The mayor may include in the statement of the amount of
51 the budget as approved by the council a confirmation of such amount, and
52 thereby waive mayoral veto power.
53 2. If, as a result of the exercise of the mayor's veto, the amount of
54 the budget for the ensuing fiscal year differs from the amount of the
55 budget approved by the council, not later than two days after the budget
56 is finally adopted the mayor shall prepare and submit to the council a
S. 8578 19
1 statement setting forth the amount of the budget for the ensuing fiscal
2 year, and the council shall, if necessary, fix new annual tax rates.
3 3. The mayor, prior to establishing the final estimate of revenues for
4 the ensuing fiscal year as required by this section, shall consider any
5 alternative estimate of revenues and which is accompanied by a statement
6 of the methodologies and assumptions upon which such estimate is based
7 in such detail as is necessary to facilitate official and public under-
8 standing of such estimates.
9 4. Any person or organization may, prior to May fifteenth, submit to
10 the mayor an official alternative estimate of revenues for consideration
11 by the mayor. Such estimate shall be in a form prescribed by the mayor.
12 (r) Fixing of tax rates.
13 1. The council shall fix the annual tax rates immediately upon the
14 approval of the budget. The council shall deduct the total amount of
15 receipts as estimated by the mayor from the amount of the budget, for
16 the ensuing fiscal year, and shall cause to be raised by tax on real
17 property such sum as shall be as nearly as possible but not less than,
18 the balance so arrived at, by fixing tax rates in cents and thousandths
19 of a cent upon each dollar of assessed valuation. The tax rates shall be
20 such as to produce a balanced budget within generally accepted account-
21 ing principles for municipalities.
22 2. If a budget has not been adopted by the fifth of June, the tax
23 rates adopted for the current fiscal year shall be deemed to have been
24 extended for the new fiscal year until such time as a new budget is
25 adopted.
26 3. In the event the mayor exercises the veto power, the council shall,
27 if necessary, fix new annual rates not later than the date the budget is
28 finally adopted, in accordance with the requirements of paragraph one of
29 subdivision (s) of this section.
30 (s) Completing the assessment rolls and fixing of tax rates.
31 Notwithstanding the provisions of the above subdivisions or any other
32 provisions of law to the contrary:
33 1. if the city council has not fixed the tax rates for the ensuing
34 fiscal year on or before the fifth of June, the commissioner of finance
35 shall be authorized to complete the assessment rolls using estimated
36 rates and to collect the sums therein mentioned according to law. The
37 estimated rates shall equal the tax rates for the current fiscal year;
38 2. if, subsequent to the fifth of June, the council shall, fix the tax
39 rates for the ensuing fiscal year at percentages differing from the
40 estimated rates, real estate tax payments shall nevertheless be payable
41 in accordance with paragraph one of this subdivision at the estimated
42 rates. However, in such event, prior to the first of January in such
43 fiscal year, the commissioner of finance shall cause the completed
44 assessment rolls to be revised to reflect the tax rates fixed by the
45 council, and an amended bill for the installment or installments for
46 such fiscal year due and payable on or after the first of January shall
47 be submitted to each taxpayer in which whatever adjustment may be
48 required as a result of the estimated bill previously submitted to the
49 taxpayer shall be reflected.
50 (t) Appropriation, certification and publication.
51 Not later than the day after the budget is finally adopted the budget
52 and the several amounts therein specified as appropriations or units of
53 appropriation shall be and become appropriated to the several purposes
54 therein named. The budget shall thereupon be filed in the offices of the
55 comptroller and the city clerk, and shall be published forthwith.
56 (u) Council completion of assessment rolls.
S. 8578 20
1 At such annual meeting to adopt the budget the council shall cause to
2 be set down in the assessment rolls, opposite to the several sums set
3 down as the valuation of real property, the respective sums, in dollars
4 and cents, to be paid as tax thereon, rejecting the fractions of a cent.
5 It shall also cause to be added and set down the aggregate valuations of
6 the real property, and shall transmit to the comptroller of the state by
7 mail a certificate of such aggregate valuation.
8 (v) Collection of real property tax.
9 1. Immediately upon the completion of the assessment rolls, the city
10 clerk shall produce the proper warrants authorizing and requiring the
11 commissioner to collect the several sums therein mentioned according to
12 law. Such warrants need be signed only by the speaker of the council and
13 countersigned by the city clerk. Immediately thereafter and on or
14 before the thirtieth of June, the assessment rolls of the city as
15 corrected according to law and finally completed, or a fair copy there-
16 of, shall be delivered by the speaker to the commissioner with the prop-
17 er warrants, so signed and counter signed, annexed thereto. At the same
18 time the speaker shall notify the comptroller of the amount of taxes in
19 each book of the assessment rolls so delivered.
20 2. The commissioner upon receiving the assessment rolls and warrants
21 shall immediately cause the assessment rolls and warrants to be filed
22 with the city clerk.
23 (w) Mayor's financial plan update: thirty days after budget adopted.
24 § 6-05. Format of expense budget departmental estimates, preliminary
25 expense budget, and executive expense budget.
26 (a) The expense budget departmental estimates, the preliminary expense
27 budget, and the executive expense budget for each year shall consist of
28 proposed units of appropriation for personal service and proposed units
29 of appropriation for other than personal service for the ensuing fiscal
30 year.
31 (b) Each agency head, for the departmental estimates, and the mayor,
32 for the executive budget, shall submit:
33 1. a statement of the impact of the proposed units of appropriation on
34 the level of services to be provided during the ensuing fiscal year; and
35 2. for each community within the city as identified in the council's
36 hearings on local and neighborhood budget needs, a written response to
37 each of the expense budget priorities included in the committee's recom-
38 mendations of budget priorities submitted in accordance with provisions
39 of this charter, including the disposition of each such priority and a
40 meaningful explanation of any disapprovals contained in such estimates
41 or budget.
42 (c) Each proposed unit of appropriation shall represent the amount
43 requested for personal service or for other than personal service for a
44 particular program, purpose, or activity within an agency, department,
45 organization or institution; provided, however, that a single unit of
46 appropriation for personal service or a single unit of appropriation for
47 other than personal service may represent the amount requested for more
48 than one particular program, purpose, or activity for an agency, depart-
49 ment, organization or institution if the council has adopted, on the
50 recommendation of the mayor, or if the council has adopted on its own
51 initiative and the mayor has approved, a resolution setting forth the
52 names, and a statement of the programmatic objectives, of each program,
53 purpose, or activity for an agency, department, organization, or insti-
54 tution to be included in such a single unit of appropriation. Copies of
55 such resolutions must be included as an appendix to any preliminary
56 budget, executive budget, and adopted budget to which they apply. If,
S. 8578 21
1 in accordance with such a resolution, a proposed unit of appropriation
2 for other than personal service shall represent the total amount
3 requested for other than personal service for more than one proposed
4 unit of appropriation for personal service, the amount of such unit of
5 appropriation for other than personal service which is allocable to each
6 unit of appropriation for personal service shall be set forth for infor-
7 mational purposes at the end of each such unit of appropriation for
8 personal service. If, in accordance with such a resolution, a proposed
9 unit of appropriation for personal service shall represent the total
10 amount requested for personal service for more than one proposed unit of
11 appropriation for other than personal service, the amount of such unit
12 of appropriation for personal service which is allocable to each unit of
13 appropriation for other than personal service shall be set forth for
14 informational purposes at the end of each such unit of appropriation for
15 other than personal service.
16 (d) Each proposed unit of appropriation contained in the departmental
17 estimates, the preliminary expense budget and the executive expense
18 budget shall be accompanied by a statement of the programmatic objec-
19 tives of the program, purpose, activity for the agency, department,
20 organization or institution involved.
21 (e) Each proposed unit of appropriation contained in the departmental
22 estimates and the executive budget shall be supported by line items
23 showing how the total amount of such unit is determined.
24 (f) The departmental estimates shall be in such form and contain such
25 further information as may be required by the mayor or by law. Such
26 departmental estimates shall be public records and which shall at all
27 reasonable times be open to public inspection.
28 (g) For each city agency that has local service districts within
29 communities as defined by local law, where practicable, shall contain a
30 statement of proposed direct expenditures in meaningful categories of
31 information, in each such service district.
32 § 6-06. Preliminary expense budget.
33 The preliminary expense budget shall contain proposed expenditures and
34 a forecast of revenues for the ensuing fiscal year, including, for each
35 tax revenue source which represents five percent or more of the total
36 forecast of tax revenues, a detailed statement of the methodology and
37 assumptions used to determine the forecast of revenues estimated to be
38 received from such source in sufficient detail to facilitate official
39 and public understanding of the manner in which such forecasts are made,
40 shall indicate proposed units of appropriations for personal service and
41 for other than personal service, shall include a financial plan covering
42 estimates of expenditures and revenues for the four ensuing fiscal years
43 in such years, shall include the departmental estimates of agency
44 expenditures for the ensuing fiscal year together with proposed sources
45 of revenue for each unit of appropriation specified therein and shall
46 present a plan to ensure balance between the expense and revenue budgets
47 during the ensuing fiscal year.
48 § 6-07. Contents of the executive expense budget.
49 (a) There shall be included in the budget:
50 1. Units of appropriation, prepared according to this chapter, in such
51 amounts and upon such terms and conditions as may be determined by the
52 mayor. Such appropriations shall include:
53 (i) the amounts required by law to be appropriated to the several
54 sinking funds as certified by the comptroller;
55 (ii) the amount required to pay the interest and principal of city
56 obligations as certified by the comptroller;
S. 8578 22
1 (iii) an amount, as certified by the comptroller, equal to the average
2 of all expenditures during each of the five preceding fiscal years for
3 the payment of the expense of the removal of snow and ice, exclusive of
4 salaries and wages of regular employees of the city except for overtime
5 work and for work on Sundays and holidays, and exclusive of the purchase
6 of equipment;
7 (iv) the several amounts which are payable from sources other than the
8 real estate tax levy, provided however that amounts appropriated pursu-
9 ant to chapter nine of this charter which are allocable to a particular
10 program, purpose, activity or institution, shall be included for infor-
11 mational purposes only;
12 (v) such other amounts as may be required by law;
13 (vi) such amounts as shall be determined in the manner provided in
14 this chapter to be necessary to pay the expenses of conducting the busi-
15 ness of the city for the ensuing fiscal year and for other lawful public
16 purposes; and
17 (vii) a reserve for unanticipated contingencies.
18 2. An identification of the proposed appropriations, being proposed by
19 agency and project type and, within project type, by personal service
20 and other than personal service, for the maintenance of all major
21 portions of the capital plant, as such terms are defined in section 6-16
22 of this chapter.
23 3. The terms and conditions under which appropriations shall be admin-
24 istered.
25 (b) All such units of appropriation and other amounts shall be set
26 forth without deduction of revenues from any source except as otherwise
27 provided by law.
28 (c) The budget message, which shall not be deemed a part of the budg-
29 et, shall include:
30 1. an explanation;
31 2. itemized information and supporting schedules;
32 3. recommendations for any changes in revenue sources and fiscal oper-
33 ations;
34 4. an itemized statement of the actual revenues and receipts and
35 accruals of the general fund and of all other revenue sources;
36 5. a listing of the sources and amounts of all revenues and other
37 monies of a nonrecurring nature;
38 6. a four-year financial plan, containing:
39 (i) for each agency, for all existing programs, forecasts of expendi-
40 tures for the ensuing fiscal year and the succeeding three fiscal years
41 at existing levels of service;
42 (ii) forecasts of revenue by source from existing sources of revenue
43 for the ensuing fiscal year and the succeeding three fiscal years; and
44 (iii) for each new or expanded program, an indication of when such
45 program is projected to be fully implemented and a forecast of the annu-
46 al recurring costs for such program or program expansion after it is
47 fully implemented;
48 7. for each agency, a comparison of the proposed appropriations for
49 the ensuing fiscal year;
50 8. an explanation of principal changes in performance goals and indi-
51 cators;
52 9. an itemized statement, covering the city's entire capital plant,
53 except for those portions of the capital plant which have been committed
54 to the care and control of the board of education;
55 10. a presentation of the maintenance activities proposed by the mayor
56 to be completed during the ensuing fiscal year;
S. 8578 23
1 11. a statement of any substantive changes in the methodology and
2 assumptions used to determine the revenue estimates;
3 12. a statement of the implications for the orderly development of the
4 city; and
5 13. a certificate setting forth the maximum amount of debt and
6 reserves.
7 § 6-08. Adoption of expense budget and memorandum of understanding.
8 Adoption of expense budget with regard to a memorandum of understand-
9 ing contained in the terms and conditions.
10 (a) The council may increase, decrease, add or omit any amount in the
11 expense budget as submitted by the mayor, or change any terms and condi-
12 tions of the amount in that category, as stipulated in this chapter; the
13 mayor may disapprove any increase or addition to the amounts in the
14 categories, or any change in any term and condition of the budget, as
15 stipulated in this chapter, the mayor's disapproval may be overridden by
16 a two-thirds vote of all of the members of the council. As part of these
17 procedures the final adopted budget shall have within its terms and
18 conditions a memorandum of understanding, the final format and/or the
19 actual character of which shall be determined jointly by the actions of
20 the council and mayor consistent with the provisions for adopting a
21 local law. Such memorandum of understanding may include the provisions
22 by which the executive may have to schedule the timing and amounts of
23 expenditure or delay of expenditure and in what ways those expenditures
24 may be scheduled or delayed and if agreed to through the normal
25 provisions of adopting the budget, the priority of re-scheduling and or
26 delaying those appropriated expenditures or any part thereof those units
27 of appropriations. These details of the memorandum of understanding are
28 not to preclude or substitute for normal budget modification procedures
29 as detailed below; they are intended to deal with those circumstances
30 not covered by budget modification and/or normal impoundment procedures
31 as detailed below.
32 (b) All spending for services shall be in accordance with the terms
33 and conditions of the expense budget as adopted; provided, however, that
34 during any fiscal year the mayor shall notify the council of any
35 proposed modification of such a term or condition, at least thirty days
36 before the intended effective date of the modification in the term or
37 condition. These provisions are not to affect, hinder or substitute for
38 the normal procedures regarding budget modification or impoundment as
39 stipulated elsewhere in this chapter.
40 § 6-09. Appropriations for goods, services or construction.
41 Appropriations for the procurement of goods, services or construction
42 or the provision of services, utilities, or facilities by a department
43 responsible for general services for other agencies and institutions in
44 accordance with the authority of a department responsible for general
45 services under the provisions of this charter shall be made to a depart-
46 ment responsible for general services but shall be segregated under the
47 name of the agency or institution for which they are intended and shall
48 be considered and accounted for as appropriated for such agency or
49 institution. Nothing herein contained shall prevent the designation of
50 part of such appropriations as a general stores account or under other
51 appropriate designation to enable a department responsible for general
52 services to maintain a stock in anticipation of requirements or to
53 provide services, utilities or facilities for joint use by more than one
54 agency or institution.
55 § 6-10. Expense budget administration.
S. 8578 24
1 (a) Except as otherwise provided by law, no unit of appropriation
2 shall be available for expenditure by any city agency until schedules
3 fixing positions and salaries and setting forth other expenses within
4 the units of appropriation are established pursuant to the adopted budg-
5 et, the administration of which is subject to the provisions of this
6 chapter, the state civil service law, and other applicable law.
7 (b) The mayor shall establish and may modify for each agency:
8 1. quarterly spending allotments for each unit of appropriation and
9 2. aggregate position and salary limits for each unit of appropri-
10 ation, which shall be made available for public review upon adequate
11 notice. No agency shall expend any sum in excess of such quarterly
12 spending allotments, or exceed aggregate position and salary limits. The
13 mayor may set aside specified sums as necessary reserves which shall not
14 be included in the quarterly spending allotments until released by the
15 mayor. Each agency shall administer all monies appropriated or available
16 for programs and purposes of the agency in accordance with quarterly
17 allotment plans proposed by the agency and approved or modified by the
18 mayor. Each such plan shall set forth by units of appropriation for the
19 quarter of the fiscal year during which it is to remain in effect:
20 (i) rates of expenditures for personal services and other than
21 personal services;
22 (ii) ceilings on the total number of uniformed, civilian and pedagog-
23 ical employees; and
24 (iii) the total amount of funds to be spent or committed by the agency
25 during such quarter.
26 (c) The mayor shall keep informed during the course of each fiscal
27 year, of the progress of expenditures and the receipt of revenues, and
28 it shall be the duty of all agencies, when requested by the mayor, to
29 supply all information needed for this purpose.
30 (d) The mayor may assume direct responsibility for the administration
31 of the schedule required to be filed by the agency head pursuant to
32 subdivision (a) of this section when in the mayor's judgment the fiscal
33 condition of the city so requires or when an agency:
34 1. is expending funds in excess of the quarterly spending allotments;
35 2. is otherwise not complying with spending allotments or aggregate
36 position and salary limits; or
37 3. is not maintaining adequate accounts pursuant to requirements of
38 this charter.
39 (e) Whenever the mayor determines, pursuant to the provisions of this
40 charter or other relevant statutes, that the full amount of any appro-
41 priation should not be available for expenditure during the fiscal year,
42 the mayor shall notify the council of such determination and the impli-
43 cations and consequences of those impoundments for service levels and
44 programmatic goals affected. The mayor shall respond in writing to a
45 request by the council for an explanation of why an appropriation should
46 not be expended.
47 (f) The head of each agency shall establish the procedure by which
48 charges and liabilities may be incurred on behalf of the agency. Such
49 procedures shall ensure that no officer or employee, on behalf of or in
50 the name of the agency, shall incur a liability or an expense for any
51 purpose in excess of the amount appropriated or otherwise authorized
52 therefor, and no charge, claim or liability shall exist or arise against
53 the city for any sum in excess of the amount appropriated or otherwise
54 authorized for the particular purpose.
55 § 6-11. Budget modification.
S. 8578 25
1 (a) Subject to the quarterly spending allotments and aggregate posi-
2 tion and salary limits established pursuant to applicable provisions of
3 this charter, of the state civil service law and of other law, changes
4 in schedules, within units of appropriation, may be made by the head of
5 each agency. Any such changes shall be reported to the mayor and the
6 comptroller not more than ten days after the effective date thereof, and
7 shall be made available for public review upon adequate notice.
8 (b) The mayor during any fiscal year may transfer part or all of any
9 unit of appropriation to another unit of appropriation, except that when
10 any such transfer:
11 1. shall be from one agency to another; or
12 2. shall result in any unit of appropriation having been increased or
13 decreased by more than five per centum or fifty thousand dollars, which-
14 ever is greater, from the budget as adopted for such unit of appropri-
15 ation, the mayor shall notify the council of the proposed action. Within
16 thirty days after the first stated meeting of the council following the
17 receipt of such notice, the council may disapprove the proposed action.
18 Written notice of any transfer pursuant to this subdivision shall be
19 given to the comptroller and shall be published as soon as possible
20 after such transfer.
21 (c) The provisions of this section shall not be deemed to authorize
22 any transfer from appropriations required by law.
23 (d) The council may during any fiscal year transfer part or all of any
24 unit of appropriation within the council appropriation to any other
25 council unit of appropriation for any of its programs or projects or for
26 any other purpose, solely by adoption of a council resolution. Each such
27 transfer shall be published and written notice thereof shall be given to
28 the mayor and to the comptroller not less than ten days before the
29 effective date thereof.
30 (e) The procedures and required approvals pursuant to the amendment,
31 adoption of the budget, veto of the mayor and appropriation, certif-
32 ication and publication of the budget, without regard to the dates spec-
33 ified therein, shall be followed in the case of:
34 1. any proposed amendment to the budget respecting the creation of new
35 units of appropriation,
36 2. the appropriation of new revenues from any source except for reven-
37 ues from federal, state or private sources in regard to the use of which
38 the city has no discretion provided, however, that the mayor shall give
39 notice to the council of the receipt and proposed utilization of any
40 such revenues, or
41 3. the proposed use by the city of previously unappropriated funds
42 received from any source. Any request by the mayor respecting an amend-
43 ment to the budget that involves an increase in the budget shall be
44 accompanied by a statement of the source of current revenues or other
45 identifiable and currently available funds required for the payment of
46 such additional amounts.
47 § 6-12. Quarterly account of council budget.
48 The council shall be required to publish quarterly accounting of its
49 actual and planned expenditures, in sufficient detail to indicate the
50 positions and their purposes which have been funded, as well as the
51 activities and categories of materials and supplies purchased.
52 § 6-13. General fund.
53 All revenues of the city, of every administration, department, board,
54 office and commission thereof, and of every other division of government
55 within the city, from whatsoever source except taxes on real estate, not
S. 8578 26
1 required by law to be paid into any other fund or account shall be paid
2 into a fund to be termed the "general fund."
3 § 6-14. Expenditure reports.
4 Any public or private agency, authority, corporation, board or commis-
5 sion which receives city funds and is not otherwise subject to the
6 requirements of section 6-10 of this chapter shall submit quarterly
7 reports of the expenditure of such funds to the mayor in such form and
8 detail as the mayor may prescribe.
9 § 6-15. Self-dealing among members of the governing boards of charita-
10 ble institutions.
11 (a) Any charitable institution which receives any payment from the
12 city of Staten Island charitable institutions budget shall pass and
13 implement by-laws which will:
14 1. require disclosure to the agency responsible for the administration
15 of charitable institutions budget and approval by such agency of the
16 material terms of any contract or transaction, direct or indirect,
17 between an institution and any member of its governing board, any part-
18 nership of which he or she is a member or any corporation in which he or
19 she holds ten per centum or more of the outstanding common stock;
20 2. preclude any member of the governing board of any institution from
21 sharing, participating or benefiting, directly or indirectly, in the
22 proceeds from any contract or transaction entered into between the
23 institution and any third party unless such participation or benefit has
24 been approved in advance by the agency and the governing board of the
25 institution has approved the transaction by a two-thirds majority
26 excluding the vote of member to be benefitted;
27 3. require each member of its governing board to submit to the agency
28 each year a disclosure statement including such member's name, home
29 address, principal occupation and business interests from which such
30 member or such member's spouse received income equal to or greater than
31 ten percent of their aggregate gross income during the previous year.
32 (b) At the discretion of the agency, any payment or any portion of any
33 payment may be withheld from any institution which has failed to pass
34 and implement such by-laws.
35 § 6-16. Definitions of capital projects and budget terms.
36 As used in this charter:
37 (a) The term "capital project" shall mean:
38 1. a project which provides for the construction, reconstruction,
39 acquisition or installation of a physical public betterment or improve-
40 ment which would be classified as a capital asset under generally
41 accepted accounting principles for municipalities or any preliminary
42 studies and surveys relative thereto or any underwriting or other costs
43 incurred in connection with the financing thereof;
44 2. the acquisition of property of a permanent nature including wharf
45 property;
46 3. the acquisition of any furnishings, machinery, apparatus or equip-
47 ment for any public betterment or improvement when such betterment or
48 improvement is first constructed or acquired;
49 4. any public betterment involving either a physical improvement or
50 the acquisition of real property for a physical improvement consisting
51 in, including or affecting:
52 (i) streets and parks;
53 (ii) bridges and tunnels;
54 (iii) receiving basins, inlets and sewers, including intercepting
55 sewers, plants or structures for the treatment, disposal or filtration
S. 8578 27
1 of sewage, including grit chambers, sewer tunnels and all necessary
2 accessories thereof;
3 (iv) the fencing of vacant lots and the filling of sunken lots;
4 (v) any other project allowed to be financed by the local finance law,
5 with the approval of the mayor and the comptroller; or
6 (vi) any combination of the above.
7 (b) The term "pending" shall mean not yet completed.
8 (c) The term "standards" for each category of capital projects to
9 which they apply shall include: maximum gross and net areas allowed;
10 types of programs which may be operated in the facility; performance
11 requirements for environmental systems; allowable materials and
12 finishes; maximum areas allowed for different functions and activities;
13 approximate cost limits per square foot of construction; and such other
14 items designated by the mayor or by resolution of the council.
15 (d) The term "scope of project" or "proposed scope of project" shall
16 mean a description of a capital project included in the capital budget
17 that contains specific guidelines for the design and implementation of
18 such project consistent with the standards for the appropriate category
19 of capital projects and includes each of the following items of informa-
20 tion which are relevant to the capital project involved:
21 1. purposes and public to be served;
22 2. programs to be conducted in the facility;
23 3. gross and net amounts of space and bulk for any building or struc-
24 ture and for areas for different functions and activities;
25 4. identification of required architectural, engineering or other
26 consultants and estimated fees for such consultants;
27 5. estimated completion dates for scope, design and construction;
28 6. total estimated project costs, including costs for site acquisi-
29 tion, preparation and tenant relocation, design, construction and equip-
30 ment;
31 7. estimated expenditures for the project for each fiscal year until
32 its completion;
33 8. estimated annual costs to operate programs within the facility when
34 fully staffed and to maintain the facility; and
35 9. such other information as shall be required by the mayor or by
36 resolution of the council.
37 (e) The term "cost" shall include the contract liabilities and expend-
38 iture incurred for work in carrying out the physical improvement and
39 interest thereon, and the compensation to be made to the owner of any
40 real property acquired for the improvement as determined by a court or
41 by agreement, and interest thereon.
42 (f) The term "expenses" shall mean any expenses incurred in relation
43 to an assessable improvement exclusive of cost and of damages assessed
44 by the board of assessors.
45 (g) The term "street," as used in this chapter, shall include street,
46 avenue, road, alley, lane, highway, boulevard, concourse, parkway,
47 driveway, culvert, sidewalk, crosswalk, boardwalk, and viaduct, and
48 every class of public road, square and place, except marginal streets.
49 (h) The term "real property" shall include all lands and improvements,
50 lands under water, waterfront property, the water of any lake, pond or
51 stream, all easements and hereditament, corporeal or incorporeal, and
52 every estate, interest and right, legal or equitable, in lands or water,
53 and right, interest, privilege, easement and franchise relating to the
54 same, including terms for years and liens by way of judgment, mortgage
55 or otherwise.
S. 8578 28
1 (i) The terms "maintenance" or "maintain" shall denote those activ-
2 ities necessary to keep the relevant portion of the capital plant in
3 good repair so as to preserve its structural integrity and to prevent
4 its deterioration.
5 (j) The term "major portion of the capital plant" shall mean:
6 1. any capital asset
7 (i) which is a capital facility or system comprising a component of
8 the public domain or infrastructure general fixed assets of the city or
9 a building comprising a component of the general fixed assets of the
10 city; and
11 (ii) which, as of the effective date of this charter, or, as a result
12 of any reconstruction or expansion after such date, has a replacement
13 cost of at least ten million dollars and a useful life of at least ten
14 years, or if purchased or constructed after such date has an original
15 cost of at least ten million dollars and an original useful life of at
16 least ten years; and
17 2. any other capital asset of the city designated by the mayor for the
18 purposes of this section; provided, however, that it shall not include
19 any asset which is leased to or otherwise under the cognizance and
20 control of a public benefit corporation or which is otherwise covered,
21 pursuant to state law, by requirements which are substantially similar
22 to the requirements of this section.
23 § 6-17. Format of departmental estimates for capital projects, prelim-
24 inary capital budget and executive capital budget.
25 The departmental estimates for capital projects and the executive
26 capital budget shall consist of a detailed estimate of all capital
27 projects pending or which the agency head, for departmental estimates,
28 or the mayor, for the executive budget, believes should be undertaken
29 within the ensuing fiscal year and the three succeeding fiscal years.
30 Each agency head, and the mayor, for the executive budgets, shall submit
31 a written response to each of the capital budget priorities included in
32 the council's recommendation of budget priorities for local and neigh-
33 borhood needs submitted in accordance with the section on preliminary
34 budget hearings of this chapter. Such responses shall include the
35 response of the agency head and the mayor, as appropriate, regarding the
36 disposition of each such priority and meaningful explanations of any
37 disapprovals contained in such estimates or budget.
38 § 6-18. Preliminary capital budget.
39 The preliminary capital budget statements shall consist of:
40 (a) a financial plan covering estimates of capital expenditures for
41 the four ensuing fiscal years;
42 (b) departmental estimates for capital projects as provided in section
43 6-19 of this chapter together with the cash flow requirements and
44 proposed sources of funding for each project included in such estimates;
45 (c) a capital program status report which sets forth the appropri-
46 ations for each project included in the capital budget for the current
47 fiscal year together with the expenditures to date; and
48 (d) a summary description of the purpose of each capital project and
49 the needs it will fulfill, the schedule for beginning and constructing
50 the project, its period of probable usefulness and an appropriate main-
51 tenance schedule.
52 § 6-19. Executive capital budget.
53 (a) The executive capital budget shall set forth separately each capi-
54 tal project, and shall include:
55 1. a brief description and the location of each project; the total
56 estimated cost of the project; the appropriations which have been previ-
S. 8578 29
1 ously adopted for this project; the amount of appropriations recommended
2 to be adopted for the ensuing fiscal year the aggregate amount of which
3 shall not exceed the amount in the mayor's certificate; the amount of
4 appropriations required thereafter to complete the project; the sources
5 of funds for the project including state, federal, private and other
6 funds; the period of probable usefulness; the estimated additional annu-
7 al maintenance and operation costs; and any terms and conditions of the
8 project; the estimated dates of completion of final scope, final design
9 and final construction; and
10 2. a listing of all pending projects; and any recommendations that any
11 pending projects be modified, rescinded or postponed accompanied by a
12 statement of the budgetary impact of any such action.
13 (b) The executive capital program shall set forth for both program
14 categories and individual projects:
15 1. a statement for each of the three succeeding fiscal years of the
16 total dollar amounts necessary to complete projects initiated in prior
17 years and projects proposed in the executive budget the amounts neces-
18 sary for projects proposed to be initiated in future years and the
19 amounts necessary for amendments and contingencies; and
20 2. a statement of the likely impact on the expense budget of staffing,
21 maintaining and operating the capital projects included in or contem-
22 plated by the capital program.
23 § 6-20. Amendment.
24 (a) Upon receipt of a recommendation in writing from the mayor in
25 manner specified herein, the council may amend the capital budget or
26 capital program in the same manner as the adoption of the capital budget
27 and capital program including the right to approve the proposed amend-
28 ment as submitted or to increase or decrease the amounts of funds
29 proposed to be appropriated thereby, but only if funds are available
30 within the capital budget and the applicable program category of the
31 capital program, provided, however that the mayor may only recommend
32 such an amendment relating to an appropriation included in the capital
33 budget pursuant to this charter.
34 (b) Upon the adoption of any such amendment by the council, it shall
35 be certified by the mayor, the speaker of the council and the city clerk
36 and the capital budget shall be amended accordingly.
37 (c) Not later than five days after such certification such amendment
38 shall be filed in the office of the comptroller and shall be published
39 forthwith.
40 § 6-21. Restrictions on capital projects.
41 (a) No obligations of the city shall be issued or authorized for or on
42 account of any capital project not included in a capital budget, or for
43 which funds have not been reserved in an appropriate program category of
44 the capital program for any year of such program in which it is project-
45 ed that funds will be expended for the completion of the project, or in
46 excess of the maximum amount of obligations which may be issued on
47 account of such project as fixed in such capital budget; and no amount
48 may be expended on account of any capital project in excess of the
49 amount appropriated for such purposes in a capital budget, except that
50 the amount appropriated for such purposes may be increased by the mayor
51 by not more than fifteen per centum thereof in order to meet any costs
52 required to advance such project. Notice of any such increase shall be
53 provided to the council together with a statement of identifiable funds
54 available for payment of the increase.
55 (b) Funds included in the capital budget for a capital project that
56 are not obligated or committed during the fiscal year in which appropri-
S. 8578 30
1 ated shall not be obligated or committed in the subsequent fiscal year
2 unless reappropriated in a subsequent capital budget or an amendment
3 thereto. A capital project included in a capital budget that is not
4 initiated by the expenditure of funds within two years after its inclu-
5 sion in the budget shall be eliminated from the budget.
6 (c) The city may issue capital debt only to finance capital projects
7 as defined in this charter. The capital budget may not include expense
8 items that are properly includable only in the expense budget, as deter-
9 mined in accordance with the accounting principles set forth in the
10 state comptroller's uniform system of accounts for municipalities, as
11 the same may be modified by the state comptroller, in consultation with
12 the city comptroller, for application to the city.
13 (d) No capital project shall be included in the proposed executive
14 capital budget or otherwise adopted as part of the capital budget or as
15 an amendment thereto unless sufficient funds are available within the
16 appropriate general program category of the capital program for any year
17 of such program in which it is projected that additional appropriations
18 will be necessary for the completion of the project.
19 § 6-22. Site selection.
20 (a) The selection of sites for capital projects shall be pursuant to
21 local law.
22 (b) To the maximum extent feasible, final approval of a site for a
23 capital project shall occur prior to or simultaneously with the approval
24 of the scope of the project pursuant to this chapter.
25 § 6-23. Project initiation; commitment plan.
26 (a) The inclusion of a capital project in the capital budget as
27 adopted or amended shall constitute a direction and order to the agency
28 to proceed with the preparation of a scope of project pursuant to this
29 chapter unless sufficient planning funds for such purpose have not been
30 appropriated in the capital budget. The head of the agency shall notify
31 the comptroller of the amount of appropriated planning funds to be
32 encumbered for such purpose.
33 (b) The approval of a scope of project for a capital project pursuant
34 to this chapter, including the amount of obligations necessary to
35 finance the design and construction of the project, shall constitute a
36 direction and order to the agency to design the project, unless suffi-
37 cient funds for such purpose have not been appropriated in the capital
38 budget or are otherwise not available within the appropriate program
39 category of the capital program. Such approval shall constitute notifi-
40 cation to the comptroller of the comptroller's authorization to expend
41 appropriated design funds.
42 (c) The approval of the final design for a capital project pursuant to
43 this chapter shall constitute a direction and order to the agency
44 responsible for construction to prepare bid and award documents and to
45 proceed to bid, unless sufficient funds for such purpose have not been
46 appropriated in the capital budget or are otherwise not available within
47 each year of the capital program in which it is projected that funds
48 will be expended for the completion of the project. Such approval shall
49 constitute notification to the comptroller of the comptroller's authori-
50 zation to expend appropriated construction funds.
51 (d) The mayor shall require each agency to prepare and submit periodic
52 reports, in regard to the progress of its capital projects, including
53 schedules and clear explanations of any delays for particular projects
54 and summary information on each agency's record on such matters. Such
55 reports shall be published at least three times each year: within ninety
56 days of the adoption of the capital budget; with the preliminary capital
S. 8578 31
1 budget; and with the executive capital budget, copies of such reports
2 shall be transmitted by the mayor to the council. Such reports shall
3 include, for each project, the dates set in the adopted capital budget
4 for the completion of scope, design, and construction and any changes in
5 such dates.
6 1. The report issued with the executive budget shall include, for each
7 new capital project being proposed in the executive budget, a
8 description of the project including, to the extent practicable, the
9 information required to be included in a scope of project.
10 2. The report issued following the adoption of the budget shall
11 include, for each capital project added to the budget, a description of
12 the project including, to the extent practicable, the information
13 required to be included in a scope of project.
14 3. The report issued following the adoption of the budget shall
15 include, for each capital project for which a substantial change was
16 made, a revised description of the project including, to the extent
17 practicable, the information required to be included in a scope of
18 project.
19 (e) Any capital project which results in the acquisition or
20 construction of a capital asset which will be subject to the require-
21 ments of this charter shall contain a provision requiring a comprehen-
22 sive manual setting forth the useful life of the asset and explaining
23 the activities necessary to maintain the asset throughout such useful
24 life.
25 (f) The mayor may issue directives and adopt rules and regulations in
26 regard to the execution of capital projects, consistent with the
27 requirements of subdivisions (a), (b), (c) and (d) of this section,
28 which shall be binding upon all agencies.
29 § 6-24. Improvements payable other than by city.
30 Any owner of real property or any other person interested may apply to
31 the council to authorize an improvement referred to in paragraph one of
32 subdivision (a) of section 6-16 of this chapter, not included in the
33 capital budget. The council may authorize such improvement to be made by
34 the city or by such owner or other person interested upon compliance
35 with the following conditions:
36 (a) such owner or group or other persons interested shall enter into
37 an agreement with the city, whereby they will either authorize the city,
38 or themselves agree, to perform such work in accordance with such plans
39 and specifications approved by the agencies having jurisdiction there-
40 over and under their supervision;
41 (b) all of such work shall be done for the account of or at the sole
42 cost and expense of the person or persons applying for permission to do
43 the same, who shall furnish to the city such security and in such amount
44 as may be required to secure the payment of such cost and expense or the
45 proper performance of the said work in the time and in the manner agreed
46 upon, and shall further secure the city, in the latter case, against
47 latent defects in such work for a period of two years;
48 (c) such improvement shall be approved by the city planning department
49 and reviewed pursuant to local law and charter provisions; and
50 (d) any agreement providing for the performance of such work and the
51 furnishing of such security, shall be first approved by the council
52 before the same shall become effective.
53 § 6-25. Standards for capital projects.
54 The mayor shall prepare general standards and cost limits for catego-
55 ries of capital projects and standards for the preparation of the scope
56 of project for capital projects of various types. Such standards and
S. 8578 32
1 limits shall be submitted by the mayor to the council for review. The
2 proposed standards shall become effective thirty days after they have
3 been filed with the council unless within that time the council modifies
4 or disapproves them or part of them, after conducting a public hearing.
5 Any modification by the council shall be subject to disapproval by the
6 mayor in accordance with provisions of this charter and any such disap-
7 proval shall be subject to override by the council in accordance with
8 this charter.
9 § 6-26. Scope of project.
10 (a) Each agency, with respect to a capital project under its jurisdic-
11 tion included in a capital budget, shall prepare a proposed scope of
12 project within appropriated planning funds. The proposed scope of
13 project, or, in the case of a delay, an explanation for such delay along
14 with a revised schedule, shall be submitted to the mayor and the coun-
15 cil, by the date specified in the adopted capital budget in which the
16 capital project is included. Such proposed scope shall identify all
17 substantial differences between the guidelines for the capital project
18 as contained in such scope and the description of the capital project
19 contained in the report issued pursuant to this charter at the time such
20 project was proposed in the executive budget or following the budget
21 adoption in which such project was added to the capital budget.
22 (b) Not later than sixty days after receipt of the proposed scope of
23 project from an agency pursuant to subdivision (a) of this section, the
24 mayor shall approve, modify, or disapprove the proposed scope of project
25 and notify the agency and the council. In the case of a scope approved
26 by the mayor with modifications, such notification shall include a copy
27 of the scope as approved.
28 (c) No scope of project shall be approved by the mayor unless:
29 1. it contains the information required by paragraph four of subdivi-
30 sion (d) of section 6-16 of this chapter and it conforms to the applica-
31 ble standards for the type of project adopted pursuant to this chapter,
32 and
33 2. funds are available within the appropriate program category of the
34 capital program that can be reserved for each fiscal year required to
35 complete the project.
36 § 6-27. Design of capital project.
37 (a) The proposed design and final design for a capital project shall
38 be made available for review by the council. The mayor or the mayor's
39 representative shall review the final design to determine its conform-
40 ance with the approved scope of project pursuant to this chapter.
41 (b) Works of art may be provided for each capital project which
42 involves the construction or the substantial reconstruction of a city-
43 owned public building or structure the intended use of which requires
44 that it be accessible to the public generally or to members of the
45 public participating in, requiring or receiving programs, services or
46 benefits provided thereat. For the purposes of this section a police
47 precinct house and a firehouse shall be deemed to be such buildings.
48 Chapter 7
49 Planning Department
50 § 7-01. Planning department.
51 There shall be a department of city planning consisting of a planning
52 director and such subordinate employees as are required to administer
53 the planning program described herein.
54 § 7-02. Planning director.
S. 8578 33
1 The mayor shall appoint and shall have the power to remove the plan-
2 ning director, who shall have had at least five years of appropriate
3 professional land use experience. The planning director shall be the
4 head of the planning department, and shall be responsible for the proper
5 conduct of the affairs of the department and for the execution of the
6 planning program prescribed in this charter and in local laws and rules
7 consistent herewith.
8 § 7-03. Powers, duties and functions.
9 (a) The planning director, through the planning department, shall:
10 1. advise and assist the mayor and the council in regard to the phys-
11 ical planning and public improvement aspects of the development of the
12 city and on all matters related to the planning program prescribed in
13 this charter and in local law and rules consistent herewith;
14 2. prepare the general plan and revisions thereof, and development
15 plans at least every four years in the year following the mayoral
16 election and annual reviews thereof, for the improvement and development
17 of the city;
18 3. establish procedures for processing revisions to the general plan
19 and to the four-year and one-year development plans;
20 4. hold public hearings on such plans and revisions thereof and trans-
21 mit them, with findings and recommendations thereon, through the mayor
22 to the council for its consideration and action;
23 5. prepare zoning resolutions, maps and rules and regulations and any
24 revision or amendments thereto in accordance with the general plan;
25 6. prepare local laws or resolutions and rules and regulations govern-
26 ing the subdivision of lands within the city and any revisions or amend-
27 ments thereto;
28 7. administer the zoning and subdivision local laws or resolutions and
29 rules and regulations adopted thereunder and any regulatory laws or
30 resolutions which may be adopted to supplement or replace such resol-
31 utions;
32 8. recommend periodic amendments to zoning resolutions and subdivision
33 laws or regulations, and provide opportunity for taxpayers to recommend
34 periodic amendments to zoning resolutions and subdivision laws or regu-
35 lations;
36 9. hold public hearings on land subdivision and zoning resolutions and
37 amendments thereto, transmit such proposed resolutions, with findings
38 and recommendations thereon, through the mayor to the council for its
39 consideration and action;
40 10. establish procedures for the review of land utilization applica-
41 tions;
42 11. review subdivision plats and zoning petitions;
43 12. approve applications for special permits and variances within the
44 jurisdiction of the department of city planning under the zoning resol-
45 ution;
46 13. collect data on population, housing and other relevant social and
47 economic indicators to serve as a basis for planning recommendations;
48 and may conduct continuous studies and policy analyses on economic
49 development, urban design, capital improvements, environmental impact
50 assessment and such other subjects as the mayor or council may from time
51 to time request;
52 14. be custodian of the city map and thereon record all changes legal-
53 ly authorized;
54 15. administer the program prescribed by law with respect to the
55 establishment and regulation of landmarks, portions of landmarks, land-
56 mark sites, interior landmarks, scenic landmarks and historic districts;
S. 8578 34
1 16. hold public hearings on a proposed designation of a landmark,
2 landmark site, interior landmark, scenic landmark or historic district,
3 after notice of the proposed designation, notice of the hearing, and an
4 opportunity for comment to the affected property owner or owners;
5 17. submit to the council a report on the impact of any such desig-
6 nation whether of a district or a landmark to the zoning resolution,
7 projected public improvements, and any plans for the development,
8 growth, improvement or renewal of the area involved, and a recommenda-
9 tion for council action with respect to any such designation;
10 18. review the executive capital program and budget for conformance to
11 the purposes of the general plan and development plans prior to
12 submission of the executive capital program and budget to the council
13 and make a written report of his or her findings to the mayor and coun-
14 cil at the time of submission of such executive capital program and
15 budget;
16 19. prepare, in consultation with the director of the budget, the
17 draft ten-year capital strategy, and hold hearings on such draft, and
18 report his or her findings to the mayor and to the council;
19 20. consult with the appropriate State officials concerned with plan-
20 ning and environmental quality to assure compliance with State guide-
21 lines and oversee implementation of laws that require environmental
22 reviews of actions taken by the city; and
23 21. perform such other functions as are assigned by the mayor or other
24 provisions of law.
25 § 7-04. General plan.
26 The general plan shall set forth the city's broad policies for the
27 long range development of the city. It shall contain statements of the
28 general social, economic, environmental and design objectives to be
29 achieved for the general welfare and prosperity of the people of the
30 city through government action, city, state or federal. The statements
31 shall include, but not be limited to, policy and development objectives
32 to be achieved with respect to the distribution of social benefits, the
33 most desirable uses of land within the city, the overall circulation
34 pattern and the most desirable population densities within the several
35 areas of the city. In conformance with such development objectives and
36 policies the plan shall identify the general location, character, and
37 extent of streets and thoroughfares, parks, recreation facilities, sites
38 for public buildings and structures, city and privately owned utilities,
39 transportation systems and facilities, housing, community facilities,
40 future land use for all classifications and such other elements,
41 features and policies as will provide for the improvement of the city
42 over the next ten years.
43 § 7-05. Development plans.
44 Development plans shall present detailed means for implementing and
45 accomplishing the development objectives and policies of the general
46 plan within the several parts of the city. The mayor shall have a
47 comprehensive four-year development plan which shall recommend a gener-
48 alized land use development pattern to guide the growth of the city over
49 the succeeding four-year period and a one-year development plan that
50 delineates the city's proposed land use development pattern for a
51 succeeding twelve month period and is based upon the development goals
52 and objectives specified in the city's four-year development plan.
53 § 7-06. Adoption of the general plan and development plans.
54 (a) The mayor shall submit annually to the council such plans that
55 will include a general plan, four-year and one-year development plans
56 for all property within the city limits. The council shall adopt the
S. 8578 35
1 general plan or revisions thereof and development plans or amendments
2 thereto by local law. Any local law or resolution adopting or revising
3 the general plan shall be laid over for at least two weeks after intro-
4 duction. The mayor shall not certify as to the necessity for the immedi-
5 ate consideration of any general plan, development plans, or revisions
6 or amendments thereto. Public notice shall be provided at least ten days
7 before adoption by the council. Upon adoption, every local law or
8 resolution shall be presented to the mayor, and the mayor may approve or
9 disapprove it pursuant to applicable provisions governing the approval
10 or disapproval of a local law or resolution. If the mayor approves the
11 local law, the mayor shall sign it and return it to the clerk; it shall
12 then be deemed to have been adopted. If the mayor disapproves it, he or
13 she shall return it to the council with his or her objections stated in
14 writing. The council at its next regular meeting may reconsider the same
15 and if the votes of two-thirds of all the council members be cast in
16 favor of repassing such local law, it shall be deemed adopted, notwith-
17 standing the objections of the mayor.
18 (b) The general plan and all development plans shall be kept on file
19 in the department of city planning.
20 (c) The approved general plan and development plans shall be used as a
21 guide for the preparation of the city's capital improvement program and
22 capital budget.
23 (d) The mayor shall maintain an up-to-date zoning map of all proper-
24 ties within the city limits.
25 (e) Following the annual updating and adoption of the city's develop-
26 ment plans, the council shall amend the city's zoning ordinance to
27 conform it to the updated development plans in accordance with proce-
28 dures prescribed by general law.
29 § 7-07. Board of Appeals.
30 (a) There shall be a board of appeals which shall consist of five
31 members to be termed commissioners, three of whom shall be appointed by
32 the mayor and two appointed by the council. Members shall serve a stag-
33 gered term of five years.
34 (b) Commissioners shall be chosen for their independence, integrity
35 and civic commitment and for their professional competence in such areas
36 as planning, architecture, and engineering. The mayor shall designate
37 one of the members to serve as chair and one of the members to serve as
38 vice-chair who shall act as chair in the absence of the chair or in the
39 event that a vacancy exists in the office of chair.
40 (c) Every member of the board shall receive a salary, which shall not
41 be reduced during his or her term of office except in case of a general
42 reduction of salaries and in proportion to reductions of salaries of
43 other officers with similar salaries. A member shall not engage in any
44 other occupation, profession or employment. Members shall attend the
45 hearings and executive sessions of the board, and shall perform such
46 other duties as may be required by the chair.
47 (d) Vacancies shall be filled in the same manner as for an original
48 appointment for the unexpired term of the member whose place has become
49 vacant and with a person having his or her qualifications.
50 (e) Any member may be removed by the mayor on proof of official
51 misconduct, or of negligence in official duties, inability to perform
52 his or her duties; but before removal he or she shall receive a copy of
53 the charges and shall be entitled to a hearing before the mayor and to
54 the assistance of counsel at such hearing.
55 § 7-08. Meetings.
S. 8578 36
1 Meetings of the board shall be held at the call of the chair and at
2 such other times as the board may determine. The chair, or in his or her
3 absence the acting chair, may administer oaths and compel the attendance
4 of witnesses. All hearings before the board shall be open to the public
5 and shall be before at least three members of the board, and a concur-
6 ring vote of at least three members shall be necessary to a decision to
7 grant an application or an appeal, to revoke or modify a variance,
8 special permit or other decision of the board, or to make, amend or
9 repeal a rule or regulation. The board shall keep minutes of its
10 proceedings, showing the vote of each member upon every question, or if
11 absent or failing to vote, indicating such fact, and shall also keep
12 records of its examinations and other official action. Such minutes and
13 such records shall be public records.
14 § 7-09. Powers and duties.
15 The board shall have the power:
16 (a) to hear and determine appeals from the actions of the planning
17 director in the administration of the zoning and subdivision resolutions
18 and any rules and regulations adopted pursuant thereto, which appeal
19 shall be sustained only if the board finds that the director's action
20 was based on an erroneous finding of a material fact, or that the direc-
21 tor had acted in an arbitrary or capricious manner or had manifestly
22 abused discretion;
23 (b) to hear and determine appeals from the actions of the planning
24 director on petitions for varying the application of the zoning resol-
25 ution with respect to a specific parcel of land and may grant such a
26 variance upon the ground of unnecessary hardship if the record shows
27 that:
28 1. the applicant would be deprived of the reasonable use of such land
29 or building if it were used only for the purpose allowed in that zone;
30 2. the request of the applicant is due to unique circumstances and not
31 the general conditions in the neighborhood, so that the reasonableness
32 of the neighborhood zoning is not drawn into question; and
33 3. the use sought to be authorized by the variance will not alter the
34 essential character of the locality, provided however that the board
35 shall specify the particular evidence which supports the granting of a
36 variance;
37 (c) to hear and determine appeals from and review any recommendation
38 by the planning director to designate a landmark, landmark site, interi-
39 or landmark, scenic landmark or historic district;
40 (d) to make, amend and repeal rules and regulations for carrying into
41 effect the provisions of the laws, resolutions, rules and regulations in
42 respect to any subject-matter jurisdiction whereof is conferred by law
43 upon the board, and to include in such rules and regulations provisions
44 applying to specific conditions and prescribing means and methods of
45 practice to effectuate such provisions and for carrying into effect the
46 powers of the board;
47 (e) to review, upon motion of any member of the board, any rule, regu-
48 lation, amendment or repeal thereof, and any order, requirement, deci-
49 sion or determination from which an appeal may be taken to the board
50 under the provisions of this chapter or of any law, or of any rule,
51 regulation or decision of the board; but no such review shall prejudice
52 the rights of any person who has in good faith acted thereon before it
53 is reversed or modified; and
54 (f) to revoke or modify, upon due notice and hearing, variances and
55 special permits previously granted under the zoning resolution if the
56 terms and conditions of such grants have been violated.
S. 8578 37
1 § 7-10. Procedure on appeals.
2 (a) An appeal may be taken by an aggrieved party.
3 (b) Such appeal may be taken within such time as shall be prescribed
4 by the board by general rule, by filing with the officer from whom the
5 appeal is taken and with the board a notice of appeal, specifying the
6 grounds thereof. The officer from whom the appeal is taken shall forth-
7 with transmit to the board all the papers constituting the record upon
8 which the action appealed from was taken.
9 (c) The board shall fix a reasonable time for the hearing of appeals,
10 and give due notice thereof to the parties, and decide the same within a
11 reasonable time. If the appeal is from an order revoking a permit or
12 approval, the hearing shall be no later than at the third scheduled
13 hearing of the board following the date of filing of the appeal, or five
14 weeks following such date, whichever is sooner, and the decision of the
15 board shall be rendered expeditiously. Upon the hearing any party may
16 appear in person or by agent and/or attorney.
17 (d) Any decision of the board under this section may be reviewed as
18 provided by law.
19 Chapter 8
20 Franchises
21 § 8-01. Franchises.
22 All franchises, revocable consents and concessions shall be awarded in
23 accordance with the following procedures:
24 (a) The council shall have the power to grant, renew or extend any
25 franchise, revocable consent or concession which extends for a period of
26 three or more years, provided, however, that any franchise, revocable
27 consent or concession which extends for a period of ten years or more
28 shall require the approval of two-thirds of all the members; and
29 (b) The mayor shall have the power to enter into an agreement to
30 grant, renew or extend a franchise, revocable consent or concession
31 which extends for a period of less than thirty-six months.
32 Chapter 9
33 Contracting
34 § 9-01. Procurement.
35 Except as otherwise provided in this charter or by statute, all goods,
36 services or construction to be paid for out of the city treasury or out
37 of monies under the control of or assessed or collected by the city
38 shall be procured as prescribed in this chapter.
39 § 9-02. Conditions.
40 The circumstances under which procurement may be used for the
41 provision of technical, consultant or personal services, shall include
42 circumstances where the use of procurement is:
43 (a) cost effective or necessary to obtain special expertise;
44 (b) necessary to provide a service not needed on a long-term basis;
45 (c) necessary to avoid a conflict of interest; or
46 (d) where personnel or expertise is not available in city government.
47 § 9-03. Procedures.
48 All contracts shall be awarded in accordance with the following proce-
49 dures:
50 (a) The mayor as the chief elected executive shall through his or her
51 appointees have the power to enter into contracts on behalf of the city
52 of Staten Island.
53 (b) The comptroller shall, in accordance with provisions of this char-
54 ter and with practices promulgated by state law, certify all contracts,
S. 8578 38
1 within thirty days of receipt of such contract, provided there is no
2 cause not to certify. If the comptroller determines that a contract
3 cannot be certified, he or she shall so notify the mayor and the common
4 council within thirty days of receipt of such contract. Reasons not to
5 certify shall include but not be limited to debarment of
6 vendors/contractors, unreasonable and/or onerous terms and conditions,
7 financial problems or inconsistencies, and any other major cause not
8 advantageous to the city that the comptroller can identify and justify
9 through appropriate documentation.
10 (c) All contracts above ten thousand dollars, shall be let by compet-
11 itive bidding, in compliance with current rules, regulations, guidelines
12 and practices set forth by an appropriate national government procure-
13 ment officers professional association or the conventions set forth in
14 the generally accepted accounting practices or procedures as promulgated
15 by the New York State comptroller's office, as agreed to by the mayor,
16 the comptroller and approved by the common council; except that, when an
17 emergency as defined by local law is declared by the mayor to exist and
18 is certified by the comptroller, expedited rules as promulgated by the
19 mayor or the mayor's designee shall apply.
20 (d) Contracts of ten thousand dollars or less may be let by sole
21 source bid when an agency by rule determines that there is only one
22 source for the required good, service or construction. The agency
23 contract file shall contain a written determination that only one source
24 is available for the required good, service or construction, including
25 the process by which the agency made such determination. The agency
26 shall provide to the comptroller written documentation to support its
27 intention to let a sole source contract. This documentation shall
28 include, but not be limited to, the qualifications of the vendor and the
29 specific requirements of the contract.
30 (e) If, for any contract above ten thousand dollars, there is an
31 alteration, renewal, or change in the terms and conditions or the scope
32 of work which results in an increase or decrease of greater than five
33 per centum of the original contract amount, then those contract changes
34 must be certified by the comptroller.
35 § 9-04. Notification of contract opportunities and awards.
36 Each agency shall publish in the appropriate publication and in news-
37 papers of city, state or national distribution and trade publications,
38 notice of:
39 (a) the solicitation of bids or proposals pursuant to this chapter
40 where the value of a contract for goods, services or construction is
41 estimated to be above ten thousand dollars;
42 (b) the award of a contract for goods, services or construction
43 exceeding ten thousand dollars in value. Each such notice of award shall
44 indicate the name of the contractor, the dollar value of the contract,
45 the procurement method by which the contract was let;
46 (c) the comptroller shall promulgate rules providing for the publica-
47 tion and content of notices of contract actions required by this chap-
48 ter. Such rules shall include but not be limited to provisions regarding
49 the timing and frequency of notices, the required duration of solicita-
50 tion periods, and the form and content of notices.
51 § 9-05. Agency contract files.
52 Each agency shall maintain files containing all information pertaining
53 to the solicitation, award and management of each contract of the agen-
54 cy. The agency contract files shall contain copies of each determi-
55 nation, writing or filing required by this chapter pertaining to a
56 contract including the circumstances under which the procurement was let
S. 8578 39
1 in accordance with section 9-02 of this chapter, and copies of all costs
2 effectiveness analyses. Agency contract files shall be open to public
3 inspection with adequate protection for information which is confiden-
4 tial.
5 § 9-06. Centralized contract and contractor information.
6 The mayor shall ensure that copies of all city contracts and other
7 standard information regarding city contracts and contractors are
8 located in a central place which is accessible to the public. Such
9 information shall include:
10 (a) a copy of the contract;
11 (b) information regarding the method by which the contract was let;
12 (c) such standard documents as the contractor is required to submit,
13 which shall be updated regularly;
14 (d) information regarding the contractor's qualifications and perform-
15 ance;
16 (e) any evaluations of the contractor and any contractor responses to
17 such evaluation;
18 (f) any audits of the contract and any contractor responses to such
19 audits;
20 (g) any decisions regarding the suspension or debarment of the
21 contractor; and
22 (h) any analysis and determination of cost effectiveness.
23 The mayor shall ensure adequate public access to the information on
24 contracts and contractors which shall be maintained in a manner to
25 facilitate public review, with due consideration for the need to
26 protect, where appropriate, the confidentiality of any such information.
27 § 9-07. Adverse impact on public employees.
28 In the event that a proposed contract for goods, services or
29 construction may adversely affect public employees, the public employees
30 union, if any, shall be advised no later than three months in advance of
31 the contract being let of the nature, scope, and approximate dates, of
32 the contract, and the reasons therefor. Except that, when an emergency
33 as defined in subdivision (c) of section 9-03 of this chapter is in
34 effect, some or all of the provisions of this section may be omitted or
35 suspended for the period of the emergency, but only for those contracts
36 directly relevant to the management of that emergency or as a result of
37 the emergency.
38 The public employer will provide such union as soon as practicable,
39 with information, in sufficient detail, so that the union may prepare a
40 proposal designed to demonstrate the cost effectiveness of keeping the
41 work in-house. Such information shall include, but not be limited to,
42 applicable solicitation to vendors, winning bids, descriptions of
43 services to be provided by vendors, and the agency's estimated direct
44 operating and administrative costs of contracting out the work.
45 Not less than thirty days prior to the award of the contract, the
46 union shall have the opportunity to make a formal proposal to the public
47 employer demonstrating that it is cost effective or that it is in the
48 best interest of the public employer to continue to perform such work
49 in-house. The public employer shall consider such proposal before making
50 a final determination.
51 Chapter 10
52 Referendum and Amendment
53 § 10-01. Referendum on pending legislation.
S. 8578 40
1 (a) The people of the city of Staten Island reserve to themselves the
2 right to require the council to vote on proposed laws and amendments to
3 the local laws as hereinafter provided.
4 (b) The people shall have the power to require the council to vote on
5 proposed bills and resolutions by initiative petition. Each initiative
6 petition shall support a bill or resolution which has been introduced in
7 the council and shall be signed by five per centum of the total votes
8 cast on Staten Island at the previous general election.
9 (c) An initiative petition when signed by the requisite number of
10 voters shall be submitted to the Staten Island board of elections which
11 shall promptly determine whether the petition meets the requirements of
12 subdivision (b) of this section. If the Staten Island board of elections
13 determines those requirements are satisfied it shall certify to the
14 speaker of the council that the bill or resolution supported by the
15 petition is required to be considered in the council with the vote of
16 each member present recorded.
17 (d) No petition shall be certified to the council after May first in
18 any year. A petition which is not certified by the Staten Island board
19 of elections before May first shall be certified to the council on the
20 first day of the next legislative session.
21 (e) The council shall have sixty days from receipt of a certified
22 petition to vote on the bill or resolution which is the subject of the
23 petition. If the council fails to vote on such bill or resolution within
24 sixty days, such bill or resolution shall be deemed to have passed.
25 (f) City funds, facilities or employees may not be used to solicit
26 signatures on an initiative petition or to support or oppose the signing
27 of such a petition provided, however, that elected officials may solicit
28 such signatures or oppose the signing of such a petition.
29 (g) The council shall, by local law, prescribe the form and content
30 of, and the procedures for, initiative petitions consistent with this
31 section. The council may, by local law, provide for the reporting of the
32 identity of any person who expends money to affect any initiative peti-
33 tion and the amount of any money so expended.
34 § 10-02. Charter amendment.
35 (a) Amendments to this charter shall be adopted by referendum only,
36 except for those changes that are syntax and/or spelling changes which
37 may be effected, altered or amended by local law as adopted by the coun-
38 cil and the mayor as provided for in this charter. The council may
39 place an amendment on the ballot by a vote of two-thirds of all the
40 members.
41 (b) Referendum in order to amend the charter shall take place as a
42 ballot issue to be decided by affirmative vote of the majority of the
43 qualified electors of the city voting thereon, it shall take effect as
44 prescribed in such referendum.
45 (c) The referendum shall be placed on the ballot by petition of quali-
46 fied electors of not less than five per centum of the total vote cast in
47 the city of Staten Island at the last gubernatorial general election.
48 The petition shall be filed in the office of the clerk of the city of
49 Staten Island for the submission to the electors of the city at the next
50 general election therein held not less than sixty days after such
51 filing. The proposed amendment shall be set forth in full in such peti-
52 tion which may be made upon separate sheets and the signatures of each
53 shall be authenticated in the manner provided by the New York state
54 election law. If within ten days after the filing of such petition a
55 written objection thereto be filed with the office of the city clerk and
56 the board of elections, the Supreme Court or any justice thereof of the
S. 8578 41
1 appropriate judicial district shall determine any question arising ther-
2 eunder and make such order as justice may require as prescribed in the
3 state election law.
4 Chapter 11
5 Property of the City
6 § 11-01. Inalienable property.
7 The rights of the city in and to its water front, ferries, wharf prop-
8 erty, bridges, land under water, public landings, wharves, docks,
9 streets, avenues, highways, parks, waters, waterways and all other
10 public places are hereby declared to be inalienable; but upon closing or
11 discontinuance of any street, avenue, park or other public place, the
12 property may be sold or otherwise disposed of as may be provided by law,
13 and leases of land under water, wharf property, wharves, docks and piers
14 may be made as may be provided by law.
15 § 11-02. Authority to acquire real property.
16 (a) The city may acquire title in fee to real property or any interest
17 therein whenever required for any public or municipal use or purpose or
18 for the promotion of public utility, comfort, health, enjoyment or
19 adornment. Such title or interest shall be acquired according to law by
20 purchase, gift, devise, lease, condemnation or otherwise, and, subject
21 to the provisions of this charter or other law may sell, lease, mort-
22 gage, hold, manage, and control such property as may now or hereafter be
23 owned by it.
24 (b) The council by local law shall prescribe the procedures for all
25 acquisitions of real and personal property by the city, including proce-
26 dures for determining compensation and for appealing from such determi-
27 nation without prejudice to the appellant. In addition to all other
28 requirements of law, written notice of the application to have compen-
29 sation for real property ascertained in any proceeding brought by the
30 city to acquire title to real property shall be given to the owners of
31 all property affected by the proceeding to such application. Such notice
32 shall state the purpose for which the property is to be acquired and the
33 date when such application will be presented and shall be made public
34 not less than ten days prior to such proceeding. Any owner whose proper-
35 ty has been taken in any such proceeding which has not been used for the
36 purpose stated in the proceeding for acquisition shall have the right of
37 first refusal to repurchase such property from the city after the expi-
38 ration of a five-year period from the date of the entry of the final
39 decree in the proceeding for the price paid plus simple interest.
40 § 11-03. Disposal of property of the city.
41 No real property of the city may be sold, leased, exchanged or other-
42 wise disposed of except as specifically provided by law.
43 Chapter 12
44 Personnel Management
45 § 12-01. Declaration of intent.
46 (a) The personnel policies and practices of the city government in
47 furtherance of this charter, the state civil service law and rules and
48 other applicable law shall:
49 1. preserve and promote merit and fitness in city employment;
50 2. ensure that appointments and promotions in city service are made,
51 and that wages are set, without regard to political affiliation, and
52 without unlawful discrimination based on sex, race, color, religion,
53 religious observance, national origin, disability, age, marital status,
S. 8578 42
1 citizenship status or sexual orientation; and promote and support the
2 efficient and effective delivery of services to the public.
3 (b) Consistent with subdivision (a) of this section, the heads of city
4 agencies shall have such powers, duties and responsibilities for person-
5 nel management as they shall require to administer their agencies effec-
6 tively and to supervise, evaluate, motivate, discipline, provide incen-
7 tives for and improve the skills of employees of the city.
8 § 12-02. Department; personnel director.
9 There shall be a department of personnel, the head of which shall be
10 the personnel director. The personnel director shall have all the powers
11 and duties of a municipal civil service commission provided in the state
12 civil service law or in any other statute or local law other than such
13 powers and duties as are by this chapter assigned to the mayor, the city
14 civil service commission or the heads of city agencies.
15 § 12-03. City civil service commission.
16 (a) There shall be a city civil service commission, consisting of
17 three members, not more than two of whom shall be members of the same
18 political party. Members shall be appointed by the mayor, from a list of
19 nominations provided by the screening committee established pursuant to
20 subdivision (b) of this section, for overlapping terms of six years. Of
21 the members first appointed, one shall serve for two years and one for
22 four years and one for six years. The members shall be removable in the
23 manner provided for members of a municipal civil service commission in
24 the state civil service law. A vacancy in such commission shall be
25 filled in the same manner as regular appointments for the balance of the
26 unexpired term. The mayor shall designate a member as chair and vice
27 chair, respectively, for one-year terms. Within appropriations for such
28 purposes, the members of the commission shall be reimbursed on a per
29 diem basis for attendance at regularly scheduled meetings and hearings
30 of the commission.
31 (b) There shall be a screening committee which shall submit to the
32 mayor a list of nominees, which shall include persons with knowledge or
33 experience of the state civil service system, or personnel management,
34 or compensation practices, from which the mayor shall make appointments
35 to the city civil service commission. Such screening committee shall
36 consist of six members, of whom three shall be appointed by the mayor
37 and three shall be appointed by the municipal labor committee. The
38 screening committee shall submit the list of nominees upon the occur-
39 rence of any vacancy on the commission or at least three months prior to
40 the expiration of the term of any incumbent member.
41 (c) The commission shall appoint a counsel, who shall not be employed
42 or retained by any other city agency, and may appoint a secretary and
43 such other subordinates as may be necessary within the appropriation
44 therefor.
45 (d) The civil service commission shall have the power to hear and
46 determine appeals by any person aggrieved by any action or determination
47 of the personnel director made pursuant to section 12-04 of this chapter
48 and may order such relief as it deems appropriate or necessary in
49 accordance with this charter or the state civil service law. Any such
50 appeal shall be taken by application in writing to the commission within
51 thirty days after the action or determination appealed from. The commis-
52 sion shall also have the powers and responsibilities of a municipal
53 civil service commission under section seventy-six of the state civil
54 service law. In accordance with the requirements of this charter, the
55 commission shall promulgate rules of procedure, including rules estab-
S. 8578 43
1 lishing time schedules, for the hearings and determinations authorized
2 by this section.
3 (e) The commission shall have the power and duty to conduct reviews,
4 studies, or analyses of the administration of personnel in the city,
5 including the classification of titles by the personnel director.
6 (f) The commission shall prepare and transmit directly to the mayor
7 departmental estimates as required by this charter. The mayor shall
8 include such proposed appropriations for the commission as a separate
9 agency in the preliminary and executive budgets as are sufficient for
10 the commission to fulfill the obligations assigned to it by this charter
11 or other law.
12 § 12-04. Personnel director; powers and duties.
13 (a) The personnel director shall have the following powers and duties
14 in addition to the powers and duties of a municipal civil service
15 commission provided in the state civil service law, and those vested in
16 the personnel director as the head of the department, except where any
17 specific power or duty is assigned to the mayor, heads of city agencies
18 or the civil service commission pursuant to this chapter:
19 1. to recruit personnel;
20 2. to make studies in regard to the grading and classifying of posi-
21 tions in the civil service, establish criteria and guidelines for allo-
22 cating positions to an existing class of positions, and grade and estab-
23 lish classes of positions;
24 3. to schedule and conduct examinations for positions in the civil
25 service;
26 4. to establish, promulgate and certify eligible lists in the manner
27 provided in the state civil service law, and the rules of the personnel
28 director;
29 5. to determine the appropriateness of eligible lists for the filling
30 of vacancies in the manner provided in the state civil service law and
31 the rules of the personnel director;
32 6. to investigate applicants for positions in the civil service; to
33 review their qualifications, and to revoke or rescind any certification
34 or appointment by reason of the disqualification of the applicant or
35 appointee under the provisions of the state civil service law, and the
36 rules of the personnel director or any other law;
37 7. to review any appointment of persons as provisional employees with-
38 in sixty days after appointment to assure compliance with this charter,
39 the state civil service law, and any rule or regulation issued pursuant
40 to this charter or state civil service law;
41 8. to certify payrolls in accordance with the provisions of the state
42 civil service law and the rules of the personnel director;
43 9. to keep records regarding candidates for appointment to the civil
44 service and officers and employees in the civil service;
45 10. to develop and recommend to the mayor standard rules governing
46 working conditions, vacations and leaves of absence; and career, salary
47 and wage plans providing for the creation, abolition and modification of
48 positions and grades and fixing salaries of persons paid from the city
49 treasury, subject to the provisions of this charter, the state civil
50 service law, other applicable statutes and collective bargaining agree-
51 ments;
52 11. to administer the city-wide incentive, training and development,
53 and other such personnel programs of the city;
54 12. to establish and enforce uniform procedures and standards to be
55 utilized by city agencies in establishing measures, programs and plans
56 to ensure a fair and effective affirmative employment plan for equal
S. 8578 44
1 employment opportunity for minority group members and women who are
2 employed by, or who seek employment with, city agencies. Such procedures
3 shall include a time schedule for the development of such plans which
4 provides for the preparation by each agency of a draft plan, the review
5 of such draft plan by the department of personnel, the equal employment
6 practices commission, and such other agency as the mayor requires, and
7 the consideration by the agency of any comments received on such draft
8 plans prior to the adoption of a final plan as required by section 12-05
9 of this chapter;
10 13. to establish a uniform format to be utilized by all city agencies
11 in the preparation of the quarterly reports required by section 12-05 of
12 this chapter. Such format shall provide for the presentation of statis-
13 tical information regarding total employment, new hiring and promotions
14 in a manner which facilitates understanding of an agency's efforts to
15 provide fair and effective equal opportunity employment for minority
16 group members, women and members of other groups who are employed by, or
17 who seek employment with, city agencies;
18 14. to develop, in conjunction with other city agencies, a clearing-
19 house for information on employment and educational programs and
20 services for minority group members and women; and
21 15. to provide assistance to minority group members and women employed
22 by, or interested in being employed by, city agencies to ensure that
23 such minority group members and women benefit, to the maximum extent
24 possible, from city employment and educational assistance programs.
25 (b) The personnel director shall have the following powers and duties
26 with respect to the personnel management functions assigned to city
27 agencies pursuant to subdivisions (a), (b), (c), and (d) of section
28 12-05 of this chapter:
29 1. to aid in the development of effective and efficient personnel
30 programs and professional personnel staffs in the agencies of the city;
31 and to convene the personnel officers of the agencies from time to time
32 as a personnel council to consider personnel matters of inter-agency or
33 of city-wide concern;
34 2. to approve agency plans and programs pursuant to section 12-05 of
35 this chapter;
36 3. to establish and enforce standards, guidelines and criteria for the
37 personnel management functions assigned to the agencies and to audit
38 performance by the agencies of such personnel functions;
39 4. to reverse or rescind any agency personnel action or decision
40 pursuant to an assignment or delegation of authority in this chapter,
41 upon a finding of abuse after notification to the agency and an opportu-
42 nity to be heard;
43 5. to hear and determine appeals by any person aggrieved by any action
44 or determination of the head of an agency made pursuant to section 12-05
45 of this chapter, subject to review by the civil service commission as
46 provided in subdivision (e) of section 12-03 of this chapter;
47 6. to delegate to the head of an agency personnel management functions
48 assigned to the personnel director where such delegation is not other-
49 wise prohibited by the state civil service law, and pursuant to terms
50 and conditions prescribed by the director;
51 7. to administer personnel programs of a city-wide nature or common to
52 two or more departments where administration by separate agencies would
53 be impracticable and uneconomical;
54 8. to annually publish and submit to the mayor, council and the
55 commission on equal employment practices a report on the activities of
56 the department of personnel and city agencies to provide fair and effec-
S. 8578 45
1 tive affirmative employment practices to ensure equal employment oppor-
2 tunity for minority group members and women who are employed by, or who
3 seek employment with, city agencies. Such report shall include, but not
4 be limited to, an analysis of the city government workforce and appli-
5 cants for such employment by agency, title and classification; a
6 description of each agency's employment practices, policies and
7 programs; an analysis of the effectiveness of the city's efforts to
8 provide fair and effective affirmative employment practices to ensure
9 equal employment opportunity for minority group members and women who
10 are employed by, or who seek employment with, city agencies; and such
11 legislative, programmatic and budgetary recommendations for the develop-
12 ment, implementation or improvement of such activities as the personnel
13 director deems appropriate.
14 (c) The personnel director shall promulgate rules and regulations
15 relating to the personnel policies, programs and activities of city
16 government in furtherance of and consistent with the state civil service
17 law and this chapter. The personnel director shall transmit to the state
18 civil service commission each proposed rule which must be submitted to
19 such commission, including any which establishes or reclassifies titles
20 in the non-competitive or exempt class, within sixty days after the
21 public hearing has been held on such rule.
22 (d) The personnel director shall, at the time requested by the city
23 civil service commission or the equal employment practices commission,
24 provide each commission with all the information which such commission
25 deems necessary to fulfill the duties assigned to it by the charter. The
26 provisions of this subdivision shall not apply to any information which
27 is required by law to be kept confidential or which is protected by the
28 privileges for attorney-client communications, attorney work products,
29 or material prepared for litigation.
30 (e) The personnel director shall submit a quarterly report to the
31 mayor, the council, the civil service commission and the equal employ-
32 ment practices commission. Such report shall specify, by agency and by
33 title, including temporary titles:
34 1. the number of provisional employees at the end of the second month
35 of the quarter;
36 2. the length of time such provisional employees have served in their
37 positions; and
38 3. the actions taken by the city to reduce the number of such provi-
39 sional employees and the length of their service in such positions. Such
40 reports shall be submitted by the last day of March, June, September,
41 and December of each year.
42 § 12-05. Agency heads; powers and duties.
43 (a) Subject to the state civil service law and applicable provisions
44 of this charter, heads of city agencies shall have the following powers
45 and duties essential for the management of their agencies in addition to
46 powers and duties vested in them pursuant to this charter or other
47 applicable law:
48 1. to recruit personnel;
49 2. to participate with the personnel department in job analyses for
50 the classification of positions;
51 3. to allocate individual positions to existing civil service titles;
52 4. to allocate individual managerial or executive positions to manage-
53 rial assignment levels;
54 5. to assist the personnel department in the determination of minimum
55 qualifications for classes of positions and to review and evaluate qual-
56 ifications of candidates for positions in the civil service;
S. 8578 46
1 6. to assist the personnel director in the planning and preparation of
2 open competitive examinations;
3 7. to schedule and conduct tests other than written tests for
4 promotion to competitive class positions;
5 8. to determine whether to hold an open competitive or promotion exam-
6 ination to fill positions in the civil service subject to disapproval of
7 the personnel director within thirty days;
8 9. to plan and administer employee incentive and recognition programs;
9 10. to fill vacant positions within quarterly spending allotments and
10 personnel controls pursuant to this charter;
11 11. to administer and certify eligible lists for classes of positions
12 unique to the agency;
13 12. to make appointments to competitive positions from eligible lists
14 pursuant to subdivision one of section sixty-one of the state civil
15 service law, which authority shall not be abridged or modified by local
16 law or in any other manner;
17 13. to establish and administer performance evaluation programs to be
18 used during the probationary period and for promotions, assignments,
19 incentives and training;
20 14. to conduct training and development programs to improve the
21 skills, performance and career opportunities of employees;
22 15. to ensure and promote equal opportunity for all persons in
23 appointment, payment of wages, development and advancement;
24 16. to administer employee safety programs;
25 17. to maintain personnel records;
26 18. to perform such other personnel management functions as are deleg-
27 ated by the personnel director pursuant to this chapter or that are not
28 otherwise assigned by this chapter;
29 19. to establish measures and programs to ensure a fair and effective
30 affirmative employment plan to provide equal employment opportunity for
31 minority group members and women who are employed by, or who seek
32 employment with, the agency and, in accordance with the uniform proce-
33 dures and standards established by the department of personnel for this
34 purpose, to adopt and implement an annual plan to accomplish this objec-
35 tive. Copies of such plans shall be filed with the mayor, council,
36 department of personnel, equal employment practices commission, and city
37 civil service commission and shall be made available for reasonable
38 public inspection; and
39 20. to provide assistance to minority group members and women inter-
40 ested in being employed by city agencies to ensure that such minority
41 group members and women benefit, to the maximum extent possible, from
42 city employment and educational assistance programs.
43 (b) Within one year from the effective date of this charter, the head
44 of each agency shall prepare and submit to the mayor and the personnel
45 director a plan and schedule for the discharge of the powers and duties
46 assigned in this section. No such plan shall take effect until approved
47 by the mayor.
48 (c) The mayor may modify, suspend, or withdraw for cause any power or
49 duty assigned or delegated to the head of an agency pursuant to this
50 section.
51 (d) Notification prior to each action or decision of an agency pursu-
52 ant to this chapter which changes the status of an individual employee,
53 a position, or a class of positions shall be provided to the personnel
54 director. The head of each agency shall certify on each payroll that all
55 personnel actions and transactions of the agency conform with the
S. 8578 47
1 provisions of the state civil service law and this chapter, the rules of
2 the personnel director and other applicable law.
3 (e) Before any new position in the city service shall be created, the
4 agency head shall furnish the commissioner of finance with a certificate
5 stating the title of the class of positions to which the position is to
6 be allocated. If the position is to be allocated to a new class of posi-
7 tions, the agency head shall request of the personnel director, and the
8 personnel director shall furnish to the agency head and the commissioner
9 of finance, a certificate stating the appropriate civil service title
10 for the proposed position, the range of salary of comparable civil
11 service positions and a statement of the class specifications and line
12 of promotion into which such new position will be placed and any such
13 new position shall be created only with the title approved by the
14 personnel director.
15 (f) The heads of all agencies shall, except as otherwise provided by
16 law, have power to appoint and remove, subject to the provisions of the
17 state civil service law, all chiefs of bureaus and all other officers,
18 employees and subordinates in their respective administrations, depart-
19 ments or offices, without reference to the tenure of office of any
20 appointee and to assign them their duties. Nothing herein shall be
21 construed to preclude the mayor from entering into a collective bargain-
22 ing agreement which provides for a procedure governing the discipline of
23 employees, including their removal.
24 (g) The heads of city agencies or their designated representatives
25 shall fulfill the requirements for agency participation in matters
26 affecting the management of the agency in advance of collective bargain-
27 ing negotiations affecting employees.
28 (h) The head of each city agency shall ensure that such agency does
29 not discriminate against employees or applicants for employment pursuant
30 to federal, state and local law.
31 (i) The head of each city agency shall quarterly publish and submit to
32 the mayor, council, department of personnel, and the equal employment
33 practices commission a report on the agency's efforts during the previ-
34 ous quarter to implement the plan adopted pursuant to this section.
35 (j) The head of each city agency shall include in all employment
36 retention, recruitment, training and promotional program literature,
37 advertisements, solicitations and job applications, such language as may
38 be necessary to effectuate the purpose of this chapter.
39 (k) The head of each city agency shall require each employment agency,
40 or authorized representative of workers with which it has a collective
41 bargaining or other agreement or understanding and which is involved in
42 the performance of recruitment and retention with the agency to furnish
43 a written statement that such employment agency, labor union or repre-
44 sentative shall not discriminate against employees or applicants for
45 employment pursuant to federal, state or local law and that such union
46 or representative will cooperate in the implementation of the agency's
47 obligations pursuant to this chapter.
48 § 12-06. Management service.
49 (a) The personnel director, in consultation with the heads of agen-
50 cies, shall develop and submit to the mayor a city-wide plan and sched-
51 ule for the development of qualified and competent technical, profes-
52 sional, management, administrative, and, supervisory personnel in the
53 civil service to meet the managerial needs of city government. The
54 mayor shall approve, disapprove or modify the plan within one year after
55 the effective date of this charter.
S. 8578 48
1 (b) The city-wide plan shall establish a management service for city
2 agencies and shall provide for:
3 1. membership in the service of employees with significant policy,
4 administrative, supervisory, managerial or professional duties that
5 require the exercise of independent judgment in the scheduling and
6 assignment of work, program management or planning, evaluation of
7 performance or allocation of resources;
8 2. preference for appointment into management service shall be given
9 to qualified civil service employees pursuant to promotional examina-
10 tions administered in a manner consistent with the requirements of the
11 state civil service law;
12 3. assessments of capacity and potential to perform managerial duties
13 as part of competitive tests for entry into the service and assignments
14 within the service;
15 4. a single managerial class of positions for each occupational series
16 within the service with assignment levels within each such class;
17 5. a plan for achieving equitable pay scales for members of the
18 service consonant with their duties and responsibilities;
19 6. merit increases, incentive awards, and recognition programs for
20 members of the services;
21 7. performance evaluations for members of the service to be used for
22 assignments, incentive awards, probationary period review, and discipli-
23 nary action;
24 8. a probationary period not to exceed one year for members of the
25 service;
26 9. management intern programs; and
27 10. training and career development programs.
28 (c) The personnel director shall conduct city-wide programs and func-
29 tions related to the management service; assist agencies in the imple-
30 mentation of the management service plan; and review and evaluate agency
31 performance under the plan.
32 § 12-07. Appointments and promotions.
33 (a) All appointments, promotions and changes in status of persons in
34 the public service of the city shall be made in the manner prescribed by
35 the constitution of the state and in accordance with the provisions of
36 the state civil service law and other provisions of law not inconsistent
37 therewith nor with this charter.
38 (b) Whenever qualifications for the appointment of persons to public
39 office are prescribed by law, the appointing officer shall, upon making
40 such appointment, file with the civil service commission a certificate
41 that such appointment complies with such law.
42 § 12-08. Power of investigation.
43 The personnel director and the city civil service commission shall
44 have the power to make investigations concerning all matters touching
45 the enforcement and effect of the provisions of the state civil service
46 law insofar as it applies to the city and the rules and regulations
47 prescribed thereunder, or concerning the actions of any examiner or
48 subordinate of the department, or of any officer or employee of the city
49 or of any county within the city, in respect to the execution of the
50 state civil service law; and in the course of such investigations the
51 personnel director of the city civil service commission shall have the
52 power to administer oaths, to compel the attendance of witnesses, and to
53 examine such persons as deemed necessary.
54 § 12-09. No compensation to unauthorized employees.
55 No officer of the city whose duty is to sign or countersign warrants
56 shall draw, sign or issue, or authorize the drawing, signing or issuing
S. 8578 49
1 of any warrant on the commissioner of finance or other disbursing offi-
2 cer of the city for payment of salary to any person in its service whose
3 appointment or retention has not been in accordance with the state civil
4 service law and the valid rules in force thereunder.
5 § 12-10. Examination for licenses.
6 The personnel director shall, unless otherwise provided by law, have
7 power, upon request of any person charged with the duty of issuing
8 licenses or permits, to conduct, under rules and regulations to be
9 established by the personnel director, examinations and tests to deter-
10 mine the qualifications of persons applying for such licenses or
11 permits. The personnel director shall certify to the person having power
12 to issue the license or permit the result of any such examination or
13 test.
14 § 12-11. Officers or employees designated to serve in exempt civil
15 service positions.
16 (a) Notwithstanding any provision in this charter to the contrary, the
17 mayor or head of an agency may designate any officer or employee occupy-
18 ing a position in the competitive class of the civil service to serve in
19 a position in the exempt class, and in such case, the officer or employ-
20 ee so designated shall thereupon enter upon and exercise all the powers
21 and duties and receive the salary of such exempt position, and shall
22 retain all the rights, privileges and status of such officer or employ-
23 ee's position in the competitive class.
24 (b) The appointment of any person chosen to fill the position thus
25 left vacant shall be temporary and shall terminate upon the return of
26 such officer or employee to such position as provided in subdivision (e)
27 of this section.
28 (c) Such designation shall be in writing and shall be filed and remain
29 of record in the office of such agency, in the office of the personnel
30 director and in the office of the mayor and shall remain in force until
31 revoked by the mayor or head of such agency, as the case may be.
32 (d) Service in such position in the exempt class shall be credited as
33 service in the competitive class and the status of such officer or
34 employee in respect to pensions or otherwise shall not be adversely
35 affected by such designation.
36 (e) Upon the termination of the officer or employee's services in such
37 exempt position, except by dismissal for cause in the manner provided in
38 section seventy-five of the state civil service law, such officer or
39 employee shall immediately and without further application return to the
40 position in the competitive class with the status, rights, privileges
41 and salary enjoyed immediately prior to the designation to the position
42 in the exempt class as if service in the competitive position had been
43 continuous.
44 § 12-12. Residency exemption.
45 Any employee who was previously employed by the city of New York, and
46 who is appointed, reassigned or transferred to city employment, without
47 a break in service shall be exempt from any residency requirement in
48 connection with his or her employment or subsequent promotion, demotion,
49 reassignment, transfer or other personnel change. For the purpose of
50 this section, a break in service shall be defined as a period of more
51 than one year.
52 Chapter 13
53 Equal Employment Practices Commission
54 § 13-01. Equal employment practices commission.
55 (a) There shall be an equal employment practices commission which
56 shall review, evaluate and monitor the employment procedures, practices
S. 8578 50
1 and programs of any city agency and the department of personnel to main-
2 tain an effective affirmative employment program of equal employment
3 opportunity for minority group members and women who are employed by or
4 who seek employment with city agencies.
5 (b) The commission shall consist of three members who shall be compen-
6 sated on a per diem basis. The mayor, the council, and the comptroller
7 shall each appoint one member. The mayor shall appoint a member to serve
8 as the chair.
9 (c) Members shall be appointed for four-year terms.
10 (d) The commission may, within the appropriations available therefor,
11 appoint an executive director and such deputies, assistants, and other
12 employees as may be needed for the performance of the duties prescribed
13 herein.
14 (e) The commission may meet as necessary to implement the provisions
15 of this chapter provided that the commission shall meet at least once
16 every eight weeks.
17 § 13-02. Duties and powers of the equal employment practices commis-
18 sion.
19 (a) The commission:
20 1. shall monitor the employment policies, programs and practices of
21 each city agency; and
22 2. monitor the coordination and implementation of any city affirmative
23 employment program of equal employment opportunity for minority group
24 members and women who are employed by or who seek employment with city
25 agencies, including the activities of the department of personnel, and
26 the civil service commission, pursuant to chapter twelve of this char-
27 ter, and any other agency designated by the mayor to assist in the
28 implementation or coordination of such efforts, and all city agencies
29 required by section 12-05 of this charter to establish agency program.
30 (b) The commission may request and shall receive from any city agency
31 such information, other than information which is required by law to be
32 kept confidential or which is privileged as attorney client communi-
33 cations, attorney work products or material prepared for litigation, and
34 such assistance as may be necessary to carry out the provisions of this
35 chapter.
36 (c) The commission shall communicate to any appropriate authority any
37 information regarding suspected or alleged violations of this chapter.
38 (d) The commission shall have the following powers and duties:
39 1. to review the uniform standards, procedures, and programs of the
40 department of personnel pursuant to section 12-04 of this charter, and
41 to review the plans adopted by city agencies in accordance with the
42 provisions of section 12-05 of this charter, and to provide any such
43 agency or the department of personnel with such comments and suggestions
44 as the commission deems necessary and appropriate;
45 2. to recommend to the department of personnel, all city agencies, or
46 any one or more particular agencies, procedures, approaches, measures,
47 standards and programs to be utilized by such agencies in their efforts
48 to ensure a fair and effective affirmative employment program of equal
49 employment opportunity for minority group members and women who are
50 employed by or seek employment with city agencies;
51 3. to recommend to any city agency actions which such agency should
52 consider including in its next annual plan as required by section 12-05
53 of this charter;
54 4. to advise and, if requested, assist city agencies in their efforts
55 to increase employment of minority group members and women who are
56 employed by or who seek employment with city agencies;
S. 8578 51
1 5. to audit and evaluate the employment practices and procedures of
2 each city agency and their efforts to ensure fair and effective equal
3 employment opportunity for minority group members and women at least
4 once every four years and whenever requested by the civil service
5 commission or the human rights commission or whenever otherwise deemed
6 necessary by this commission;
7 6. to make such policy, legislative and budgetary recommendations to
8 the mayor, council, the department of personnel or any city agency as
9 the commission deems necessary to ensure equal employment opportunity
10 for minority group members and women;
11 7. to publish by the fifteenth of February of each year a report to
12 the mayor and the council on the activities of the commission and the
13 effectiveness of each city agency's affirmative employment efforts and
14 the efforts by the department of personnel to ensure equal employment
15 opportunity for minority group members and women who are employed by or
16 seek to be employed by city agencies;
17 8. to establish appropriate advisory committees;
18 9. to serve with such other agencies or officials as shall be desig-
19 nated by the mayor as the city liaison to federal, state and local agen-
20 cies responsible for compliance with equal employment opportunity for
21 minority group members and women who are employed by or who seek to be
22 employed by city agencies; and
23 10. to take such other actions as are appropriate to effectuate the
24 provisions and purposes of this chapter.
25 § 13-03. Compliance procedures.
26 (a) The commission shall conduct such study or investigations and hold
27 such hearings as may be necessary to determine whether agencies are in
28 compliance with the equal employment opportunity requirements of this
29 chapter and chapter twelve of this charter.
30 (b) For the purpose of ascertaining facts in connection with any study
31 or investigation authorized by this chapter, the commission shall have
32 power to compel the attendance of witnesses, to administer oaths and to
33 examine such persons as they may deem necessary. The commission or any
34 agent or employee thereof duly designated in writing by them for such
35 purposes may administer oaths or affirmations, examine witnesses in
36 public or private hearing, receive evidence and preside at or conduct
37 any such study or investigation.
38 (c) If the commission makes a preliminary determination pursuant to
39 section 13-02 of this chapter, that any plan, program, procedure,
40 approach, measures or standard adopted or utilized by any city agency or
41 the department of personnel does not provide equal employment opportu-
42 nity; and/or if the commission makes a preliminary determination pursu-
43 ant to this chapter and chapter twelve of this charter, that an agency
44 has not provided equal employment opportunity the commission shall noti-
45 fy the agency in writing of this determination and provide an opportu-
46 nity for the agency to respond. If the commission, after consideration
47 of any such response and after consulting with the agency, concludes
48 that the corrective actions, if any, taken or planned by the agency are
49 not sufficient to correct the non-compliance identified in the prelimi-
50 nary determination, it should make a final determination in writing,
51 including such recommended corrective action as the commission may deem
52 appropriate. The agency shall within thirty days thereafter respond to
53 the commission on any corrective action it intends to make and shall
54 make monthly reports to such commission on the progress of such correc-
55 tive action. If the commission, after a period not to exceed six months,
56 determines that the agency has not taken appropriate and effective
S. 8578 52
1 corrective action, the commission shall notify the agency in writing of
2 this determination and the commission may thereafter publish a report
3 and recommend to the mayor whatever appropriate corrective action the
4 commission deems necessary to ensure compliance with equal employment
5 opportunity pursuant to the requirements of this chapter and chapter
6 twelve of this charter. Within thirty days of such determination the
7 agency shall submit a written response to the commission and the mayor.
8 The mayor after reviewing the commission's findings and the agency's
9 response, if any, shall order and publish such action as he or she deems
10 appropriate.
11 Chapter 14
12 Collective Bargaining
13 § 14-01. Office of collective bargaining; director.
14 There shall be an office of collective bargaining, the head of which
15 shall be the director of such office, who shall be the person holding
16 the office of chairman of the board of collective bargaining. The
17 director may appoint, and at pleasure remove, two deputies.
18 § 14-02. Board of collective bargaining.
19 There shall be in the office of collective bargaining a board of
20 collective bargaining, which shall consist of five members. Two members
21 of the board shall be city members, two members of the board shall be
22 labor members, and one impartial member who shall be the chair. The
23 mayor shall have the power to appoint the city members of the board to
24 serve at the mayor's pleasure, and the labor members of the board from
25 designations by the municipal labor committee. Each labor and city
26 member shall have an alternate, who shall be appointed and removed in
27 the same manner as the member for whom he or she is the alternate. The
28 chair shall be elected by the unanimous vote of the city and labor
29 members, and shall serve for three year terms.
30 Notwithstanding any other provision of law, a labor member may not be
31 removed from the board except upon request of the municipal labor
32 committee, or except for cause, as hereinafter provided. Any member may
33 be removed for cause by a majority of the entire board, including at
34 least one city member and one labor member, after having been given a
35 copy of the charges against him and an opportunity to be heard in person
36 or by counsel in his or her defense upon not less than ten days notice.
37 Vacancies in the office of a city member or a labor member shall be
38 filled in the same manner as herein provided for appointment. Vacancies
39 in the office of an impartial member occurring otherwise than by expira-
40 tion of term shall be filled by unanimous vote of the city and labor
41 members for the unexpired balance of the term.
42 § 14-03. Bureau of certification.
43 There shall be in the office of collective bargaining a bureau of
44 certification, which shall be administered by the impartial member of
45 the board of collective bargaining.
46 § 14-04. Powers and duties.
47 The office of collective bargaining, the board of collective bargain-
48 ing and the bureau of certification shall have such powers and duties
49 with respect to labor relations and collective bargaining as shall be
50 prescribed by law and which shall be substantially equivalent to chapter
51 3 of title 12 of the New York city administrative code as it existed on
52 the date this charter was submitted pursuant to subdivision c of section
53 4 of chapter 773 of the laws of 1989 and shall also provide for a Staten
54 Island municipal labor committee.
55 § 14-05. Compensation.
S. 8578 53
1 (a) Board of collective bargaining; bureau of certification director.
2 The city members and the labor members of the board of collective
3 bargaining and their alternates shall serve without compensation. The
4 director shall be salaried for his or her services as director, chair of
5 the board of collective bargaining, and administrator of the bureau
6 certification. The director and all members of both such boards and
7 their alternates shall be entitled to receive a per diem fee and
8 reimbursement for their actual and necessary expenses incurred in the
9 performance of their duties. Fifty percent of the salary, fees, and
10 expenses provided for in this subdivision shall be paid by the members
11 of the municipal labor committee, under rules and regulations issued by
12 the board of collective bargaining, which rules may provide how such
13 costs shall be distributed among such members.
14 (b) Members of mediation and impasse panels; arbitrators. Members of
15 mediation and impasse panels, and arbitrators, shall be paid a per diem
16 fee to be determined by the board of collective bargaining, unless the
17 parties to the particular dispute shall have agreed to a different fee,
18 and shall be reimbursed for their actual and necessary expenses incurred
19 in the performance of their duties. The public employer and public
20 employee organization which are parties to the particular negotiation or
21 grievance shall each pay fifty percent of such fees and expenses and
22 related expenses incidental to the handling of deadlocked negotiations
23 and unresolved grievances.
24 (c) Appointment of counsel and attorneys. The director may appoint a
25 counsel and attorneys, who, at the direction of the bureau of certif-
26 ication or the board of collective bargaining may appear for and repre-
27 sent the office of collective bargaining or either of the aforesaid
28 boards in any legal proceeding.
29 § 14-06. Publication of collective bargaining agreements.
30 Not later than sixty calendar days after the execution of a collective
31 bargaining agreement, a copy shall be published in a newspaper of gener-
32 al circulation in the city together with a statement by the mayor:
33 (a) of the total costs and current and future budgetary and economic
34 consequences of the agreement, and
35 (b) of the implications and likely impact of the agreement on the
36 efficient management of city agencies and the productivity of city
37 employees.
38 § 14-07. Budgeting for agreements.
39 (a) So far as practicable, each collective bargaining agreement cover-
40 ing city employees shall be executed prior to the commencement of the
41 fiscal year during which its provisions shall first be in effect.
42 (b) No part of any retroactive wage or salary settlement shall be
43 charged to the capital budget.
44 Chapter 15
45 Transitory Provisions
46 § 15-01. Rights of officers and employees of the city of New York
47 preserved.
48 (a) Nothing in this charter contained shall affect or impair the
49 rights or privileges of officers or employees of the city of New York
50 who are transferred, reassigned, appointed or otherwise employed by the
51 city in relation to the personnel, appointment, salaries, ranks, grades,
52 tenure of office, promotion, removal, pension and retirement rights,
53 civil rights or any other rights or privileges of officers or employees
54 of the city generally or officers or employees of any agency.
55 (b) There shall be no layoffs of officers or employees of the city of
56 New York classified municipal civil service as a result of transfer of
S. 8578 54
1 functions or work currently being performed by employees or officers of
2 the city of New York to the city of Staten Island. The city shall guar-
3 antee the continued employment of all officers and employees of the city
4 of New York who are performing duties and functions related to any
5 municipal governmental operation affecting the city of Staten Island at
6 the time this charter takes effect.
7 § 15-02. Transfer of officers and employees in case of transfer of
8 functions.
9 Wherever by any provision of this charter functions, powers or duties
10 are assigned to any agency which have been heretofore exercised by the
11 city of New York, its agencies, boards, corporations or other related
12 entities, all officers and employees in the classified municipal civil
13 service who at the time when such charter provisions shall take effect
14 are engaged in the performance of such functions, powers or duties shall
15 be transferred to the agency to which such functions, powers or duties
16 are assigned by this charter, without examination and without affecting
17 existing compensation or pension or retirement rights, privileges or
18 obligations of such officers and employees. Furthermore, any employee to
19 be transferred to the city pursuant to this charter shall be given the
20 option to remain in the employ of the city of New York without diminu-
21 tion of rights, privileges, salary and benefits. Any employee not
22 included in such transfer shall be able to protest the decision pursuant
23 to the procedures set forth in section seventy of the civil service law.
24 § 15-03. Continuity of employee representation.
25 Employees transferred from the city of New York to the city except for
26 those designated managerial or confidential shall be included in employ-
27 er - employee negotiating units comparable to existing units in the city
28 of New York. With respect to employees to be placed in such negotiating
29 units, the public employee organization recognized or certified to
30 represent the employees in comparable city of New York negotiating units
31 shall be recognized as the city unit representative.
32 § 15-04. Continuity of collectively bargained benefits.
33 All rights, privileges and benefits provided by collectively bargained
34 agreements to city of New York employees shall be continued for such
35 employees transferred, reappointed or otherwise employed by the city
36 until such time as successor collective bargaining agreements are nego-
37 tiated.
38 § 15-05. Future alterations of the negotiating units.
39 Future alterations of the city negotiating units shall be made pursu-
40 ant to article fourteen of the state civil service law and office of
41 collective bargaining implementing legislation.
42 § 15-06. Establishment of new titles.
43 (a) The city shall consult and bargain on all terms and conditions of
44 employment with the appropriate public employee organization with
45 respect to the establishment of any new titles which are similar to or
46 reasonably related to titles already represented by such public employee
47 organizations in the city or in the city of New York.
48 (b) Any such titles for which terms and conditions are bargained
49 pursuant to subdivision (a) of this section shall be deemed to be
50 successor titles within the meaning of applicable law. So long as the
51 responsibilities of employees in these titles are reasonably related to
52 the responsibilities of employees currently represented by public
53 employee organizations, such titles shall be accredited or placed in a
54 negotiating unit represented by such public employee organizations.
55 § 15-07. Dispute resolution.
S. 8578 55
1 If a dispute arises, the office of collective bargaining shall deter-
2 mine which public employee organization is appropriate to represent
3 transferees, other hires, or employees in a new title on the basis of
4 the title's community of interest with titles in the city and the city
5 of New York.
6 § 15-08. Existing rights and remedies preserved.
7 No existing right or remedy of any character shall be lost or impaired
8 or affected by reason of the adoption of this charter.
9 Chapter 16
10 Labor Relations
11 § 16-01. Department; commissioner.
12 (a) There is established a department of labor relations, the head of
13 which shall be the commissioner of labor relations.
14 (b) The commissioner of labor relations is hereby authorized to repre-
15 sent the mayor in the conduct of all relations between the city and
16 labor unions, associations, or other organizations representing employ-
17 ees of the city. The commissioner of labor relations shall be responsi-
18 ble for the conduct of all relations and she or he shall establish broad
19 city wide policy governing them.
20 (c) The appropriate city staff agencies shall render advice to the
21 commissioner of labor relations on questions of law, finance, personnel
22 policy, operations and management.
23 § 16-02. Powers and duties.
24 (a) The commissioner of labor relations is authorized to negotiate
25 labor agreements with the unions certified as representing the various
26 groups of city employees, and to prepare and sign labor agreements on
27 behalf of the mayor.
28 (b) The heads of all city departments and agencies and the staff of
29 the office of the mayor shall cooperate fully with the commissioner of
30 labor relations in carrying out his or her responsibilities. This coop-
31 eration shall include, but not be limited to the following:
32 1. notice and transmittal to the commissioner of labor relations of
33 all inquiries and requests from labor unions, associations or other
34 organizations representing employees of the city soliciting interpreta-
35 tion of any agreement;
36 2. actions by city departments or agencies based upon interpretations
37 of collective bargaining agreement shall not be taken without prior
38 consultation with the commissioner of labor relations;
39 3. agreements, contracts or understandings, verbal or written, shall
40 be consummated between the head of any city department or agency or one
41 of his or her subordinates, and a union or organization representing
42 employees of that agency, only after prior consultation and review by
43 the commissioner of labor relations;
44 4. grievance and dispute settlement procedures such as arbitration,
45 mediation, fact-finding and labor-management conference discussions
46 relating to city employee labor disputes or grievances, either advisory
47 or binding, shall be entered into by city departments or agencies only
48 after prior consultation and review of the commissioner of labor
49 relations. Such settlement procedures shall be processed through and
50 handled by the department of labor relations;
51 5. city departments and agencies shall not unilaterally change, in a
52 substantial way, the working conditions of their employees without prior
53 consultation with the commissioner of labor relations;
54 6. city departments and agencies shall not take disciplinary action
55 against any employee or group of employees involved in a labor relations
S. 8578 56
1 dispute without prior consultation with the commissioner of labor
2 relations;
3 7. city departments and agencies shall provide the commissioner of
4 labor relations with all necessary information needed in the conduct of
5 labor negotiations affecting employees in their departments and shall
6 participate with the commissioner of labor relations in the negotiations
7 as, in the opinion of the commissioner of labor relations, may be neces-
8 sary from time to time;
9 8. heads of city departments and agencies and the staff of the office
10 of the mayor shall give notice to the commissioner of labor relations of
11 all meetings held with labor unions, associations, or other organiza-
12 tions representing city employees;
13 9. heads of city departments and agencies and the staff of the mayor
14 shall consult with the commissioner of labor relations prior to the
15 issuance of any public or press statement relating to labor relations
16 with city employees;
17 10. the labor relations officer of each city department and agency
18 shall act as liaison with the department of labor relations and shall
19 keep that department informed of employee relations problems in his or
20 her department or agency. In particular, he or she shall immediately
21 notify the department of labor relations of any threatened or actual
22 strike, work stoppage, job action, mass resignation or picketing by
23 employees of his or her department or agency.
24 § 3-001. Legislative findings and declaration of purposes.
25 The legislature hereby finds and declares that it is essential that a
26 municipal corporation of the city of Staten Island be authorized to
27 represent the interests of the city of Staten Island during the transi-
28 tion period prior to the date of establishment of the city, provide
29 preparation for the operations of the city and provide financing for
30 such transition period and initial funding for the city.
31 § 3-002. Elections.
32 1. The board of elections of the city of New York shall provide for
33 the election of a mayor, a city comptroller and a common council, as
34 provided for in chapter 773 of the laws of 1989, as amended, for a poli-
35 tical subdivision of the state to be known as the city of Staten Island,
36 at the general election to be held in November next succeeding the date
37 on which this section shall have become a law in the county of Richmond.
38 Such expenses for such election will be reimbursed by the state from
39 those moneys to be allocated as general state aid to a city of Staten
40 Island. Chapter 7 of title 3 of the administrative code of the city of
41 New York, known as the "New York City Campaign Finance Act", shall not
42 apply to such elections.
43 2. The Mayor elect and common council elect of the city of Staten
44 Island, upon the constitutional oath of office, are hereby authorized to
45 represent the interests of the city of Staten Island, and as govern-
46 mental officers of the city of Staten Island are authorized to enter
47 into negotiations as provided under this act and enter into such
48 purchase or employment contracts as would be authorized for such city
49 subsequent to the date of establishment. Any such contracts or agree-
50 ments from such negotiations shall be binding upon the city of Staten
51 Island.
52 3. The mayor elect, the comptroller elect and the common council elect
53 shall take the oath of office on the first of January next succeeding
54 the date on which this act shall have become a law, at which time the
55 city shall be incorporated. The mayor, city comptroller and common coun-
56 cil shall establish accounts according to the provisions of the charter
S. 8578 57
1 of the city of Staten Island and appoint such other city officers as may
2 be necessary in accordance with the provisions of the city charter.
3 § 3-003. Staten Island city government-transition.
4 1. Short title. This section may be cited as the "Staten Island City
5 Government-Transition Act".
6 2. Definitions. For the purposes of this section:
7 (a) "City" means the city of Staten Island.
8 (b) "Director of management and budget" means the director of manage-
9 ment and budget of the city of Staten Island.
10 (c) "Corporation" means the municipal corporation as created by this
11 section.
12 (d) "Mayor" means the mayor of the city of Staten Island.
13 (e) "Comptroller" means the comptroller of the city of Staten Island.
14 (f) "State" means the state of New York.
15 (g) "Bonds" and "notes" means revenue bonds and notes respectively,
16 issued by the corporation pursuant to this section.
17 (h) "Revenues" means all aid, rents, fees, charges, payments and other
18 income and receipts paid or payable to the municipal corporation for the
19 account of the city of Staten Island, including any payment required to
20 be made to the corporation by this section.
21 (i) "Operating expenses" means all expenses incurred by the government
22 in the administration of the municipal corporation including but not
23 limited to salaries, administrative expenses, insurance premiums, audit-
24 ing and legal expenses and fees and expenses incurred for professional
25 consultants and fiduciaries.
26 (j) "Capital reserve fund requirement" means as of any particular date
27 of computation, an amount of money equal to the amount required, for the
28 then current fiscal year of the municipal corporation, to pay interest
29 during such fiscal year on all bonds of the corporation outstanding on
30 said date of computation, the principal amount of all bonds of the
31 corporation outstanding on said date of computation which matures during
32 such fiscal year and the amount of sinking fund payments payable during
33 such fiscal year with respect to any bonds of the corporation outstand-
34 ing on said date of computation.
35 (k) "Sinking fund payment" means the amount of money specified in the
36 resolution authorizing bonds as payable into a sinking fund during a
37 particular fiscal year for the retirement of term bonds which mature
38 after such fiscal year, but shall not include any amount payable by
39 reason only of the maturity of the bond.
40 3. General powers as a municipal corporation. The city shall have the
41 following powers in addition to those specially conferred elsewhere in
42 this act: (a) to sue and be sued; (b) to have a seal and alter the same
43 at pleasure; (c) to make and alter by-laws for its organization and
44 internal management and, subject to agreements with noteholders or bond-
45 holders, to make rules and regulations governing the use of its property
46 and facilities; (d) to make and execute contracts, leases, subleases and
47 all other instruments or agreements necessary or convenient for the
48 exercise of its powers and functions under this section; (e) to purchase
49 real or personal property necessary and convenient for its municipal
50 purposes; to execute and deliver deeds for real property held in its own
51 name; and to sell or otherwise to dispose of such real or personal prop-
52 erty that, in the judgment of the city, is no longer necessary for its
53 municipal purposes; (f) to appoint officers, agents and employees,
54 prescribe their duties and qualifications and fix their compensation;
55 (g) to commence any action to protect or enforce any right conferred
56 upon it by any law, contract or other agreement; (h) to borrow money and
S. 8578 58
1 to issue negotiable notes or bonds or other obligations and to fund or
2 refund the same, and to provide for the rights of the holders of its
3 obligations; (i) subject to the provisions of any contract with note-
4 holders or bondholders, to invest any funds held in reserves or sinking
5 funds, or any funds not required for immediate use or disbursement, at
6 the discretion of the city, in obligations of the state or federal
7 government, obligations the principal of and interest on which are guar-
8 anteed by the state or federal government, or obligations of agencies of
9 the federal government which may, from time to time, be legally
10 purchased by savings banks of the state as investments of funds belong-
11 ing to them or in their control and which have been approved by the
12 state comptroller or in secured time deposits or other interest bearing
13 accounts secured by such obligations; (j) subject to the provisions of
14 any contract with noteholders or bondholders, to purchase notes or bonds
15 of the city; (k) to procure insurance against any loss in such amounts
16 and from such insurers as it deems desirable; (l) to engage the services
17 of consultants on a contract basis for rendering professional and tech-
18 nical assistance and advice; (m) to contract for and to accept any gifts
19 or grants or loans of funds or property or financial or other aid in any
20 form from the federal government or any agency or instrumentality there-
21 of, or from any other source and to comply with the terms and conditions
22 thereof; (n) as security for the payment of the principal of and inter-
23 est on any bonds so issued and any agreements made in connection there-
24 with, to pledge all or any part of its revenues; (o) to enact such local
25 laws to take effect on the date of establishment as shall be necessary
26 to provide for effective transition of government; and (p) to do any and
27 all things necessary or convenient to carry out its purposes and exer-
28 cise the powers expressly given and granted in this act.
29 4. Notes and bonds of the city. The city shall have power and is here-
30 by authorized from time to time to issue its negotiable notes and bonds
31 in conformity with applicable provisions of the uniform commercial code,
32 the local finance law and the state finance law.
33 § 3-004. Employees of the city of Staten Island.
34 1. Notwithstanding any inconsistent provisions of this act, the
35 appointment and promotion of all employees of and for the city shall be
36 made in accordance with the provisions of the state civil service law
37 and shall be subject to the jurisdiction of the state civil service
38 commission and the compensation for such employees shall be fixed by the
39 city.
40 2. Any municipality and the city shall have the power to agree to
41 provide for the transfer to the city of agents, employees and facilities
42 of such municipality to enable the city to fulfill its municipal
43 purposes. Employees of such municipality to be transferred to the city
44 pursuant to this act shall be automatically appointed and transferred to
45 the city in the same or equivalent classification and position they hold
46 at the time of the transfer. The city, its officers and employees,
47 shall be subject to article fourteen of the state civil service law and
48 for all purposes the city shall remain and be deemed "public employer".
49 Employees who are members or beneficiaries of any existing pension or
50 retirement system shall continue to have such rights, privileges, obli-
51 gations or status with respect to such system as are prescribed by law
52 on the date this act takes effect, and all such employees who have been
53 appointed to positions in municipal service in accordance with the
54 provisions of the state civil service law under the rules of the city
55 civil service commission shall have the same status with respect thereto
56 in the service of the city as they had in prior municipal service.
S. 8578 59
1 3. Transfer rights. Notwithstanding any other provision of law, there
2 shall be no layoffs of officers or employees of the preceding munici-
3 pality, its agencies, authorities, boards, corporations or other related
4 entities as a result of the transfer of functions or work currently
5 performed by these officers and employees to the city of Staten Island.
6 All such employees who have been assigned to work on Staten Island or
7 who have been substantially engaged in the performance of a function to
8 be transferred to the city of Staten Island shall be transferred to
9 positions in employment by the city of Staten Island upon the establish-
10 ment of the city of Staten Island and shall retain all rights, privi-
11 leges, benefits and salaries to which any such employee was previously
12 entitled as an employee of the preceding municipality. Notice that an
13 employee is subject to transfer shall be given to an employee no less
14 than twenty days prior to the effective date of transfer. Any employee
15 so notified may opt to remain in his or her employment by the preceding
16 municipality rather than be transferred by so informing his or her
17 employer ten days prior to the transfer date. Such employee shall be
18 retained in employment by the preceding municipality and retain all
19 rights, privileges, benefits and salaries to which the employee was
20 entitled prior to the establishment of the city of Staten Island.
21 4. Transfer mechanism. The mechanism for the transfer of the employees
22 to the city of Staten Island shall be the subject of negotiations among
23 the preceding municipality, the city of Staten Island and the appropri-
24 ate public employee organizations. The parties shall negotiate an
25 appeals process for employees aggrieved by their exclusion from the
26 transfer. If the parties are unable to reach agreement as to transfer
27 issues, the parties shall submit such issues to mediation and, if neces-
28 sary, impasse panels to be appointed in accordance with the collective
29 bargaining provisions of the administrative code of the preceding muni-
30 cipality. Transferees represented by the public employee organizations
31 shall be entitled to all rights and benefits which they were entitled to
32 prior to transfer including, but not limited to, seniority and accrued
33 annual and sick leave time.
34 5. Vacancies. Any employee of the preceding municipality not subject
35 to the transfer set forth in subdivision three of this section shall be
36 eligible to transfer to a vacant position in a title in the city of
37 Staten Island requiring the same, similar or related duties to duties
38 actually performed in the preceding municipality title by submitting
39 written notice of intent to transfer to the city of Staten Island direc-
40 tor of personnel within six months of the establishment of the city of
41 Staten Island. The preceding municipality shall inform in writing
42 employees who are residents of Staten Island of their right to apply for
43 transfer. Immediately upon receipt of any notice to transfer, the direc-
44 tor of personnel shall establish for each city of Staten Island title
45 two lists of eligible employees who give timely notice in order of the
46 employees' preceding municipality seniority in the title requiring the
47 same, similar or related duties. The first list shall include the names
48 of transfer applicants who are domiciled in the city of Staten Island on
49 the date of the submission of the notice. The second list shall include
50 the names of transfer applicants not domiciled in the city of Staten
51 Island. Appointments to any vacant positions in these titles shall be
52 made from the Staten Island domicile list and, when that list is
53 exhausted, from the second list until such lists are exhausted or until
54 a period of four years from the date of the establishment of the indi-
55 vidual list has expired.
S. 8578 60
1 6. Residency exemption. Any employee of the preceding municipality
2 appointed, reassigned or transferred to city of Staten Island employment
3 without a break in service shall be exempt from any residency require-
4 ment in connection with his or her employment or subsequent promotion,
5 demotion, reassignment, transfer or other personnel change. For the
6 purpose of this section, a break in service shall be defined as a period
7 of more than one year. Notwithstanding any other provision of law, any
8 Staten Island resident employed by the preceding municipality or on
9 leave of absence from such employment on the date of the establishment
10 of the city of Staten Island shall be exempt from any residency require-
11 ment in connection with his or her preceding municipality employment or
12 subsequent preceding municipality promotion, demotion, reassignment,
13 transfer or other personnel change.
14 7. Retirement. The city of Staten Island shall participate in the
15 State's retirement systems.
16 (a) On and after the date of the establishment of the city of Staten
17 Island, employees of the preceding municipality who are transferred to
18 employment in the city of Staten Island shall thereupon become members
19 of the appropriate state retirement system to the extent permitted or
20 required by the provisions of the retirement and social security law,
21 the education law or local law, as appropriate, and the employees'
22 reserves in any other retirement system shall be transferred to the
23 appropriate New York state retirement system without request by them or
24 notice to the retirement systems, except that any such employee who is a
25 member of one of the retirement systems of the preceding municipality
26 may elect to continue membership in such system. Any election pursuant
27 to this subdivision shall be made no later than the one hundred twenti-
28 eth day succeeding the date on which the provisions of this section
29 become effective, by filing a written notice thereof with the adminis-
30 trative head of the appropriate New York state, preceding municipality
31 and city of Staten Island retirement systems, as appropriate, and once
32 made and filed, shall be irrevocable. Upon the retirement of an employee
33 who has made such an election, the calculation of final average salary
34 by the retirement system of the preceding municipality shall be
35 performed as if the salary earned as a city of Staten Island employee on
36 and after the effective date of this section was earned in employment of
37 the preceding municipality. In the case of an employee who remains or
38 becomes a member of a New York state employees' retirement system pursu-
39 ant to this subdivision, the retirement system of the preceding munici-
40 pality shall make a transfer of reserves, contributions and credits to
41 such New York state employees' retirement system, in the manner required
42 by section 43 of the retirement and social security law.
43 (b) The comptroller of the preceding municipality shall certify to the
44 comptroller of the city of Staten Island and the state comptroller or
45 other chief officer of a state pension system the amount of money
46 required to be paid by the city of Staten Island for pension costs
47 resulting from elections made pursuant to paragraph (a) of this subdivi-
48 sion and the comptroller of the city of Staten Island shall pay to the
49 retirement system of the preceding municipality upon approval by the
50 state comptroller or other chief officer of a state pension system, the
51 amounts so certified by the comptroller of the preceding municipality.
52 The comptroller of the preceding municipality shall also certify to the
53 comptroller of the city of Staten Island and the state comptroller or
54 other chief officer of a state pension system the amount of money
55 required to be contributed by such employees. The comptroller of the
56 city of Staten Island shall be authorized to provide for the withholding
S. 8578 61
1 or withhold the contribution of such employees and the payment of that
2 amount to the retirement system of the preceding municipality. The
3 amount so certified pursuant to this paragraph shall be the same as the
4 amounts required to be contributed for similarly situated city employees
5 by the preceding municipality and by employees of the preceding munici-
6 pality.
7 8. Health insurance coverage. Health insurance coverage for city of
8 Staten Island employees, persons retired from city of Staten Island
9 employment and dependents of such employees and retirees shall be
10 provided in accordance with the personnel and labor, health insurance
11 coverage for municipal employees, persons retired from municipal employ-
12 ment and dependents of such employees and retirees provisions of the
13 administrative code of the preceding municipality unless the duly recog-
14 nized public employee representative negotiates altered terms.
15 9. Quasi-public entities. Rights and benefits of employees currently
16 employed by public authorities, boards, corporations and other quasi-
17 public entities of the preceding municipality shall be preserved upon
18 any transfer of functions resulting from the establishment of the city
19 of Staten Island.
20 § 3-005. Assistance to the city of Staten Island.
21 With the consent of any municipality, the city of Staten Island may
22 use agents, employees and facilities of such municipality, paying to the
23 municipality its agreed proportion of the compensation or costs.
24 § 3-006. Provision of municipal services in the city of Staten Island.
25 During the transition period the mayor and comptroller of the city of
26 Staten Island and the mayor and comptroller of the preceding munici-
27 pality are authorized to enter into agreements as to the provision of
28 municipal services by the preceding municipality to the city of Staten
29 Island to be provided on or after the date of establishment of the city
30 of Staten Island and the terms and conditions thereof.
31 § 3-007. Debt, property, obligations and other allocations.
32 1. (a) Proportion of debt to be assumed by the city of Staten Island.
33 The proportion of the debt of the preceding municipality which shall be
34 assumed by the city of Staten Island, as constituted by this act, shall
35 be determined in the following manner: The mayor and the comptroller of
36 the city of Staten Island, as representing the city of Staten Island and
37 the mayor and the comptroller of the preceding municipality, are hereby
38 authorized and empowered to agree if they can, as to the amount of the
39 debt of the preceding municipality, which should equitably and properly
40 be assumed by the city of Staten Island. If the mayor and the comp-
41 troller of the city of Staten Island and the mayor and the comptroller
42 of the preceding municipality shall be unable to agree within six months
43 after this section takes effect as to the proportion of said debt of the
44 preceding municipality to be assumed by the city of Staten Island, the
45 supreme court of the third judicial district shall have power to deter-
46 mine the proportion of said debt of the preceding municipality to be
47 assumed by the city of Staten Island, and to enforce such award, deci-
48 sion and determination as shall be made in an action to be brought by
49 and in the name of either of said parties not less than six months nor
50 more than one year after this section takes effect. Nothing herein
51 contained shall impair the obligation of any contract; and the property
52 and inhabitants of such part of the preceding municipality as is by this
53 act included within the city of Staten Island, shall continue liable to
54 the existing creditors of the said preceding municipality, in like
55 manner, as if this act had not been passed. But from and after the
56 taking effect of this section, the preceding municipality shall have no
S. 8578 62
1 power to issue any bond, obligation or other evidence of indebtedness
2 which shall bind or render liable the property or inhabitants of any
3 part of said municipality included within the city of Staten Island as
4 hereby constituted. The apportionment of the debt of the preceding muni-
5 cipality shall be determined according to the relative assessed valu-
6 ation of the real property included in, or remaining without the city of
7 Staten Island.
8 (b) Proportion of obligations other than debt to be assumed by the
9 city of Staten Island. The proportion of the obligations other than debt
10 of the preceding municipality which shall be assumed by the city of
11 Staten Island, as constituted by this act, shall be determined in the
12 following manner: The mayor and the comptroller of the city of Staten
13 Island, as representing the city of Staten Island and the mayor and the
14 comptroller of the preceding municipality, are hereby authorized and
15 empowered to agree if they can, as to the amount of the obligations
16 other than debt of the preceding municipality, which should equitably
17 and properly be assumed by the city of Staten Island. If the mayor and
18 the comptroller of the city of Staten Island and the mayor and the comp-
19 troller of the preceding municipality shall be unable to agree within
20 six months after this section takes effect as to the proportion of said
21 obligations other than debt of the preceding municipality to be assumed
22 by the city of Staten Island, the supreme court of the third judicial
23 district shall have power to determine the proportion of said obli-
24 gations other than debt of the preceding municipality to be assumed by
25 the city of Staten Island, and to enforce such award, decision and
26 determination as shall be made in an action to be brought by and in the
27 name of either of said parties not less than six months nor more than
28 one year after this section takes effect. Nothing herein contained shall
29 impair the obligation of any contract; and the property and inhabitants
30 of such part of the preceding municipality as is by this act included
31 within the city of Staten Island, shall continue liable to the existing
32 obligees of the said preceding municipality, in like manner, as if this
33 act had not been passed. But from and after the taking effect of this
34 section, the preceding municipality shall have no power to bind or
35 render liable the property or inhabitants of any part of said munici-
36 pality included within the city of Staten Island as hereby constituted.
37 (c) Disposition of real and personal property owned by or held in
38 trust for the preceding municipality. All the real property owned by the
39 preceding municipality and situated in that part of said municipality
40 included within the city of Staten Island, as constituted by this act,
41 is hereby vested in the said city of Staten Island and divested out of
42 the preceding municipality, and all of the real property owned by the
43 preceding municipality and situated elsewhere in said municipality is
44 hereby vested in the preceding municipality and divested out of the said
45 city of Staten Island. All of the property owned by the preceding muni-
46 cipality other than real property, including money, investments, securi-
47 ties on investments and money held in trust for the benefit of said
48 municipality, directly or indirectly, shall be divided between the
49 preceding municipality and the city of Staten Island, as constituted by
50 this act, and the proportion of the same to which each shall, in equity
51 and good conscience, be entitled to receive upon such division, shall be
52 ascertained and determined by agreement by and between the mayor and
53 comptroller of the preceding municipality, upon the one side, and the
54 mayor and the comptroller of the said city of Staten Island, upon the
55 other side, and in the case of their inability to agree upon such divi-
56 sion within six months after this section shall take effect, the supreme
S. 8578 63
1 court in the third judicial district is hereby empowered to divide the
2 same between them and to ascertain and award to each its equitable
3 proportion thereof, and to enforce its determination thereon, and either
4 of the said municipalities may institute and prosecute, in its own name,
5 an action in said court for that purpose after the expiration of six
6 months and before the expiration of one year after this section takes
7 effect.
8 (d) Documents. The preceding municipality shall provide the city of
9 Staten Island with all books, papers, documents and files held by such
10 municipality which apply primarily to the area of the city of Staten
11 Island and shall make available for copying by the city of Staten Island
12 any other books, papers, documents and files which such city shall
13 request as pertaining to such city in any other manner.
14 2. (a) Proportion of debt to be assumed by the city school district of
15 the city of Staten Island. The proportion of the debt of the city school
16 district of the preceding municipality which shall be assumed by the
17 city school district of the city of Staten Island, as constituted by
18 this act, shall be determined in the following manner: The board of
19 education of the city school district of the city of Staten Island and
20 the board of education of the city school district of the preceding
21 municipality, are hereby authorized and empowered to agree if they can,
22 as to the amount of the debt of the city school district of the preced-
23 ing municipality, which should equitably and properly be assumed by the
24 city school district of the city of Staten Island. If the board of
25 education of the city school district of the city of Staten Island and
26 the board of education of the city school district of the preceding
27 municipality shall be unable to agree within six months after this
28 section takes effect as to the proportion of said debt of the city
29 school district of the preceding municipality to be assumed by the city
30 school district of the city of Staten Island, the supreme court of the
31 third judicial district shall have power to determine the proportion of
32 said debt of the city school district of the preceding municipality to
33 be assumed by the city school district of the city of Staten Island, and
34 to enforce such award, decision and determination as shall be made in an
35 action to be brought by and in the name of either of said parties not
36 less than six months nor more than one year after this section takes
37 effect. Nothing herein contained shall impair the obligation of any
38 contract; and the property and inhabitants of such part of the city
39 school district of the preceding municipality as is by this act included
40 within the city school district of the city of Staten Island, shall
41 continue liable to the existing creditors of the city school district of
42 the said preceding municipality, in like manner, as if this act had not
43 been passed. But from and after the taking effect of this section, the
44 city school district of said preceding municipality shall have no power
45 to issue any bond, obligation or other evidence of indebtedness which
46 shall bind or render liable the property or inhabitants of any part of
47 the city school district of said municipality included within the city
48 school district of the city of Staten Island as hereby constituted. The
49 apportionment of the debt of the city school district of the preceding
50 municipality shall be determined according to the relative assessed
51 valuation of the real property included in, or remaining without the
52 city school district of the city of Staten Island.
53 (b) Disposition of real and personal property owned by or held in
54 trust for the city school district of the preceding municipality. All
55 the real property owned by the city school district of the preceding
56 municipality and situated in that part of the city school district of
S. 8578 64
1 said municipality included within the city school district of the city
2 of Staten Island, as constituted by this act, is hereby vested in the
3 city school district of the city of Staten Island and divested out of
4 the city school district of the preceding municipality, and all of the
5 real property owned by the city school district of the preceding munici-
6 pality and situated elsewhere in the city school district of the preced-
7 ing municipality is hereby vested in the city school district of the
8 preceding municipality and divested out of the city school district of
9 the city of Staten Island. All of the property owned by the city school
10 district of the preceding municipality other than real property, includ-
11 ing money, investments, securities on investments and money held in
12 trust for the benefit of the city school district of the preceding muni-
13 cipality, directly or indirectly, shall be divided between the city
14 school district of the preceding municipality and the city school
15 district of the city of Staten Island, as constituted by this act, and
16 the proportion of the same to which each shall, in equity and good
17 conscience, be entitled to receive upon such division, shall be ascer-
18 tained and determined by agreement by and between the board of education
19 of the city school district of the preceding municipality, upon the one
20 side, and the board of education of the city school district of the city
21 of Staten Island, upon the other side, and in the case of their inabili-
22 ty to agree upon such division within six months after this section
23 shall take effect, the supreme court in the third judicial district is
24 hereby empowered to divide the same between them and to ascertain and
25 award to each its equitable proportion thereof, and to enforce its
26 determination thereon, and either of the said school districts may
27 institute and prosecute, in its own name, an action in said court for
28 that purpose after the expiration of six months and before the expira-
29 tion of one year after this section takes effect.
30 (c) Documents. The city school district of the preceding municipality
31 shall provide the city school district of the city of Staten Island with
32 all books, papers, documents and files held by such school district
33 which apply primarily to the area of the city school district of the
34 city of Staten Island, including its property, faculty and students, and
35 shall make available for copying by the city school district of the city
36 of Staten Island any other books, papers, documents and files which the
37 city school district of the city of Staten Island shall request as
38 pertaining to the city school district of the city of Staten Island in
39 any other manner.
40 § 3-008. Continuance of municipal services.
41 The preceding municipality shall be obligated to continue to maintain
42 during the transition period all municipal services and related equip-
43 ment and supplies at a level materially equivalent to that level of
44 municipal services and related equipment and supplies for the geograph-
45 ical area of the city of Staten Island as existing on the first of July
46 in the year in which this act shall have become a law subject to exist-
47 ing budget restraints of the preceding municipality.
48 § 3-009. Powers of the city of Staten Island to adopt and amend local
49 laws.
50 Notwithstanding the provisions of any other law, the common council of
51 the city of Staten Island shall have the power to adopt local laws in
52 accordance with the provisions of section 10 of the municipal home rule
53 law; provided, however, that no such local law adopted during the tran-
54 sition period shall be effective until the date of establishment of the
55 city of Staten Island.
S. 8578 65
1 § 3-010. Powers of the city of Staten Island relating to home rule
2 powers.
3 In accordance with the provisions of article IX of the constitution,
4 the city of Staten Island during the transition period shall have all of
5 the rights, powers, privileges and immunities granted to local govern-
6 ments with respect to the power of the legislature to act in relation to
7 the property or affairs of the city of Staten Island.
8 § 4-001. City school district of the city of Staten Island.
9 1. The territory of the city of Staten Island in the county of Rich-
10 mond, on the date when this act shall take effect, shall be and is here-
11 by constituted a city school district, and shall be known as the city
12 school district of the city of Staten Island and shall have and enjoy
13 all the powers and duties of a city school district under the provisions
14 of the education law.
15 2. Such district shall be under the control of a board of education,
16 which shall be composed pursuant to the provisions of article 52 of the
17 education law.
18 § 4-002. Section 2550 of the education law, as amended by chapter 65
19 of the laws of 1972, is amended to read as follows:
20 § 2550. Application of article. This article shall apply to the city
21 school districts of the following cities only: New York, Buffalo,
22 Rochester, Syracuse, Staten Island and Yonkers.
23 § 4-003. Section 2552 of the education law is amended by adding a new
24 subdivision e to read as follows:
25 e. City school district of the city of Staten Island: nine members.
26 § 4-004. Subdivisions 1, 2, 4, 5 and 6 of section 2553 of the educa-
27 tion law, subdivision 1 as separately amended by chapters 211 and 441 of
28 the laws of 1980, subdivisions 2, 4 and 5 as added by chapter 242 of the
29 laws of 1974 and subdivision 6 as amended by chapter 211 of the laws of
30 1980, are amended to read as follows:
31 1. No person shall be eligible to the office of member of a board of
32 education who is not a citizen of the United States, who is not quali-
33 fied to register for or vote at an election in accordance with the
34 provisions of section 5-106 of the election law, and who, in the case of
35 the city school district of the city of Yonkers, has not been a resident
36 of the city school district for which he or she is chosen for a period
37 of at least three years immediately preceding the date of his or her
38 election or appointment and who, in the case of the city school district
39 of the city of Buffalo, in the case of a member to be elected at large
40 is not a qualified voter of such city school district and who has not
41 been a resident of such district for a period of at least three years
42 immediately preceding the date of his or her election and in the case of
43 a member elected from a city school subdistrict is not a qualified voter
44 of such city school subdistrict and has not been a resident of the city
45 school district for three years and a resident of the city school
46 subdistrict which he or she represents or seeks to represent for a peri-
47 od of one year immediately preceding the date of his or her election,
48 and who, in the case of the city school district of the city of Roches-
49 ter, is not a qualified voter under section 5-102 of the election law of
50 such city school district; and who, in the case of the city school
51 district of the city of Staten Island has been a qualified voter under
52 section 5-102 of the election law of such city school district for at
53 least ninety days immediately preceding the date of his or her election
54 or appointment; and who in the case of the city school district of the
55 city of Syracuse has not been a qualified voter under section 5-102 of
S. 8578 66
1 the election law of such city school district for at least ninety days
2 immediately preceding the date of his or her election or appointment.
3 2. In the city school districts of the cities of Rochester and Syra-
4 cuse the members of such board of education shall be chosen by the
5 voters at large at either a general or municipal election, or at both.
6 In the city school district of the city of Staten Island the members of
7 such board of education shall be chosen pursuant to the provisions of
8 subdivision eleven of this section. In the city school district of the
9 city of Buffalo the members of such board of education shall be chosen
10 pursuant to the provisions of subdivision ten of this section.
11 4. In the city school districts of the following cities, the terms of
12 such members shall be as follows:
13 a. Rochester: Four Years;
14 b. Syracuse: Four Years;
15 c. Yonkers: Five Years; and
16 d. Staten Island: Three Years.
17 5. The terms of one-fifth of all the members of a board of education,
18 or of a fraction as close to one-fifth thereof as possible, shall expire
19 annually on the first Tuesday in May, except in the city school
20 districts of the cities of Buffalo, Rochester, Staten Island and Syra-
21 cuse.
22 6. If a vacancy occurs other than by expiration of term in the office
23 of a member of a board of education in a district in which such members
24 are elected at a general or municipal election, such vacancy shall be
25 filled by appointment by the mayor until the next general or municipal
26 election is held, and such vacancy shall then be filled at such election
27 for the unexpired portion of such term, except that in the city school
28 district of the city of Rochester any such vacancy shall be filled
29 pursuant to the provisions of subdivision nine of this section and
30 except further that any such vacancy on the board of education of the
31 city school district of the city of Buffalo shall be filled pursuant to
32 the provisions of subdivision ten of this section and except that any
33 vacancy on the board of education of the city school district of the
34 city of Staten Island shall be filled pursuant to the provisions of
35 subdivision eleven of this section.
36 § 4-005. Section 2553 of the education law is amended by adding a new
37 subdivision 11 to read as follows:
38 11. a. The members of the board of education of the city school
39 district of the city of Staten Island shall be elected by the qualified
40 voters of such city as provided herein.
41 b. The members of the board of education shall be elected at large
42 throughout the city as provided for in this subdivision.
43 c. (1) Every registered voter residing in the city school district of
44 the city of Staten Island and every parent of a child of school age
45 under the jurisdiction of such school district who is a resident of the
46 city of Staten Island for at least ninety days immediately preceding
47 such election and at least eighteen years of age shall be eligible to
48 vote at such election for members of the board of education.
49 (2) Each candidate for member of the board of education of the city
50 school district of the city of Staten Island shall be required to file
51 petitions containing at least five hundred signatures. No petition shall
52 contain any political party or independent body name or label. Each
53 petition shall contain the name of only one candidate and such petition
54 shall be filed with the clerk of the board of elections of the county of
55 Richmond not earlier than the fifth Tuesday and not later than the
56 fourth Tuesday preceding the date on which an election shall be held. A
S. 8578 67
1 certificate of acceptance or declination of any individual so nominated
2 shall be filed not later than the third day after the fourth Tuesday
3 preceding the election.
4 d. No person shall be eligible for the office of member of such board
5 of education who is not a qualified voter under section 5-102 of the
6 election law of such city school district. No person shall hold at the
7 same time the office of member of the board of education and any other
8 elective office nor shall any holder of an elective office be a candi-
9 date for the office of member of such board of education. No employee of
10 the city school district of the city of Staten Island shall be a member
11 of the board of education.
12 e. The term of office of each member of the board of education of the
13 city school district of the city of Staten Island shall be three years.
14 Voting will be by means of cumulative voting. Each voter may cast up to
15 nine votes for the candidate or candidates of his or her choice by cast-
16 ing all of his or her votes for a single candidate, by casting one vote
17 for each of nine candidates, or by allocating any combination of nine
18 whole votes among the candidates. The maximum number of votes each voter
19 may cast shall not exceed nine. Nothing in this paragraph requires that
20 a voter cast more than one vote for any one candidate. The nine candi-
21 dates receiving the greatest number of votes cast shall be elected.
22 f. (1) Such election for such office shall be governed by the
23 provisions of the election law in the same manner as candidates for
24 office generally to be elected by the voters of the city of Staten
25 Island except, as the case may be, as to the date of the election; and,
26 further provided, however, that each such candidate for election as a
27 member of such board of education shall be required to file a petition
28 containing signatures of at least five hundred voters of such city
29 school district.
30 (2) For the election held in May, in the year next succeeding the
31 date on which this subdivision shall have become a law, such petition
32 shall be deemed to be timely filed for such election if filed with the
33 clerk of the board of elections of Richmond county on or before April
34 ninth, in the year next succeeding the date on which this subdivision
35 shall have become a law. A petition sent by mail in an envelope post-
36 marked prior to midnight on April ninth, in the year next succeeding the
37 date on which this subdivision shall have become a law, shall be deemed
38 to be timely filed when received. Written objection to such petition
39 shall be filed within two days after the final date for filing of such
40 petition and specifications of the grounds of the objections shall be
41 filed with the board within one day after the filing of the objection
42 and institution of court proceedings relating thereto shall be commenced
43 not later than May second, in the year next succeeding the date on which
44 this subdivision shall have become a law.
45 g. Petitions for the nomination of members of such school board shall
46 be on white paper containing the required signatures of qualified voters
47 of the city of Staten Island. The sheets of such petition shall be
48 numbered consecutively, beginning with number one, at the foot of each
49 sheet. Such a petition must set forth in every instance the correct
50 date of signing, the full name of the signer and his or her present
51 residence. A signer need not himself or herself fill in the date or
52 residence.
53 h. Each sheet of such a petition shall be signed in ink and shall be
54 substantially in the following form:
55 I, the undersigned, do hereby state that I am a duly qualified voter
56 of the city of Staten Island, that my present place of residence is
S. 8578 68
1 truly stated opposite my signature hereto, I intend to support at the
2 ensuing election and I do hereby nominate the following named person as
3 a candidate for nomination (for the public office of member of the board
4 of education of the city school district of the city of Staten Island at
5 large..............day of....................,) (for the city school
6 district.............day of........,)
7 In witness whereof, I have hereunto set my hand the day and year
8 placed opposite my signature.
9 AssemblyElection
10 DateNameofSignerPresentResidenceDistrictDistrict
11 ....... ................ ............. ... ...
12 ....... ................ ............. ... ...
13 ....... ................ ............. ... ...
14 The petition shall be authenticated by witnesses. Such statement
15 shall be accepted for all purposes as the equivalent of an affidavit,
16 and if false shall subject the witness to the same penalties as if
17 he/she had been duly sworn. The form of such statement shall be
18 substantially as follows:
19 STATEMENT OF WITNESS
20 I,...................., (name of witness), state: I am a duly quali-
21 fied voter of the state of New York, and now reside in the city, town or
22 village of..............., in such state, at ................(fill in
23 street and house number and post office) therein. I know each of the
24 voters whose names are subscribed to this petition sheet containing
25 (fill in number).............signatures and each of them subscribed the
26 same in my presence and upon so subscribing declared to me that the
27 foregoing statement, made and subscribed by him/her, was true.
28 .....................
29 Signature of witness
30 Date.......
31 i. The board of elections shall refuse to accept such petitions
32 signed by an insufficient number of qualified voters, or petitions which
33 are not timely or petitions bearing a political party or independent
34 body, name or emblem or which contain the name of more than one candi-
35 date.
36 j. Except as it may be modified by the provisions of paragraph f of
37 this subdivision, the provisions of the election law with respect to
38 acceptances by candidates nominated by independent nominating petitions
39 shall apply to candidates nominated by petitions for members of such
40 board of education.
41 k. Objections to petitions for the nomination of members of such
42 board of education and procedures and remedies applicable to such
43 objections shall be the same as those applicable to independent nominat-
44 ing petitions under the election law, except as it may be modified by
45 the provisions of paragraph d of this subdivision.
46 l. The board of elections shall cause to be printed official ballots
47 containing the names of all candidates as above provided, except that
48 the board may refuse to have the names of ineligible candidates placed
49 on such ballots. The names of the candidates shall be arranged accord-
50 ing to lot, and shall not bear the designation of any political party or
51 independent body, name or emblem. Blank spaces shall be provided so
52 that voters may vote for candidates who have not been nominated for the
53 offices to be filled at such elections. The form of such ballots shall
S. 8578 69
1 conform substantially to the form of ballots used at general elections
2 as prescribed in the election law.
3 m. Voting for the election of members of such board of education
4 shall be by voting machine, if practicable, and shall be governed by the
5 applicable provisions of the election law with respect to voting
6 machines.
7 n. If a candidate, after a petition in his or her behalf shall have
8 been duly filed with the clerk of the board of elections, and prior to
9 the date of the election, shall decline to accept the nomination, die,
10 remove from the school district, accept or be a candidate for another
11 elective office, or become otherwise disqualified for such city school
12 district office, a further petition may be filed with such clerk, nomi-
13 nating another candidate in his or her place and stead. Such further
14 petition shall in all respects comply with the provisions of paragraphs
15 f, g and i of this subdivision, except that it may be filed at any time
16 up to and including the fifteenth day preceding the date of the election
17 pursuant to the provisions of this subdivision and the time within which
18 to accept or object to such further petition shall be computed from the
19 date of filing or said fifteenth day, whichever is earlier.
20 o. Whenever a vacancy shall occur or exist in the office of member of
21 the board of education except by reason of expiration of term or
22 increase in the number of members of such board, the candidate who has
23 received the next highest total number of votes in the preceding school
24 board election as certified by the board of elections shall be selected
25 to fill the vacancy. In the event that no candidate is available, then
26 the mayor of the city of Staten Island shall appoint a person to fill
27 the vacancy for the remainder of the unexpired term.
28 p. The members so elected to the board of education shall convene on
29 the first business day in July of each year at the time of the commence-
30 ment of their term of office and select from their members a president
31 who shall serve for a term of one year or such other term, not exceeding
32 the term of his or her office, as may be fixed by the rules and regu-
33 lations of the board.
34 q. The election of members of the board of education of the city
35 school district of the city of Staten Island shall take place on May
36 second, two thousand twenty-five and on the first Tuesday in May every
37 third year thereafter. Such election shall be conducted by the board of
38 elections of the county of Richmond in the same manner as general
39 elections are conducted by it.
40 r. Polls shall be open for voting for the hours prescribed by section
41 8-100 of the election law for primary elections. The results of such
42 elections, after canvassing, shall be certified and reported by the
43 board of elections to the city clerk and the board of education of such
44 city.
45 § 4-006. Subdivision 2 of section 2554 of the education law, as
46 amended by chapter 27 of the laws of 2012, is amended to read as
47 follows:
48 2. [To] Except as provided in subdivision one of section two thousand
49 five hundred seventy-three of this article, to create, abolish, maintain
50 and consolidate such positions, divisions, boards or bureaus as, in its
51 judgment, may be necessary for the proper and efficient administration
52 of its work; to appoint a superintendent of schools, such associate,
53 assistant, district and other superintendents, examiners, directors,
54 supervisors, principals, teachers, lecturers, special instructors,
55 medical inspectors, nurses, auditors, attendance officers, secretaries,
56 clerks, custodians, janitors and other employees and other persons or
S. 8578 70
1 experts in educational, social or recreational work or in the business
2 management or direction of its affairs as said board shall determine
3 necessary for the efficient management of the schools and other educa-
4 tional, social, recreational and business activities; provided, however,
5 that in the city school districts of the cities of Buffalo, Rochester,
6 and Syracuse appointment of associate, assistant and district super-
7 intendents, and other supervising staff who are excluded from the right
8 to bargain collectively pursuant to article fourteen of the civil
9 service law shall, within the amounts budgeted for such positions, be by
10 the superintendent of such city school district; and to determine their
11 duties except as otherwise provided herein.
12 § 4-007. Subdivision 8 of section 2554 of the education law, as
13 amended by chapter 576 of the laws of 1964, is amended to read as
14 follows:
15 8. To dispose of, in the city of New York and the city of Staten
16 Island, to the best advantage of the city of New York or the city of
17 Staten Island, either by sale or on the basis of money allowance for
18 waste paper all books delivered to the several public schools of such
19 city that have been discarded either by reason of being obsolete, no
20 longer required by the course of study, worn by long usage or mutilated
21 by accident. If disposal is made by sale it shall be to the highest
22 bidder and the money realized shall be paid into the city treasury and
23 shall at once be appropriated by the city to the special school fund of
24 the board of education entitled "supplies". If disposal is made on the
25 basis of money allowance for waste paper, it shall be to the highest
26 bidder. Such discarded books may be disposed of without public adver-
27 tisement or entry into a formal contract. Should the discarded books be
28 in such condition that no sale or exchange can be made, or should there
29 be reason to believe that such discarded books have become infected
30 through disease among the pupils, or should the superintendent of
31 schools certify that such discarded books contain erroneous, inaccurate,
32 obsolete or antiquated subject matter, illustrations, maps, charts or
33 other material, the committee on supplies of the board of education, if
34 such books cannot be sold, given away or otherwise salvaged as waste
35 paper without danger to the public health, may authorize their
36 destruction by fire, in which event the superintendent of school
37 supplies shall obtain and file in his office a certificate that such
38 books have been so destroyed, signed by the principal of the school in
39 which the books are located.
40 § 4-008. Subdivision 14 of section 2554 of the education law, such
41 section as renumbered by chapter 762 of the laws of 1950, is amended to
42 read as follows:
43 14. To provide in the schools administered by the board of education
44 of the city of New York or the city of Staten Island, the proper book or
45 books, in form as required by the by-laws of the board of education of
46 such city, in which it shall cause the class teachers under the direc-
47 tion and supervision of the principal to enter the names, ages and resi-
48 dences of the pupils attending the school, the name of the parent or
49 guardian of each pupil and the days on which the pupils shall have
50 attended respectively, and the aggregate attendance of each pupil during
51 the year, and also the day upon which the school shall have been visited
52 by the superintendent of schools or by an associate superintendent of
53 schools or by an assistant superintendent, or by members of the board of
54 education, or by members of the local school board, or by any of them,
55 which entry shall be verified by such oath or affirmation of the princi-
56 pal as may be prescribed by the board of education of such city. Such
S. 8578 71
1 books shall be preserved as the property of such board of education and
2 shall at all times be open to inspection by members of such board of
3 education, by members of the local school boards and by the superinten-
4 dent of schools, or by any associate superintendent of schools, or by
5 the assistant superintendents.
6 § 4-009. Subdivision 15 of section 2554 of the education law is
7 amended by adding a new paragraph b-1 to read as follows:
8 b-1. In the city of Staten Island, the board of education shall make
9 rules and regulations for the conduct, operation and maintenance of
10 extra classroom activities and for the safeguarding, accounting and
11 audit of all moneys received and derived therefrom. In the case of any
12 extra classroom activity as it shall deem proper, and notwithstanding
13 the provisions of section twenty-five hundred thirty of this title, it
14 may direct that the moneys received or derived from the conduct, opera-
15 tion or maintenance of such an extra classroom activity be deposited
16 with the chief fiscal officer of the board of education, who in such
17 event shall be the treasurer of such an extra classroom activity, the
18 moneys of which are required to be so deposited. In the procurement of
19 articles and services for the conduct, operation and maintenance of a
20 cafeteria or restaurant service, the board of education shall be subject
21 to the provisions of subdivision ten of section twenty-five hundred
22 fifty-six of this article, except that said board of education need not
23 have duly advertised for estimates in order to contract for such arti-
24 cles or services in an amount exceeding one thousand dollars. In such
25 city, the board of education shall also have power to assign any of its
26 officers or employees to perform such duties as it may prescribe in
27 connection with an extra classroom activity and to designate such of its
28 officers and employees when so assigned from whom a bond shall be
29 required for faithful performance of their duties and to fix the sum in
30 which each such bond shall be given.
31 § 4-010. Section 2554 of the education law is amended by adding two
32 new subdivisions 29 and 30 to read as follows:
33 29. To assign, in its discretion, one or more employees of the board
34 in the city of Staten Island to serve as trial examiner with power to
35 conduct investigations and hearings on behalf of such board. Each trial
36 examiner shall report the result of any such investigation or hearing to
37 the board.
38 30. To employ a superintendent of the city of Staten Island school
39 district by contract for a four-year term of office, subject to removal
40 for cause, at a salary to be fixed within the budgetary allocation
41 therefor.
42 § 4-011. Subdivision 5 of section 2556 of the education law, as
43 amended by chapter 480 of the laws of 2014, is amended to read as
44 follows:
45 5. It shall be unlawful for a schoolhouse to be constructed in the
46 city of New York or the city of Staten Island without an open-air play-
47 ground attached to or used in connection with the same. Existing play-
48 grounds shall not be sold, leased or transferred, or permanently author-
49 ized for other uses such as school building construction, renovation,
50 placement or storage of building materials for such work that would
51 eliminate the use of such playground space for outdoor recreational
52 activities unless a plan is established and implemented to provide suit-
53 able and adequate physical activities or space to accommodate the phys-
54 ical and recreational needs of the pupils of such building. The
55 provisions of this subdivision shall not apply to school construction or
S. 8578 72
1 renovation activities that occur on or require the use of such play-
2 grounds for a duration of no more than one year.
3 § 4-012. Section 2556 of the education law is amended by adding a new
4 subdivision 6-a to read as follows:
5 6-a. After a site has been selected and plans and specifications for a
6 building thereon have been approved as provided herein, the board of
7 education of the city school district of the city of Staten Island may,
8 in its discretion, by regulation deliver such plans and specifications
9 to the common council or other local legislative body which may thereup-
10 on, in its discretion, award a contract for the erection of such build-
11 ing in the same manner and in accordance with the provisions of law
12 regulating the awarding of contracts for the construction of municipal
13 buildings of such city.
14 § 4-013. Section 2556 of the education law is amended by adding three
15 new subdivisions 10-b, 11-a and 13-a to read as follows:
16 10-b. In the city of Staten Island if the several parts of the work or
17 labor to be done and/or the supplies, materials and equipment to be
18 furnished shall together involve an expenditure of not more than ten
19 thousand dollars, the same may be procured in compliance with the proce-
20 dures on contracting provided in chapter nine of the charter of the city
21 of Staten Island.
22 11-a. In all contracts by the board of education of the city school
23 district of the city of Staten Island, for the construction, repair,
24 alteration or remodeling of buildings or for the purchase of supplies,
25 furniture or equipment, a stipulation may be inserted for liquidated
26 damages for any breach, failure or delay in the performance thereof; and
27 such board of education is authorized and empowered to remit the whole
28 or any part of such damages as in its discretion may be just and equita-
29 ble; and in all suits commenced on any such contracts or on any bond
30 given in connection therewith it shall not be necessary for such board,
31 whether plaintiff or defendant, to prove actual or specific damages
32 sustained by reason of any such breach, failure or delay, but such stip-
33 ulation for liquidated damages shall be conclusive and binding upon all
34 parties.
35 13-a. The board of education of the city school district of the city
36 of Staten Island may through its duly designated officers, agents or
37 employees enter upon public or private property for the purpose of
38 making surveys, soundings or test borings necessary for the exercise of
39 the powers or the performance of the duties, of such board of education,
40 provided, however, that the mayor had formally approved the acquisition
41 of the real property as a school site.
42 § 4-014. The education law is amended by adding three new sections
43 2560-a, 2561-a, and 2562-a to read as follows:
44 § 2560-a. Liability of board of education of the city school district
45 of the city of Staten Island. 1. Notwithstanding any inconsistent
46 provision of law, general, special or local, or the limitation contained
47 in the provisions of any city charter, any duly appointed member of the
48 board of education of the city school district of the city of Staten
49 Island, the members of the school board of such city, the teaching or
50 supervising staff, officer, or employee of such board, member of a
51 committee on special education or subcommittee thereof or authorized
52 participant in the school volunteer program in such city shall be enti-
53 tled to legal representation and indemnification pursuant to the
54 provisions of, and subject to the conditions, procedures and limitations
55 contained in section fifty-k of the general municipal law, except that
S. 8578 73
1 any judgment or settlement pursuant to this section shall be payable
2 from the moneys of the board of education.
3 2. Notwithstanding any inconsistent provision of law, general, special
4 or local, or limitations contained in the provision of any city charter,
5 it shall not be within the power of the board of education of the city
6 of Staten Island to require a volunteer participating in any school
7 activities to execute a waiver of responsibility in favor of that board
8 as a condition, either express or implied, of such participation. Such
9 waiver would include, but not be limited to, a release of any party
10 against whom the volunteer may have rights under any existing provision
11 of law for personal injuries incurred during the performance of author-
12 ized volunteer duties by an authorized participant in a school volunteer
13 program.
14 § 2561-a. Liability of certain officers and employees of the board of
15 education of the city school district of the city of Staten Island. If,
16 in order to furnish needy children or minors with food, shoes, clothing,
17 and other necessities to enable them to attend school as contemplated by
18 law and to benefit from instruction, such board of education shall have
19 required, imposed or permitted, the performance of duties by any of its
20 officers and employees, because of which it became necessary or expedi-
21 ent for any such officer or employee to act for such board of education,
22 or to act for or in cooperation with any other agency of government,
23 federal, state or municipal, then irrespective of the fact that the
24 authority to require, impose or permit the performance of such duties
25 may not have been specifically conferred upon said board of education by
26 provisions of this chapter, such board of education shall be liable for
27 and shall assume liability to the extent that it shall save harmless any
28 such officers or employees for damages arising out of the negligence of
29 any such officer or employee while actually engaged in the performance
30 of such required or permitted duties, provided the officer or employee
31 at the time was acting within the scope of his or her duties or employ-
32 ment.
33 § 2562-a. Presentation of claims against the board of education of
34 the city school district of the city of Staten Island to be pleaded. 1.
35 No action or special proceeding, for any cause whatever, shall be prose-
36 cuted or maintained against the board of education of the city school
37 district of the city of Staten Island, unless it shall appear by and as
38 an allegation in the complaint or necessary moving papers that at least
39 thirty days have elapsed since the demand, claim or claims upon which
40 such action or special proceeding is founded were presented to the said
41 board of education for adjustment, and that the officer or body having
42 the power to adjust or pay said claim has neglected or refused to make
43 an adjustment or payment thereof for thirty days after such presentment.
44 2. The said board of education may require any person presenting for
45 settlement an account or claim for any cause whatever against it to be
46 sworn before it or a committee thereof, or before the auditor, or before
47 any person designated by said board, touching such account or claim, and
48 when so sworn, to answer orally as to any facts relative to the justness
49 of such account or claim. A member of the board, the auditor, or any
50 other person designated as hereinbefore stated, shall have the power to
51 administer an oath to any person who shall give testimony to the just-
52 ness of such account or claim, and for the purpose of securing such
53 testimony may issue subpoenas for the attendance of witnesses. Wilful
54 false swearing before the said board of education, a committee thereof,
55 the auditor, or before any person designated as hereinbefore stated, is
56 perjury and punishable as such.
S. 8578 74
1 § 4-015. Section 2566 of the education law is amended by adding a new
2 subdivision 3-a to read as follows:
3 3-a. In the city of Staten Island, to exercise the administrative and
4 ministerial powers of the board of education.
5 § 4-016. The education law is amended by adding two new sections
6 2567-a and 2568-a to read as follows:
7 § 2567-a. Protection of rights exercised under licenses issued by a
8 board of education in the city of Staten Island. No person shall
9 forfeit any right given to him or her under a license issued by such
10 board of education, pursuant to this chapter, because of absence while
11 in service in the armed forces of the United States or in the service of
12 the American Red Cross. Any person may at any time within six months
13 after his or her discharge from service in the armed forces of the
14 United States or the American Red Cross make application to the license
15 issuing authority by affidavit setting forth that he or she has been in
16 service in the armed forces of the United States or the American Red
17 Cross and has been discharged from such service and that he or she
18 desires the license theretofore issued to him or to her to be reissued
19 as of the date of such application, and it shall be the duty of the
20 licensing authority to reinstate such license as of the date on which
21 application is made.
22 § 2568-a. Superintendent of schools authorized to require medical
23 examination of certain employees of the board of education of the city
24 school district of the city of Staten Island. The superintendent of
25 schools shall be empowered to require any person employed by the board
26 of education of the city school district of the city of Staten Island to
27 submit to a medical examination by a physician or school medical inspec-
28 tor of the board, in order to determine the mental or physical capacity
29 of such person to perform his or her duties, whenever it has been recom-
30 mended in a report in writing that such examination should be made.
31 Such report to the superintendent may be made only by a person under
32 whose supervision or direction the person recommended for such medical
33 examination is employed. The person required to submit to such medical
34 examination shall be entitled to be accompanied by a physician or other
35 person of his or her own choice. The findings upon such examination
36 shall be reported to the superintendent of schools and may be referred
37 to and considered for the evaluation of service of the person examined
38 or for disability retirement.
39 § 4-017. Subdivision 1 of section 2573 of the education law, as
40 amended by section 3 of subpart D of part EE of chapter 56 of the laws
41 of 2015, subparagraph ii of paragraph (a) as amended by chapter 201 of
42 the laws of 2022 and subparagraph ii of paragraph (b) as amended by
43 chapter 345 of the laws of 2019, is amended to read as follows:
44 1. (a) i. [Teachers] Except as otherwise provided for in paragraph (c)
45 of this subdivision, teachers and all other members of the teaching
46 staff, appointed prior to July first, two thousand fifteen and author-
47 ized by section twenty-five hundred fifty-four of this article, shall be
48 appointed by the board of education, upon the recommendation of the
49 superintendent of schools, for a probationary period of three years,
50 except that in the case of a teacher who has rendered satisfactory
51 service as a regular substitute for a period of two years or as a
52 seasonally licensed per session teacher of swimming in day schools who
53 has served in that capacity for a period of two years and has been
54 appointed to teach the same subject in day schools on an annual salary,
55 the probationary period shall be limited to one year; provided, however,
56 that in the case of a teacher who has been appointed on tenure in anoth-
S. 8578 75
1 er school district within the state, the school district where currently
2 employed, or a board of cooperative educational services, and who was
3 not dismissed from such district or board as a result of charges brought
4 pursuant to subdivision one of section three thousand twenty-a or
5 section three thousand twenty-b of this chapter, the probationary period
6 shall not exceed two years; provided, however, that in cities with a
7 population of one million or more, a teacher appointed under a newly
8 created license, for teachers of reading and of the emotionally hand-
9 icapped, to a position which the teacher has held for at least two years
10 prior to such appointment while serving on tenure in another license
11 area who was not dismissed as a result of charges brought pursuant to
12 subdivision one of section three thousand twenty-a or section three
13 thousand twenty-b of this chapter, the probationary period shall be one
14 year. The service of a person appointed to any of such positions may be
15 discontinued at any time during such probationary period, on the recom-
16 mendation of the superintendent of schools, by a majority vote of the
17 board of education. Each person who is not to be recommended for
18 appointment on tenure shall be so notified by the superintendent of
19 schools in writing not later than sixty days immediately preceding the
20 expiration of his or her probationary period. In city school districts
21 having a population of four hundred thousand or more, persons with
22 licenses obtained as a result of examinations announced subsequent to
23 the twenty-second day of May, nineteen hundred sixty-nine appointed upon
24 conditions that all announced requirements for the position be fulfilled
25 within a specified period of time, shall not acquire tenure unless and
26 until such requirements have been completed within the time specified
27 for the fulfillment of such requirements, notwithstanding the expiration
28 of any probationary period. In all other city school districts subject
29 to the provisions of this article, failure to maintain certification as
30 required by this article and by the regulations of the commissioner
31 shall be cause for removal within the meaning of subdivision five of
32 this section.
33 ii. [Teachers] Except as otherwise provided for in paragraph (c) of
34 this subdivision, teachers and all other members of the teaching staff
35 appointed on or after July first, two thousand fifteen and authorized by
36 section twenty-five hundred fifty-four of this article, shall be
37 appointed by the board of education, upon the recommendation of the
38 superintendent of schools, for a probationary period of four years,
39 except that in the case of a teacher who has rendered satisfactory
40 service as a regular substitute for a period of two years and, if a
41 classroom teacher, has received annual professional performance review
42 ratings in each of those years, or has rendered satisfactory service as
43 a seasonally licensed per session teacher of swimming in day schools who
44 has served in that capacity for a period of two years and has been
45 appointed to teach the same subject in day schools on an annual salary,
46 the teacher shall be appointed for a probationary period of two years;
47 provided, however, that in the case of a teacher who has been appointed
48 on tenure in another school district within the state, the school
49 district where currently employed, or a board of cooperative educational
50 services, and who was not dismissed from such district or board as a
51 result of charges brought pursuant to subdivision one of section three
52 thousand twenty-a or section three thousand twenty-b of this chapter,
53 the teacher shall be appointed for a probationary period of three years;
54 provided that, in the case of a classroom teacher, the teacher demon-
55 strates that he or she received an annual professional performance
56 review rating pursuant to section three thousand twelve-c or section
S. 8578 76
1 three thousand twelve-d of this chapter in his or her final year of
2 service in such other school district or board of cooperative educa-
3 tional services; provided, however, that, in the case of a classroom
4 teacher who has been appointed for a probationary period during the two
5 thousand twenty--two thousand twenty-one, the two thousand twenty-one--
6 two thousand twenty-two or the two thousand twenty-two--two thousand
7 twenty-three school year and who has been appointed on tenure in another
8 school district within the state, the school district where currently
9 employed, board of cooperative educational services or state school for
10 the blind or deaf, and who was not dismissed from such district, board
11 or state school for the blind or deaf as a result of charges brought
12 pursuant to section three thousand twenty-a or section three thousand
13 twenty-b of this chapter, such teacher shall be appointed for a proba-
14 tionary period of three years; provided that, in the case of a classroom
15 teacher, such teacher demonstrates that he or she received an annual
16 professional performance review rating pursuant to section three thou-
17 sand twelve-c or section three thousand twelve-d of this chapter in the
18 two thousand seventeen--two thousand eighteen or two thousand eighteen-
19 -two thousand nineteen school year in such other school district, board
20 of cooperative educational services or state school for the blind or
21 deaf; provided further, however, that in cities with a population of one
22 million or more, a teacher appointed under a newly created license, for
23 teachers of reading and of the emotionally handicapped, to a position
24 which the teacher has held for at least two years prior to such appoint-
25 ment while serving on tenure in another license area who was not
26 dismissed as a result of charges brought pursuant to subdivision one of
27 section three thousand twenty-a or section three thousand twenty-b of
28 this chapter, the teacher shall be appointed for a probationary period
29 of two years. The service of a person appointed to any of such posi-
30 tions may be discontinued at any time during such probationary period,
31 on the recommendation of the superintendent of schools, by a majority
32 vote of the board of education. Each person who is not to be recommended
33 for appointment on tenure shall be so notified by the superintendent of
34 schools in writing not later than sixty days immediately preceding the
35 expiration of his or her probationary period. In all city school
36 districts subject to the provisions of this article, failure to maintain
37 certification as required by this article and by the regulations of the
38 commissioner shall be cause for removal within the meaning of subdivi-
39 sion five of this section.
40 (b) i. [Administrators] Except as otherwise provided for in paragraph
41 (c) of this subdivision, administrators, directors, supervisors, princi-
42 pals and all other members of the supervising staff, except executive
43 directors, associate, assistant, district and community superintendents
44 and examiners, appointed prior to July first, two thousand fifteen and
45 authorized by section twenty-five hundred fifty-four of this article,
46 shall be appointed by the board of education, upon the recommendation of
47 the superintendent or chancellor of schools, for a probationary period
48 of three years. The service of a person appointed to any of such posi-
49 tions may be discontinued at any time during the probationary period on
50 the recommendation of the superintendent of schools, by a majority vote
51 of the board of education.
52 ii. [Administrators] Except as otherwise provided for in paragraph (c)
53 of this subdivision, administrators, directors, supervisors, principals
54 and all other members of the supervising staff, except executive direc-
55 tors, associate, assistant, district and community superintendents and
56 examiners, appointed on or after July first, two thousand fifteen and
S. 8578 77
1 authorized by section twenty-five hundred fifty-four of this article,
2 shall be appointed by the board of education, upon the recommendation of
3 the superintendent or chancellor of schools, for a probationary period
4 of four years provided that such probationary period may be extended in
5 accordance with paragraph (b) of subdivision five of this section;
6 provided, however, that in the case of a principal, administrator,
7 supervisor, or other member of the supervising staff who has been
8 appointed on tenure pursuant to this chapter as an administrator within
9 an authorized administrative tenure area in another school district
10 within the state, the school district where currently employed, or a
11 board of cooperative educational services, and who was not dismissed
12 from such district or board as a result of charges brought pursuant to
13 subdivision one of section three thousand twenty-a or section three
14 thousand twenty-b of this chapter, the principal, administrator, super-
15 visor or other member of the supervising staff shall be appointed for a
16 probationary period of three years. The service of a person appointed to
17 any of such positions may be discontinued at any time during the proba-
18 tionary period on the recommendation of the superintendent of schools,
19 by a majority vote of the board of education.
20 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
21 subdivision, the superintendent of the city school district of the city
22 of Staten Island shall have the authority to appoint, with the approval
23 of the school board, principals and city wide administrators. Such
24 superintendent may appoint assistant principals and other clerical and
25 administrative staff without the approval of the school board. Such
26 assistant principals, clerical and administrative staff shall serve in
27 accordance with the provisions of paragraphs (a) and (b) of this subdi-
28 vision.
29 § 4-018. Section 2576 of the education law is amended by adding a new
30 subdivision 4-a to read as follows:
31 4-a. In the city of Staten Island such estimate shall be filed with
32 the officer authorized to receive other department estimates and the
33 same acted on by such officer and by the common council of such city in
34 the same manner and with the same effect as other department estimates.
35 The common council is also authorized, in its discretion, to include in
36 such budget a sum for any of the purposes enumerated in paragraph c of
37 subdivision one of this section, and any further amount for such
38 purposes as may be authorized by a tax election held in such city pursu-
39 ant to the provisions of this chapter. After the adoption of such budget
40 the common council shall cause the amount thereof to be included in the
41 tax and assessment roll of the city and the same shall be collected in
42 the same manner and at the same time as other taxes of the city are
43 collected, and placed to the credit of the board of education of the
44 city school district of such city.
45 § 4-019. Section 2579 of the education law is amended by adding a new
46 subdivision 4 to read as follows:
47 4. If the city of Staten Island shall issue obligations to defray, in
48 whole or in part, the expense of the construction, improvement and
49 equipment of school buildings or the purchase or acquisition of school
50 sites, the proceeds of the sale of such bonds shall be paid into the
51 treasury of the city and placed to the credit of the board of education
52 of the city school district of such city. As such obligations become
53 due the municipal authorities of the city shall include in the tax levy,
54 and assess upon the property of the city, the amount necessary to pay
55 such bonds and interest thereon.
S. 8578 78
1 § 4-020. Additional transitory provisions relating to the city school
2 district of the city of Staten Island. 1. The board of education of the
3 city school district of the city of Staten Island shall possess those
4 powers and duties as are authorized for a city school district pursuant
5 to article 52 of the education law, as amended by this act. In further-
6 ance of such powers and duties the board shall confer with the mayor,
7 the comptroller and the common council of the city of Staten Island and
8 the board of education of the preceding municipality for the purpose of
9 preparing for submission and implementation of a budget for the school
10 year commencing on the first of July in the second year next succeeding
11 the date on which this act shall have become a law and to take such
12 other actions as may be necessary and appropriate to provide for the
13 operation of the city school district of the city of Staten Island on
14 and after the date of establishment of the city of Staten Island.
15 2. Fiscal and regulatory authority pertaining to the public schools to
16 be contained within the city school district of the city of Staten
17 Island shall remain with the board of education of the city school
18 district of the preceding municipality until the date of establishment
19 of the city of Staten Island.
20 3. All employees of the board of education of the city school district
21 of the preceding municipality and such other employees of any other
22 public entity as may be transferred pursuant to the provisions of this
23 act shall retain all rights, privileges, benefits and salaries to which
24 the employee was previously entitled as an employee of the board of
25 education of the preceding municipality. Transfers of employment to the
26 city school district of the city of Staten Island shall be conducted in
27 the same manner as is provided by for the city of Staten Island as
28 provided in this act. Such employees shall not suffer a loss of employ-
29 ment by reason of such transfer within a period of three years from the
30 effective date of such transfer nor shall any such employees be subject
31 to any additional employment probationary period by reason of such
32 transfer.
33 4. During the transition period as defined in section 1-003 of this
34 act, the city school district of the city of Staten Island may retain
35 the services of a superintendent of schools, a chief financial officer
36 and such other staff as to which funding shall have been provided by the
37 mayor and the common council of the city of Staten Island.
38 5. All actions deemed necessary and proper to implement the provisions
39 of sections 4-001 through 4-019 of this act are hereby authorized.
40 § 5-001. Transfer of the college of Staten Island. 1. The legislature
41 finds that due to the establishment of the city of Staten Island, the
42 transfer of the college of Staten Island from the city university of New
43 York to the state university of New York is a public purpose. Such
44 transfer shall not affect the title to the real property of the college
45 of Staten Island which shall continue to be held by the state of New
46 York, except that notwithstanding the provisions of paragraph b of
47 subdivision 1 of section 6219 of the education law if such real property
48 ceases to be used for college purposes, title to such property shall
49 revert to the city of Staten Island as successor in interest to the
50 prior municipal government of the geographical area of Staten Island.
51 The college of Staten Island is hereby transferred to the state univer-
52 sity of New York. Such transfers shall include all furnishings, equip-
53 ment, records and all other property normally allocated to the college
54 of Staten Island by the city university of New York.
55 2. The college of Staten Island is hereby transferred from the city
56 university of New York to the state university of New York. The college
S. 8578 79
1 of Staten Island shall continue to offer a full range of baccalaureate
2 degree programs and associate degree programs, selected masters degree
3 programs and provide faculty participation in research and doctoral
4 programs at the graduate center of the city university of New York. The
5 city of Staten Island shall serve as local sponsor for the two year
6 component of the college of Staten Island and such component shall be
7 subject to the provisions of section 6304 of the education law. Such two
8 year component shall be a part of the state university of New York and
9 shall not be governed by a community college board of trustees.
10 3. (a) Whenever the term "city university of New York" is referred to
11 or designated in any law, general, special or local, contract, lease,
12 judgment, decision or document pertaining to the functions, powers and
13 duties relating to the college of Staten Island hereby continued in,
14 transferred and assigned to, or devolved upon, the state university of
15 New York, such reference or designation shall be deemed to refer to and
16 include the state university of New York, so far as such law, contract,
17 lease, judgment, decision or document pertains to matters which are
18 within its jurisdiction by reason of the redesignation, continuation,
19 transfer, assignment and devolution of functions, powers and duties made
20 by this act.
21 (b) All contracts, leases and other agreements entered into by the
22 city university of New York relating to the college of Staten Island
23 before the effective date of this section shall be conducted and
24 completed by the state university of New York in the same manner and
25 under the same terms and conditions and with the same effect as if the
26 same had been conducted and completed by the state university of New
27 York. In addition, any contracts, leases and other agreements entered
28 into by the state university of New York prior to the effective date of
29 this section shall remain in full force and effect and shall be
30 conducted and completed by the state university of New York.
31 (c) All rights, title and interest in personal property used for
32 educational or administrative purposes of the college of Staten Island
33 of the city university of New York vested in the city university of New
34 York on the effective date of this section are hereby transferred,
35 assigned and devolved upon the state university of New York.
36 (d) No existing right or remedy of any character shall be lost,
37 impaired or affected, nor shall any new right or remedy of any character
38 accrue to or for the benefit of any person by reason of the transfer of
39 the college of Staten Island pursuant to the provisions of this act.
40 (e) No action or proceeding based upon a cause of action which arose
41 prior to the effective date of this section brought by or against the
42 board of trustees of the city university of New York, the city universi-
43 ty construction fund, the board of trustees of the state university of
44 New York or the college of Staten Island shall be affected by any
45 provision of this act.
46 (f) Any lease entered into by the city university of New York for the
47 purposes of the college of Staten Island before the effective date of
48 this section is hereby transferred, assigned and devolved upon the state
49 university of New York, notwithstanding any provision that may be
50 contained therein providing for the nonassignability of such lease and
51 any such provision shall be deemed to be void as against the public
52 policy of the state and of no force and effect.
53 4. A council for the college of Staten Island is hereby established
54 pursuant to section 356 of the education law. It shall consist of ten
55 members, nine of whom shall be appointed by the governor and one of whom
56 shall be elected by and from among the students of the institution. Such
S. 8578 80
1 voting members shall be subject to every provision of any general,
2 special or local law, ordinance, charter, code, rule or regulation
3 applying to the voting members of such board with respect to the
4 discharge of their duties including, but not limited to those provisions
5 setting forth codes of ethics, disclosure requirements and prohibiting
6 business and professional activities. The election of the student member
7 shall be conducted in accordance with rules and regulations promulgated
8 by the respective representative campus student association in accord-
9 ance with guidelines established by the state university trustees. One
10 member shall be designated by the governor as chairman. Vacancies shall
11 be filled for the unexpired term in the same manner as original
12 selections. The term of office for each council member shall be seven
13 years. The term of office for the student member shall be one year. In
14 the event the student member ceases to be a student at the institution
15 such member shall be required to resign. Members appointed by the gover-
16 nor may be removed by the governor. Members elected by the students of
17 the institution may be removed by such students in accordance with rules
18 and regulations promulgated by the respective representative campus
19 student association in accordance with guidelines promulgated by the
20 state university trustees. Members of such council shall receive no
21 compensation for their services but shall be reimbursed for the expenses
22 actually and necessarily incurred by them in the performance of their
23 duties hereunder.
24 5. All employees of the college of Staten Island of the city universi-
25 ty of New York shall be transferred to employment in the state universi-
26 ty of New York and shall retain all rights, privileges, benefits and
27 salaries to which the employee was previously entitled as an employee of
28 the city university of New York.
29 Employees of the college of Staten Island of the city university of
30 New York transferred to employment in the state university of New York
31 pursuant to the provisions of this act shall not be involuntarily
32 assigned to work outside the geographical boundaries of the city of
33 Staten Island nor shall any such employees suffer a loss of employment
34 by reason of such transfer within a period of three years from the
35 effective date of such transfer nor shall any such employees be subject
36 to any additional employment probationary period by reason of their
37 transfer.
38 Employees transferred from the college of Staten Island of the city
39 university of New York to employment in the state university of New
40 York except for those designated managerial or confidential shall be
41 included in employer - employee negotiating units comparable to existing
42 units in the city university of the city of New York. With respect to
43 employees to be placed in such negotiating units, the public employee
44 organization recognized or certified to represent the employees in
45 comparable city university of the city of New York negotiating units
46 shall be recognized as the unit representative.
47 All rights, privileges and benefits provided by collectively bargained
48 agreements to employees of the city university of the city of New York
49 shall be continued for such employees transferred, reappointed or other-
50 wise employed until such time as successor collective bargaining agree-
51 ments are negotiated.
52 The state university of New York shall consult and bargain on all
53 terms and conditions of employment with the appropriate public employee
54 organization with respect to the establishment of any new titles which
55 are similar to or reasonably related to titles already represented by
S. 8578 81
1 such public employee organizations in the city university of the city of
2 New York.
3 Any such titles for which terms and conditions are bargained pursuant
4 to this subdivision shall be deemed to be successor titles within the
5 meaning of applicable law. So long as the responsibilities of employees
6 in these titles are reasonably related to the responsibilities of
7 employees currently represented by public employee organizations, such
8 titles shall be accredited or placed in a negotiating unit represented
9 by such public employee organizations.
10 If a dispute arises, the office of collective bargaining shall deter-
11 mine which public employee organization is appropriate to represent
12 transferees, other hires, or employees in a new title on the basis of
13 the title's community of interest with titles in the state university of
14 New York and the city university of the city of New York.
15 No existing right or remedy of any character shall be lost or impaired
16 or affected by reason of the adoption of this charter.
17 6. On and after the first of July in the second year next succeeding
18 the date on which this act shall have become a law, officers and employ-
19 ees who become employees of the state pursuant to this act shall become
20 members of the New York state employees' retirement system to the extent
21 permitted or required by the provisions of the retirement and social
22 security law, except that any employee who is a member of the New York
23 city employees' retirement system may elect to continue membership in
24 the New York city employees' retirement system. Any election pursuant to
25 this section shall be made no later than the one hundred twentieth day
26 after the effective date of this section, by filing a written notice
27 thereof with the administrative head of the New York state employees'
28 retirement system and the New York city employees' retirement system
29 and, once made and filed, shall be irrevocable. Upon the retirement of
30 an employee who has made such an election, the calculation of final
31 average salary by the New York city employees' retirement system shall
32 be performed as if the salary earned as a state employee on and after
33 such effective date were earned in New York city employment. In the case
34 of an employee who becomes a member of the New York state employees'
35 retirement system pursuant to this section, the New York city employees'
36 retirement system shall make a transfer of reserves, contributions and
37 credits to the New York state employees' retirement system, in the
38 manner required by section 43 of the retirement and social security law.
39 The comptroller of the city of New York shall certify to the state
40 administrator the amount of money required to be paid by the state of
41 New York for pension costs resulting from elections made pursuant to
42 this section. The comptroller of the state of New York shall pay to the
43 New York city employees' retirement system, upon approval by the state
44 administrator, the amounts so certified by the comptroller of the city
45 of New York. The comptroller of the city of New York shall also certify
46 to the state administrator the amount of money required to be contrib-
47 uted by each of such employees. The comptroller of the state of New
48 York shall be authorized to withhold the contributions of such employees
49 and pay that amount to the New York city employees' retirement system.
50 The amount so certified shall be the same as the amounts required to be
51 contributed for similarly situated city employees by the city of New
52 York and by employees of the city of New York.
53 § 5-002. Subdivision 3 of section 352 of the education law, as amended
54 by chapter 13 of the laws of 2021, is amended to read as follows:
55 3. The state university shall consist of the four university centers
56 at Albany, Binghamton, Buffalo and Stony Brook, the designated colleges
S. 8578 82
1 of arts and sciences at Brockport, Buffalo, Cortland, Fredonia, Geneseo,
2 New Paltz, Old Westbury, Oneonta, Oswego, Plattsburgh, Potsdam [and],
3 Purchase and Staten Island, empire state college, the agricultural and
4 technical colleges at Alfred, Canton, Cobleskill, Delhi, Farmingdale and
5 Morrisville, downstate medical center, upstate medical center, the
6 college of optometry, the college of environmental science and forestry,
7 maritime college, the college of technology at Utica/Rome, the statutory
8 or contract colleges at Cornell university and Alfred university, and
9 such additional universities, colleges and other institutions, facili-
10 ties and research centers as have been or hereafter may be acquired,
11 established, operated or contracted to be operated for the state by the
12 state university trustees.
13 § 5-003. Paragraphs (f) and (g) of subdivision 2 and paragraph (d) of
14 subdivision 3 of section 6204 of the education law, paragraph (f) of
15 subdivision 2 as amended by chapter 306 and paragraph (g) of subdivision
16 2 as added by chapter 305 of the laws of 1979, and paragraph (d) of
17 subdivision 3 as amended by chapter 98 of the laws of 2010, are amended
18 to read as follows:
19 (f) The five trustees appointed by the mayor shall include at least
20 one resident of each of the [five] boroughs of the city of New York.
21 (g) The trustees appointed by the governor shall include at least one
22 resident of each of the [five] boroughs of the city of New York.
23 (d) (i) The board of trustees shall hold at least one public hearing
24 each year in each of the [five] boroughs of the city of New York. The
25 purpose of such hearing shall be to receive testimony and statements
26 from concerned individuals about university issues.
27 (ii) The board of trustees shall fix the time, place, duration and
28 format of each hearing.
29 (iii) At least thirty days notice of the hearing shall be given by the
30 chairperson of the board of trustees to all of the trustees, to all
31 presidents of educational units, to the chair of faculty-senate bodies
32 of educational units, to all student government presidents of educa-
33 tional units, to the borough president, the members of the city council,
34 the members of the board of estimate, the local community boards of the
35 borough where the hearing is to be held and to the media. The notice
36 shall contain the time, place and date of the public hearing. Such
37 information shall be made electronically available on the city universi-
38 ty of New York website. Any such meeting of the board of trustees shall
39 be conducted in accordance with article seven of the public officers
40 law.
41 (iv) At least three trustees shall attend each hearing.
42 § 6-001. The judiciary law is amended by adding a new article 5-C to
43 read as follows:
44 ARTICLE 5-C
45 INTERIM COURT STRUCTURE FOR THE CITY OF STATEN ISLAND
46 Section 178. Declaration of legislative findings and intent.
47 178-a. Continuation of court proceedings.
48 178-b. Judicial transition.
49 178-c. Judiciary jurisdiction.
50 178-d. Judiciary; family court.
51 178-e. Judiciary; criminal court.
52 178-f. Judiciary; civil court.
53 178-g. Judicial transition; structure.
54 178-h. Unified court system; services.
55 178-i. Judicial transition services.
56 178-j. Effect of existing collective bargaining agreements.
S. 8578 83
1 § 178. Declaration of legislative findings and intent. The interim
2 court structure established for the city of Staten Island by this arti-
3 cle is being enacted in the exercise of the legislature's constitutional
4 authority to provide for the creation and organization of units of local
5 government. The legislature finds that it is not possible to create,
6 fund and staff a new and jurisdictionally distinct court structure for
7 the city of Staten Island which would be fully operational on the effec-
8 tive date of such city's incorporation. The legislature also finds that
9 the creation of a jurisdictionally distinct court structure for the city
10 of Staten Island would likely disrupt the orderly administration of
11 justice in such city and the county of Richmond, unnecessarily inconven-
12 ience and confuse litigants, and increase significantly the cost of
13 conducting litigation within such city and county. The purpose of this
14 article is to prevent an interregnum in the operations of the unified
15 court system in connection with the incorporation of the city of Staten
16 Island and its organization as a functional unit of local government. By
17 establishing an interim court structure for such city, the legislature
18 intends to relieve taxpayers and litigants of the expense, inconven-
19 ience, confusion, and delay that would be occasioned by the creation of
20 a new court structure for such city. By preserving the existing trial
21 court structure in the county of Richmond during the period of govern-
22 mental reorganization following the incorporation of the city of Staten
23 Island, the legislature intends that all inhabitants of such county and
24 city will continue to possess the same rights and access to the unified
25 court system that they possessed immediately prior to the incorporation
26 of such city.
27 § 178-a. Continuation of court proceedings. The incorporation of the
28 city of Staten Island shall not alter the jurisdiction of any court
29 existing in the county of Richmond immediately prior to the effective
30 date of such city's incorporation. All courts in such county are contin-
31 ued, and no civil or criminal appeal, action or proceeding pending
32 before any court or any judge or justice on the effective date of incor-
33 poration shall abate or be impaired; and every such appeal, action or
34 proceeding shall be continued in the court in which such appeal, action
35 or proceeding was pending immediately prior to such effective date.
36 § 178-b. Judicial transition. There is established a judicial transi-
37 tion period for the city of Staten Island. Such period shall commence
38 on the effective date of such city's incorporation and terminate on
39 December thirty-first in the fifth year following such incorporation or
40 until the provisions of this article are specifically superseded by
41 state law.
42 § 178-c. Judiciary jurisdiction. During the judicial transition peri-
43 od:
44 (1) the county of Richmond shall be deemed to be a county within the
45 city of New York for all purposes of article six of the state constitu-
46 tion;
47 (2) the county of Richmond shall be deemed to be a county within the
48 city of New York for the purposes of section five hundred two of this
49 chapter;
50 (3) the city of Staten Island shall be deemed to be a part of the city
51 of New York for the purposes of section one hundred fifty-five and arti-
52 cles two-A and two-B of title two of the vehicle and traffic law; and
53 (4) the judge of the surrogate's court in the county of Richmond shall
54 be deemed to be a judge of a surrogate's court within the city of New
55 York for the purposes of subdivision c of section twelve of article six
56 of the state constitution.
S. 8578 84
1 § 178-d. Judiciary; family court. Notwithstanding section one hundred
2 twenty-one of the family court act, the county of Richmond shall be
3 deemed to be a county within the city of New York during the judicial
4 transition period, and there shall be no fewer than three judges of such
5 court who shall be residents of the county of Richmond. A vacancy occur-
6 ring in the office of any such judge during the judicial transition
7 period shall be filled by the mayor of the city of New York upon the
8 recommendation of the mayor of the city of Staten Island consistent with
9 the provisions of section two hundred sixteen-a of the family court act.
10 § 178-e. Judiciary; criminal court. Notwithstanding the provisions of
11 sections twenty and twenty-two of the New York city criminal court act,
12 the city of Staten Island shall be deemed to be part of the city of New
13 York during the judicial transition period, and there shall be no fewer
14 than three judges of such court who shall be residents of the city of
15 Staten Island. A vacancy occurring in the office of such judge during
16 the judicial transition period shall be filled by the mayor of the city
17 of New York upon the recommendation of the mayor of the city of Staten
18 Island consistent with the provisions of section twenty-two of the New
19 York city criminal court act.
20 § 178-f. Judiciary; civil court. Notwithstanding the provisions of
21 section one hundred two-a of the New York city civil court act, the city
22 of Staten Island shall be deemed to be part of the city of New York
23 during the judicial transition period, and there shall be no fewer than
24 three judges of such court who shall be residents of the city of Staten
25 Island. A vacancy occurring in the office of such judge otherwise than
26 by expiration of term during the judicial transition period shall be
27 filled by the mayor of the city of New York upon the recommendation of
28 the mayor of the city of Staten Island consistent with the provisions of
29 section one hundred two-a of the New York city civil court act.
30 § 178-g. Judicial transition; structure. The mayor and the common
31 council of the city of Staten Island, in consultation with the chief
32 administrator of the courts, shall develop a plan for an appropriate
33 court structure for the city of Staten Island following the judicial
34 transition period. Such plan shall include recommendations for the
35 jurisdiction of each court, the number of judges needed, a personnel
36 structure for nonjudicial officers and employees, necessary physical
37 facilities, and a fiscal analysis of each component of the plan. Such
38 plan shall be submitted to the governor, the legislature and to the
39 chief judge of the state, no later than three years following commence-
40 ment of the judicial transition period.
41 § 178-h. Unified court system; services. The chief administrator of
42 the courts is authorized to do all things necessary to continue the
43 efficient operation of the unified court system within the county of
44 Richmond and the city of Staten Island during and after the judicial
45 transition period.
46 § 178-i. Judicial transition services. During the judicial transition
47 period, the mayor and the comptroller of the city of Staten Island and
48 the mayor and the comptroller of the city of New York are authorized to
49 enter into agreements relating to the provision of municipal services
50 for the courts within the city of Staten Island. Such municipal services
51 may include, but shall not be limited to, correctional services.
52 § 178-j. Effect of existing collective bargaining agreements.
53 Notwithstanding any other provision of law:
54 (1) The provisions of this article shall not alter any existing
55 collective negotiating unit of nonjudicial employees or any provision of
S. 8578 85
1 a collective negotiating agreement in effect on the effective date of
2 this article.
3 (2) To the extent permitted by the state constitution, where a judi-
4 cial or nonjudicial officer or employee of the unified court system is
5 required as a condition of his or her continued employment to reside in
6 the city of New York and, on the effective date of this article, he or
7 she resides in the county of Richmond, such officer or employee shall be
8 deemed to reside in the city of New York for so long as he or she
9 remains in his or her position, provided he or she continues to reside
10 in the county or in the city of New York.
11 (3) The nonjudicial personnel of the courts affected by this article
12 in office on the effective date of this article shall, to the extent
13 practicable, be continued without diminution of salaries and with the
14 same status and rights in the courts continued in the county of Rich-
15 mond.
16 § 7-001. Section 31 of the public housing law, as amended by chapter
17 829 of the laws of 1947, is amended to read as follows:
18 § 31. Scope of authority's jurisdiction. The territorial jurisdic-
19 tion of an authority established for a city or village shall be cotermi-
20 nous with the territorial limits of such city or village, and the terri-
21 torial jurisdiction of an authority established for a town shall include
22 all such town, except that such territorial jurisdiction shall not
23 include any territory that lies within the boundaries of any village,
24 whether such village has or has not established an authority. The
25 members of such town authority shall if they consent and when authorized
26 by resolutions of the town board and the village board, act as the
27 authority in and for said village, the same as if it had been created
28 especially for said village.
29 The foregoing notwithstanding, the New York city housing authority,
30 the creation and establishment of which was validated pursuant to
31 section four hundred of this chapter, shall continue to have territorial
32 jurisdiction for the five counties which had constituted parts of the
33 city of New York prior to the establishment of the city of Staten
34 Island.
35 § 7-002. Subdivision 3 of section 402 of the public housing law, as
36 added by chapter 96 of the laws of 2013, is amended to read as follows:
37 3. a. The authority shall consist of seven members appointed by the
38 mayor, one of whom shall be designated by the mayor as [chairman] chair-
39 person removable at his or her pleasure. The term of office of each
40 member other than the [chairman] chairperson shall be three years,
41 provided, however, that the initial appointments of the six members
42 other than the [chairman] chairperson shall be as follows: two shall be
43 appointed for one-year terms, two shall be appointed for two-year terms,
44 and two shall be appointed for three-year terms. The mayor shall file
45 with the commissioner of housing a certificate of appointment of the
46 [chairman] chairperson and of each member. Any member other than the
47 [chairman] chairperson may be removed by the mayor upon filing in the
48 office of the commissioner of citywide administrative services and serv-
49 ing upon the member the reasons therefor. Such document setting forth
50 the reasons shall be made available to the general public, which shall
51 include but not be limited to publishing the reasons on the New York
52 city housing authority's website. Three of such members shall be a
53 tenant of record or an authorized member of the tenant household, in
54 good standing, residing in one of the federal projects owned or operated
55 by the authority, provided, however, that for the initial appointments
56 of the three such members, one shall be among the members initially
S. 8578 86
1 appointed for one-year terms, one shall be among the members initially
2 appointed for two-year terms, and one shall be among the members
3 initially appointed for three-year terms. A vacancy in the office of a
4 member other than the [chairman] chairperson occurring otherwise than by
5 expiration of term shall be filled for the unexpired term. Further, any
6 vacancy in the office of a tenant member shall only be filled by the
7 appointment of an eligible tenant member, and such appointment shall be
8 made within ninety days of such vacancy.
9 b. Notwithstanding paragraph a of this subdivision, upon the estab-
10 lishment of a city of Staten Island and for so long as the New York city
11 housing authority shall have territorial jurisdiction in the city of
12 Staten Island, such authority shall consist of eight members, the eighth
13 of whom shall be appointed by the mayor of Staten Island and shall serve
14 for a five-year term. The mayor of the city of Staten Island shall file
15 with the commissioner of housing and the chairperson of the New York
16 city housing authority a certificate of appointment of such member. Such
17 member may be removed by the mayor of Staten Island for cause after a
18 public hearing. Such member may be of any political party. A vacancy in
19 the office of such member occurring other than by expiration of a term
20 shall be filled for the unexpired term.
21 § 7-003. Section 455 of the education law, as amended by chapter 724
22 of the laws of 1976, is amended to read as follows:
23 § 455. Relationship with the board of education and the city of New
24 York. 1. In order most effectively to carry out its corporate purposes,
25 the fund shall cooperate with the director of management and budget and
26 the board of education of the city of New York in matters relating to
27 land acquisition and capital planning for school buildings and facili-
28 ties. During the course of construction, reconstruction, rehabilitation
29 and improvement of combined occupancy structures the fund shall consult
30 with personnel of such board as the work progresses in matters relating
31 to space requirements, site plans, architectural concept, and substan-
32 tial changes in the plans and specifications therefor, and in matters
33 relating to the original furnishings, equipment, machinery and apparatus
34 needed to furnish and equip the school portion of such buildings and
35 structures, upon the completion of work. The board, on its part, shall
36 perform such functions and services for the fund as may be requested and
37 the fund shall pay to the board, from any monies of the fund available
38 for such purpose, the reasonable cost of such functions and services.
39 2. Notwithstanding subdivision one of this section, upon the estab-
40 lishment of a city of Staten Island, with respect to any fund activities
41 to take place within such city of Staten Island, the fund shall cooper-
42 ate with the mayor and comptroller of such city of Staten Island and the
43 board of education of the city school district of the city of Staten
44 Island in matters relating to land acquisition and capital planning for
45 school buildings and facilities to the same extent as with the respec-
46 tive officials of the city of New York.
47 § 7-004. Paragraph (c) of subdivision 1 of section 462 of the educa-
48 tion law, as separately amended by chapters 724 and 729 of the laws of
49 1976, is amended to read as follows:
50 (c) (i) To assure the continued operation and solvency of the capital
51 reserve fund for the carrying out of the public purposes of this arti-
52 cle, provision is made in paragraph (a) of this subdivision for the
53 accumulation in the capital reserve fund of an amount equal to the maxi-
54 mum amount of principal and interest maturing and becoming due and sink-
55 ing fund payments required to be made in any succeeding fiscal year on
56 all bonds of the fund then outstanding secured by the capital reserve
S. 8578 87
1 fund. In order further to assure such maintenance of the capital
2 reserve fund, the board of education shall annually request from the
3 city of New York and pay over to the fund, for deposit in the capital
4 reserve fund, such sum, if any, as shall be certified by the [chairman]
5 chairperson of the fund to the board, the mayor and the director of
6 management and budget of the city of New York as necessary to restore
7 the capital reserve fund to an amount equal to the maximum amount of
8 principal and interest maturing and becoming due and sinking fund
9 payments required to be made in the next succeeding fiscal year on the
10 bonds of the fund then outstanding secured by the capital reserve fund;
11 provided, however, that such sum shall have been first appropriated by
12 the city to the board or shall otherwise have been made lawfully avail-
13 able to the board for such purpose. The [chairman] chairperson of the
14 fund shall annually, not later than the fifteenth day of February in
15 each year, make and deliver to the board, the mayor and the director of
16 management and budget his or her certificate stating the amount, if any,
17 required to restore the capital reserve fund to the amount aforesaid and
18 the amount so stated, if any, shall be paid to the fund by the board
19 during the then current fiscal year of the fund. In the event of the
20 failure or inability of the board to pay over the stated amount to the
21 fund on or before August first of the same year, the [chairman] chair-
22 person of the fund shall forthwith make and deliver to the comptroller
23 of the state of New York and the mayor and comptroller of the city of
24 Staten Island a further certificate restating the amount so required
25 and, after the comptroller of the state of New York shall have given
26 written notice to the commissioner of education, the mayor and director
27 of management and budget and the mayor and comptroller of the city of
28 Staten Island, such amount shall be paid over to the fund by the comp-
29 troller of the state of New York out of the next payment of state aid
30 apportioned, first, to the city of New York on behalf of the city school
31 district of the city of New York for the support of common schools or
32 such other aid or assistance payable in support of common schools as
33 shall supersede or supplement such state aid for the support of common
34 schools, including federal moneys apportioned by the state to the city
35 of New York on behalf of the city school district for the support of
36 common schools and, thereafter, if such amounts are insufficient, from
37 such similar aid payable to the city of Staten Island. Any amount so
38 paid over to the fund shall be deducted from the corresponding appor-
39 tionment of state education aid or other aid or assistance for education
40 otherwise credited to the board of education for its purposes and shall
41 not obligate the state to make or entitle the city or the board of
42 education or city of Staten Island to receive any additional or
43 increased apportionment or payment of state aid for school purposes.
44 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after
45 the first of January next succeeding the date on which this subparagraph
46 shall have become a law, the fund shall not issue any bonds, notes or
47 other obligations secured by a capital reserve fund into which state aid
48 or other aid otherwise payable to the city of Staten Island is to be
49 deposited pursuant to this paragraph, provided, however, the fund may
50 issue refunding bonds to pay bonds previously issued, which refunding
51 bonds may be so secured if the fund gives reasonable adequate notice of
52 its intention to issue such refunding bonds to the mayor of the city of
53 Staten Island and the comptroller of the city of Staten Island and both
54 such officials are given a reasonable opportunity to participate at the
55 meeting or meetings of the board of the fund at which action is taken to
56 issue such refunding bonds.
S. 8578 88
1 § 7-005. Paragraph (c) of subdivision 3 of section 462 of the educa-
2 tion law, as amended by chapter 474 of the laws of 1996, is amended to
3 read as follows:
4 (c) (i) To assure the continued operation and solvency of the fund for
5 the carrying out of the public purposes of this article, provision is
6 made in paragraph (a) of this subdivision for the accumulation in a debt
7 service reserve fund of an amount equal to the debt service reserve fund
8 requirement on all bonds of the fund then outstanding secured by a debt
9 service or debt service reserve fund. In order further to assure such
10 maintenance of a debt service reserve fund, the board of education shall
11 annually request from the city of New York and pay over to the fund
12 after making the payment required by paragraph (c) of subdivision one of
13 this section for deposit in a debt service reserve fund, such sum, if
14 any, as shall be certified by the [chairman] chairperson of the fund to
15 the board, the mayor and the director of the budget of the city of New
16 York as necessary to restore such debt service reserve fund to an amount
17 equal to the debt service reserve fund requirement for the bonds of the
18 fund secured by such debt service reserve fund; provided, however, that
19 such sum shall have been first appropriated by the city to the board or
20 shall otherwise have been made lawfully available to the board for such
21 purpose. The [chairman] chairperson of the fund shall annually, not
22 later than the fifteenth day of February in each year, make and deliver
23 to the board, the mayor and the director of the budget his or her
24 certificate stating the amount, if any, required to restore a debt
25 service reserve fund to the amount aforesaid and the amount so stated
26 after making the payment required by paragraph (c) of subdivision one of
27 this section if any, shall be paid to the fund by the board during the
28 then current fiscal year of the fund. In the event of the failure or
29 inability of the board to pay over the stated amount to the fund on or
30 before August first of the same year, the [chairman] chairperson of the
31 fund shall forthwith make and deliver to the comptroller of the state of
32 New York and the mayor and comptroller of the city of Staten Island a
33 further certificate restating the amount so required and, after the
34 comptroller of the state of New York shall have given written notice to
35 the commissioner, the mayor and director of the budget and the mayor and
36 comptroller of the city of Staten Island, such amount after making the
37 payment required by paragraph (c) of subdivision one of this section
38 shall be paid over to the fund by the comptroller of the state of New
39 York out of the next payment of state aid apportioned, first, to the
40 city of New York on behalf of the city school district of the city of
41 New York for the support of common schools or such other aid or assist-
42 ance payable in support of common schools as shall supercede or supple-
43 ment such state aid for the support of common schools, including federal
44 moneys apportioned by the state to the city of New York on behalf of the
45 city school district for the support of common schools and, thereafter,
46 if such amounts are insufficient, from such similar aid payable to the
47 city of Staten Island. Any amount so paid over to the fund under para-
48 graph (c) of subdivision one of this section shall be deducted from the
49 corresponding apportionment of state education aid or other aid or
50 assistance for education otherwise credited to the board of education or
51 the city of Staten Island for its purposes and shall not obligate the
52 state to make or entitle the city or the board of education or the city
53 of Staten Island to receive any additional or increased apportionment or
54 payment of state aid for school purposes.
55 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after
56 the first of January next succeeding the date on which this subparagraph
S. 8578 89
1 shall have become a law, the fund shall not issue any bonds, notes or
2 other obligations secured by a debt service reserve fund into which
3 state aid or other aid otherwise payable to the city of Staten Island is
4 to be deposited pursuant to this paragraph, provided, however, the fund
5 may issue refunding bonds to pay bonds previously issued, which refund-
6 ing bonds may be so secured if the fund gives reasonable adequate notice
7 of its intention to issue such refunding bonds to the mayor of the city
8 of Staten Island and the comptroller of the city of Staten Island and
9 both such officials are given a reasonable opportunity to participate at
10 the meeting or meetings of the board of the fund at which action is
11 taken to issue such refunding bonds.
12 § 7-006. Subdivision 1 of section 1045-c of the public authorities
13 law, as added by chapter 513 of the laws of 1984, is amended to read as
14 follows:
15 1. A corporation known as the New York city municipal water finance
16 authority is hereby created for public purposes and charged with the
17 duties and having the powers provided in this title. The authority shall
18 be a body corporate and politic constituting a public benefit corpo-
19 ration. It shall be administered by a board of directors consisting of
20 [seven] eight members as follows: the commissioner of environmental
21 protection of the city, the state commissioner of environmental conser-
22 vation, the director of management and budget of the city, the commis-
23 sioner of finance of the city, two public members to be appointed by the
24 mayor, one public member to be appointed by the mayor of Staten Island
25 and one public member to be appointed by the governor. One public
26 member appointed by the mayor shall serve for a term of one year, one
27 public member appointed by the mayor shall serve for a term of two
28 years, and the public [member] members appointed by the governor and
29 mayor of Staten Island shall serve for a term of two years from January
30 first next succeeding the date of their appointment. Their successors
31 shall serve for terms of two years each. Members shall continue in
32 office until their successors have been appointed and qualified. The
33 mayor, mayor of Staten Island or the governor shall fill any vacancy
34 which may occur by reason of death, resignation or otherwise in a manner
35 consistent with the original appointment. A public member may be
36 removed by the mayor, mayor of Staten Island, or the governor, whichever
37 appointed him or her, for cause, but not without an opportunity to be
38 heard in person or by counsel, in his or her defense, upon not less than
39 ten days' notice. The mayor shall select a [chairman] chairperson from
40 among the directors appointed by him or her who shall serve in such
41 capacity at his or her pleasure. The [chairman] chairperson shall
42 preside over all meetings of the board of directors and shall have such
43 other duties as may be prescribed by the board.
44 § 7-007. Subdivision 2 of section 1045-f of the public authorities
45 law, as added by chapter 513 of the laws of 1984, is amended to read as
46 follows:
47 2. The water board shall consist of seven members, six of which shall
48 be appointed by the mayor and, the seventh of which shall be appointed
49 by the mayor of Staten Island. The mayor of Staten Island shall fill
50 the earlier of the first expiration of a term or the first vacancy
51 occurring after the date of establishment of the city of Staten Island
52 and any successor thereto. Terms of office of the members shall be two
53 years except that the terms of four of the board members first appointed
54 shall be one year. At least one member shall have experience in the
55 science of water resource development. No member shall be a director of
56 the authority. The mayor shall appoint a [chairman] chairperson from
S. 8578 90
1 among the members of the board. All members shall continue to hold
2 office until their successors are appointed and qualified. Vacancies
3 shall be filled in the manner provided for original appointments. Vacan-
4 cies, occurring otherwise than by expiration of term of office, shall be
5 filled in the same manner as original appointments for the unexpired
6 terms.
7 § 7-008. Subdivision 5 of section 1045-f of the public authorities
8 law, as added by chapter 513 of the laws of 1984, is amended to read as
9 follows:
10 5. The appointing mayor may remove any member for inefficiency,
11 neglect of duty or misconduct in office after giving such member a copy
12 of the charges against such member and an opportunity to be heard and
13 defended, in person or by counsel, upon not less than ten days' notice.
14 If any member shall be so removed, the appointing mayor shall file in
15 the office of the clerk of the city a complete statement of charges
16 against such member, and the appointing mayor's findings thereon,
17 together with a complete record of the proceedings.
18 § 7-009. Paragraphs e and f of subdivision 1 of section 656 of the
19 private housing finance law, as amended by chapter 174 of the laws of
20 1992, are amended to read as follows:
21 e. (i) To assure the continued operation and solvency of the corpo-
22 ration for the carrying out of its corporate purposes, provision is made
23 in paragraph a of this subdivision for the accumulation in each capital
24 reserve fund of an amount equal to the maximum capital reserve fund
25 requirement. In order further to assure such maintenance of each capital
26 reserve fund, there shall be paid by the city to the corporation for
27 deposit in each capital reserve fund on or before the first day of
28 April, in each year, such amount, if any, needed for the purpose of
29 restoring each such capital reserve fund to the maximum capital reserve
30 fund requirement for such fund, as shall be certified by the chairperson
31 of the corporation to the mayor and the director of management and budg-
32 et on or before the first day of December next preceding; provided that
33 any such amount shall have been first appropriated by or on behalf of
34 the city for such purpose or shall have been otherwise made available
35 from the proceeds of notes or bonds of the city authorized and issued
36 pursuant to the local finance law for such purpose, which is hereby
37 determined to be a specific object or purpose having a period of proba-
38 ble usefulness of five years. In the event of the failure or inability
39 of the city to pay over to the corporation, in full, on or before such
40 first day of April the amount so certified the chairperson of the corpo-
41 ration shall forthwith certify to the comptroller of the state of New
42 York the amount remaining unpaid and thereupon the state comptroller
43 shall pay to the corporation, out of the first moneys available for the
44 next succeeding payments of [(i)] (A) state aid apportioned to the city
45 of New York and, to the extent the amounts available therefor are insuf-
46 ficient, state aid apportioned to the city of Staten Island, as per
47 capita aid for the support of local government pursuant to section
48 fifty-four of the state finance law or [(ii)] (B) such other aid or
49 assistance payable by the state to the city and to the extent the
50 amounts available therefor are insufficient, such aid or assistance
51 payable by the state to the city of Staten Island and not otherwise
52 allocated as shall supersede or supplement such state per capita aid,
53 including federal moneys apportioned to the city and, to the extent the
54 amounts available therefor are insufficient, such moneys apportioned to
55 the city of Staten Island by the state, such amount remaining unpaid,
56 after giving written notice to the director of management and budget of
S. 8578 91
1 each amount to be paid out of such state aid, until the amount in each
2 such capital reserve fund is restored to the maximum capital reserve
3 fund requirement thereof; provided, however, that prior to the issuance
4 of any notes or bonds of the corporation pursuant to this article the
5 city shall have enacted a local law authorizing payments from such
6 sources into such a fund so long as any notes or bonds of the corpo-
7 ration shall be outstanding and unpaid, and provided further that
8 moneys, if any, payable to the city university construction fund pursu-
9 ant to the provisions of the city university construction fund act shall
10 be paid, in full, to such fund, prior to any payments therefrom to the
11 corporation. Any amount so paid over to the corporation shall be
12 deducted from the corresponding apportionment of such per capita state
13 aid otherwise payable to the city of New York or the city of Staten
14 Island, as applicable, and shall not obligate the state to make nor
15 entitle the city or the city of Staten Island to receive any additional
16 apportionment or payment of per capita state aid. All amounts paid over
17 to the corporation as provided in this [paragraph] subparagraph, includ-
18 ing amounts paid by the state comptroller out of payments of such state
19 aid, shall constitute and be accounted for as non-interest bearing loans
20 by the city or the city of Staten Island, as applicable to the corpo-
21 ration and, subject, subordinate and junior to the rights of the holders
22 of any notes or bonds of the corporation theretofore or thereafter
23 issued, shall be repaid to the city from [(i)] (A) moneys in such capi-
24 tal reserve fund in excess of the maximum capital reserve fund require-
25 ment thereof or [(ii)] (B) any moneys of the corporation not required
26 for any other of its corporate purposes.
27 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after
28 the first of January next succeeding the date on which this subparagraph
29 shall have become a law, the corporation shall not issue any bonds,
30 notes or other obligations secured by a capital reserve fund into which
31 per capita state aid or other aid otherwise payable to the city of
32 Staten Island is to be deposited pursuant to this subparagraph,
33 provided, however, the corporation may issue refunding bonds to pay
34 bonds previously issued, which refunding bonds may be so secured if the
35 corporation gives reasonable adequate notice of its intention to issue
36 such refunding bonds to the mayor of the city of Staten Island and the
37 comptroller of the city of Staten Island and both such officials are
38 given a reasonable opportunity to participate at the meeting or meetings
39 of the board of the corporation at which action is taken to issue such
40 refunding bonds.
41 f. In the event the chairperson of the corporation shall certify to
42 the mayor and director of management and budget or to the state comp-
43 troller any amount necessary to restore a capital reserve fund to the
44 maximum capital reserve fund requirement thereof pursuant to subdivision
45 e of this section, the chairperson shall simultaneously deliver to the
46 mayor of the city of Staten Island and the comptroller of the city of
47 Staten Island and additionally to such persons a statement of the cause
48 or causes of such capital reserve fund deficiency and the measures to be
49 taken by the corporation or the department of housing preservation and
50 development to insure repayment of any loans made by the city or the
51 city of Staten Island to the corporation, including amounts paid by the
52 state comptroller out of payments of state aid, for the purpose of
53 restoring such capital reserve fund to the maximum capital reserve fund
54 requirement thereof and to prevent the recurrence of any such deficien-
55 cy.
S. 8578 92
1 § 7-010. Subdivision 4 of section 1680-b of the public authorities
2 law, as amended by chapter 62 of the laws of 1988, is amended to read as
3 follows:
4 4. In the event that a participating municipality fails to pay to the
5 authority when due all or part of the rentals and other payments payable
6 pursuant to any lease, sublease or agreement with the authority, the
7 chairman or another officer of the authority shall certify at the times
8 provided in this subdivision the amount of rentals and other payments
9 then due from such participating municipality and unpaid. The state
10 comptroller, upon receipt of such certificate, shall deduct the amount
11 of such rentals and other payments as remains unpaid to the authority
12 first from the aid payable to such participating municipality from the
13 court facilities incentive aid fund established by section ninety-four
14 of the state finance law and, then, from the next succeeding payments of
15 state aid apportioned to such participating municipality, as revenue
16 sharing, per capita aid, and any other aid pursuant to section fifty-
17 four of the state finance law and, then, from the next succeeding
18 payments of state aid for any local governmental administrative costs
19 that are reimbursable to the participating municipality pursuant to
20 state law and, then, from the next succeeding payments of state aid from
21 moneys appropriated pursuant to section six hundred eight of the public
22 health law and pursuant to section ten-c of the highway law; provided,
23 however, that the right of the authority to the payment of any amount
24 deducted by the state comptroller pursuant to this section from per
25 capita aid apportioned to the city of New York or, to the extent insuf-
26 ficient, the city of Staten Island shall be subject and subordinate to
27 the rights of the city university construction fund pursuant to section
28 sixty-two hundred seventy-nine of the education law, the New York city
29 housing development corporation pursuant to section six hundred fifty-
30 six of the private housing finance law, the trustees of the police
31 pension fund pursuant to paragraph e of subdivision seven of section
32 fifty-four of the state finance law, and the municipal assistance corpo-
33 ration for the city of New York pursuant to section three thousand thir-
34 ty-six-a of this chapter and subdivision one of section ninety-two-e of
35 the state finance law. In order to insure that the amount of rentals
36 and other payments due and unpaid by a participating municipality are
37 paid, the authority on or within thirty days prior to January twenty-
38 fifth, April twenty-fifth, July twenty-fifth and October twenty-fifth of
39 each year shall certify to the state comptroller the amount of rentals
40 and other payments then due and unpaid by each participating munici-
41 pality pursuant to any lease, sublease or other agreement. The amount
42 required to be deducted by the state comptroller pursuant to this subdi-
43 vision shall be deducted from such aid, whether or not the state aid
44 from which such deduction is to be made is then payable to the partic-
45 ipating municipality, and thereupon paid to the authority. The amount of
46 state aid payable to such participating municipality shall be reduced by
47 the amount deducted by the state comptroller notwithstanding the amount
48 appropriated and apportioned by the state to such participating munici-
49 pality, and the state shall not be obligated to make and the participat-
50 ing municipality shall not be entitled to receive any additional appor-
51 tionment or payment of such state aid. Nothing shall be construed to
52 create an obligation upon the state to appropriate moneys, to preclude
53 the state from reducing the amount of moneys appropriated or level of
54 assistance provided, or to preclude the state from altering or modifying
55 the manner in which it provides for or provides assistance.
S. 8578 93
1 § 7-011. Section 1727 of the public authorities law is amended by
2 adding a new subdivision 9 to read as follows:
3 9. Notwithstanding the provisions of this section or any other
4 provision of law to the contrary, the authority shall continue its
5 corporate existence regardless of the alteration of the composition of
6 the board of education of the city school district of the city of New
7 York caused by the incorporation of the city of Staten Island and the
8 establishment of the city school district of the city of Staten Island.
9 § 8-001. Subdivision 1 of section 23 of the executive law, as amended
10 by chapter 385 of the laws of 2017, is amended to read as follows:
11 1. Each county, except Richmond county and those counties contained
12 within the city of New York, and each city with a population of one
13 million or more, shall prepare a comprehensive emergency management
14 plan. Each city with a population of less than one million, town and
15 village is authorized to prepare a comprehensive emergency management
16 plan. The disaster preparedness commission shall provide assistance and
17 advice for the development of such plans. Each city with a population of
18 less than one million, town and village plan shall be coordinated with
19 the county plan.
20 § 8-002. Subdivision 1 of section 101-b of the executive law, as
21 added by chapter 1214 of the laws of 1971, is amended to read as
22 follows:
23 1. Definitions. As used in this section,
24 a. "Agency" means any state board, bureau, commission, department,
25 division or officer authorized by law to adopt rules.
26 b. "Rule" means the whole or part of each agency statement of general
27 applicability or regulation or code that implements or applies law,
28 including the amendment, suspension or repeal thereof.
29 c. "Municipal corporation" means [a] any county outside the [city]
30 cities of New York and Staten Island, a city, a town, a village or a
31 school district.
32 d. "Governing body" means:
33 (1) In a county, a board of supervisors, county legislature or other
34 body vested by its charter, other law or other valid enactment with
35 jurisdiction to enact local laws;
36 (2) In a city, the board of aldermen, a common council, commission or
37 other body vested by its charter or other law with jurisdiction to enact
38 ordinances or local laws;
39 (3) In a town, the town board;
40 (4) In a village, the board of trustees; and
41 (5) In a school district, the board of education, board of trustees or
42 sole trustee.
43 § 8-003. Intentionally omitted.
44 § 8-004. Subdivisions 1, 2, 3, 4 and 6 of section 246 of the executive
45 law, subdivisions 1, 2 and 3 as amended by section 10 of part D of chap-
46 ter 56 of the laws of 2010, subdivision 4 as amended by section 102 of
47 part WWW of chapter 59 of the laws of 2017, and subdivision 6 as added
48 by chapter 479 of the laws of 1970 and as renumbered by chapter 813 of
49 the laws of 1985, are amended to read as follows:
50 1. The program of state aid to county probation services shall be
51 administered by the division of criminal justice services with the
52 advice of the state probation commission and the director of the office
53 of probation and correctional alternatives. Funds appropriated to the
54 division for distribution as state aid to county probation services
55 [and], to the probation services of New York city and to the probation
56 services of the city of Staten Island shall be distributed by the divi-
S. 8578 94
1 sion in accordance with rules and regulations adopted by the commission-
2 er of the division of criminal justice services after consultation with
3 the state probation commission and the director of the office of
4 probation and correctional alternatives.
5 2. State aid shall be granted to the city of New York, the city of
6 Staten Island and the respective counties outside [the city of New York]
7 such cities for expenditures to be incurred by the county or [city] such
8 cities in maintaining and improving local probation services subject to
9 amounts appropriated for this purpose. State aid grants shall not be
10 used for expenditures for capital additions or improvements, or for debt
11 service costs for capital improvements.
12 State aid shall be granted by the commissioner of the division of
13 criminal justice services after consultation with the state probation
14 commission and the director of the office of probation and correctional
15 alternatives, provided the respective counties or the city of Staten
16 Island or the city of New York conform to standards relating to the
17 administration of probation services as adopted by the commissioner of
18 the division of criminal justice services after consultation with the
19 state probation commission and the director of the office of probation
20 and correctional alternatives.
21 3. Applications from counties or the city of Staten Island or the city
22 of New York for state aid under this section shall be made by filing
23 with the division of criminal justice services, a detailed plan, includ-
24 ing cost estimates covering probation services for the fiscal year or
25 portion thereof for which aid is requested. Included in such estimates
26 shall be clerical costs and maintenance and operation costs as well as
27 salaries of probation personnel and such other pertinent information as
28 the commissioner of the division of criminal justice services may
29 require. Items for which state aid is requested under this section shall
30 be duly designated in the estimates submitted. The commissioner of the
31 division of criminal justice services, after consultation with the state
32 probation commission and the director of the office of probation and
33 correctional alternatives, shall approve such plan if it conforms to
34 standards relating to the administration of probation services as speci-
35 fied in the rules adopted by him or her.
36 4. An approved plan and compliance with standards relating to the
37 administration of probation services promulgated by the commissioner of
38 the division of criminal justice services shall be a prerequisite to
39 eligibility for state aid.
40 The commissioner of the division of criminal justice services may take
41 into consideration granting additional state aid from an appropriation
42 made for state aid for county probation services for counties or the
43 city of Staten Island or the city of New York when a county or the city
44 of Staten Island or the city of New York demonstrates that additional
45 probation services were dedicated to intensive supervision programs and
46 intensive programs for sex offenders. The commissioner shall grant addi-
47 tional state aid from an appropriation dedicated to juvenile risk inter-
48 vention services coordination by probation departments which shall
49 include, but not be limited to, probation services performed under arti-
50 cle three of the family court act. The administration of such additional
51 grants shall be made according to rules and regulations promulgated by
52 the commissioner of the division of criminal justice services. Each
53 county and the city of Staten Island and the city of New York shall
54 certify the total amount collected pursuant to section two hundred
55 fifty-seven-c of this chapter. The commissioner of the division of crim-
56 inal justice services shall thereupon certify to the comptroller for
S. 8578 95
1 payment by the state out of funds appropriated for that purpose, the
2 amount to which the county or the city of Staten Island or the city of
3 New York shall be entitled under this section. The commissioner shall,
4 subject to an appropriation made available for such purpose, establish
5 and provide funding to probation departments for a continuum of
6 evidence-based intervention services for youth alleged or adjudicated
7 juvenile delinquents pursuant to article three of the family court act
8 or for eligible youth before or sentenced under the youth part in
9 accordance with the criminal procedure law. Such additional state aid
10 shall be made in an amount necessary to pay one hundred percent of the
11 expenditures for evidence-based practices and juvenile risk and
12 evidence-based intervention services provided to youth sixteen years of
13 age or older when such services would not otherwise have been provided
14 absent the provisions of [a] part WWW of chapter fifty-nine of the laws
15 of two thousand seventeen [that increased the age of juvenile jurisdic-
16 tion].
17 6. The director, after consultation with the state probation commis-
18 sion, may authorize or require the comptroller to withhold the payment
19 of state aid to any county, or the city of Staten Island or the city of
20 New York, in the event that such county, or the city of Staten Island or
21 the city of New York, (a) fails to conform to standards of probation
22 administration as formulated by the director pursuant to this section,
23 (b) discontinues or fails to follow an approved plan, or (c) fails to
24 enforce in a satisfactory manner rules promulgated pursuant to this
25 section, or laws now in effect or hereafter adopted which relate in any
26 manner to the administration of probation services.
27 § 8-004-a. The second undesignated paragraph of subdivision 4 of
28 section 246 of the executive law, as amended by section 103 of part WWW
29 of chapter 59 of the laws of 2017, is amended to read as follows:
30 The commissioner of the division of criminal justice services may take
31 into consideration granting additional state aid from an appropriation
32 made for state aid for county probation services for counties or the
33 city of Staten Island or the city of New York when a county or the city
34 of Staten Island or the city of New York demonstrates that additional
35 probation services were dedicated to intensive supervision programs and
36 intensive programs for sex offenders. The commissioner shall grant addi-
37 tional state aid from an appropriation dedicated to juvenile risk inter-
38 vention services coordination by probation departments which shall
39 include, but not be limited to, probation services performed under arti-
40 cle three of the family court act. The administration of such additional
41 grants shall be made according to rules and regulations promulgated by
42 the commissioner of the division of criminal justice services. Each
43 county and the city of Staten Island and the city of New York shall
44 certify the total amount collected pursuant to section two hundred
45 fifty-seven-c of this chapter. The commissioner of the division of crim-
46 inal justice services shall thereupon certify to the comptroller for
47 payment by the state out of funds appropriated for that purpose, the
48 amount to which the county or the city if Staten Island or the city of
49 New York shall be entitled under this section. The commissioner shall,
50 subject to an appropriation made available for such purpose, establish
51 and provide funding to probation departments for a continuum of
52 evidence-based intervention services for youth alleged or adjudicated
53 juvenile delinquents pursuant to article three of the family court act
54 or for eligible youth before or sentenced under the youth part in
55 accordance with the criminal procedure law.
S. 8578 96
1 § 8-005. Subdivision 1 of section 255 of the executive law, as added
2 by chapter 603 of the laws of 1973, is amended to read as follows:
3 1. There is hereby created a department of probation in and for the
4 city of New York to have charge of all probation work in the supreme,
5 family and criminal courts in the counties of Bronx, Kings, New York[,]
6 and Queens [and Richmond].
7 § 8-006. The executive law is amended by adding a new section 255-a to
8 read as follows:
9 § 255-a. Probation in the city of Staten Island. 1. There is hereby
10 created a department of probation in and for the city of Staten Island
11 to have charge of all probation work in the supreme, family and other
12 criminal courts in the county of Richmond.
13 2. The head of such department shall be a director of probation
14 appointed by the mayor of the city of Staten Island to serve during the
15 pleasure of the mayor. The director shall have charge of the adminis-
16 tration of the department and shall be responsible for carrying out the
17 functions of the department including intake, investigation, super-
18 vision, conciliation and pre-disposition social treatment in cases
19 coming to the courts referred to in this section. The director may,
20 from time to time, create, abolish, transfer and consolidate bureaus and
21 other units within the department as he or she may determine necessary
22 for efficient operation thereof. The director also shall have the power
23 to appoint and remove such deputy directors, assistants, probation offi-
24 cers and other employees as may be needed for the performance of the
25 duties of the department and may prescribe their duties and fix their
26 compensation, within appropriations made available therefor by the city
27 of Staten Island and subject to all applicable civil service laws and
28 rules and regulations. The director may, in his or her discretion,
29 appoint volunteer probation officers, when necessary, provided they have
30 the qualifications required of salaried officers, but no such volunteer
31 probation officer shall receive pay from the public funds for his or her
32 services. The city of Staten Island shall make the necessary appropri-
33 ation for the salaries of the director and of all officers and employees
34 of the department as referred to herein, as well as for the expenses
35 actually and necessarily incurred by such director, officers and employ-
36 ees in the performance of their duties.
37 3. The director shall discharge his or her powers and responsibil-
38 ities in accordance with all laws and rules applicable to probation and
39 with the general rules regulating methods and procedure in the adminis-
40 tration of probation as adopted from time to time pursuant to section
41 two hundred forty-three of this chapter. The director may adopt depart-
42 mental rules, not inconsistent with law or the aforesaid general rules,
43 to regulate the policies, programs, standards, and methods of procedure
44 in relation to probation and the powers and duties of officers and
45 employees as in the director's judgment are deemed proper.
46 4. Notwithstanding any other provision of law or of the Staten Island
47 city charter or administrative code, any duly appointed officer or
48 employee of such probation department may reside in any county within
49 the state.
50 § 8-007. Subdivisions 1 and 4 of section 257-c of the executive law,
51 as added by chapter 55 of the laws of 1992, are amended to read as
52 follows:
53 1. Notwithstanding any other provision of law, every county, the city
54 of Staten Island and the city of New York, may adopt a local law requir-
55 ing individuals currently serving or who shall be sentenced to a period
56 of probation upon conviction of any crime under article thirty-one of
S. 8578 97
1 the vehicle and traffic law to pay to the local probation department
2 with the responsibility of supervising the probationer an administrative
3 fee of thirty dollars per month. The department shall waive all or part
4 of such fee where, because of the indigence of the offender, the payment
5 of said surcharge would work an unreasonable hardship on the person
6 convicted, his or her immediate family, or any other person who is
7 dependent on such person for financial support.
8 4. In the event of non-payment of any fees which have not been waived
9 by the local probation department, the county, the city of Staten Island
10 or the city of New York may seek to enforce payment in any manner
11 permitted by law for enforcement of a debt.
12 § 8-008. Subdivision 3 of section 262 of the executive law, as amended
13 by section 28 of part A of chapter 56 of the laws of 2010, is amended to
14 read as follows:
15 3. Upon approval by the board, by a majority of its members, any coun-
16 ty outside the [city] cities of New York and Staten Island acting
17 through its county executive, and upon approval of the local legislative
18 body, may submit a proposed service plan to the office for approval. The
19 city of New York acting through the mayor and upon approval by the board
20 of estimate and the city of Staten Island acting through the mayor and
21 upon approval by the common council may submit a proposed service plan
22 to the office for approval.
23 § 8-009. Subdivisions 1 and 2 of section 266 of the executive law, as
24 added by chapter 338 of the laws of 1989, are amended to read as
25 follows:
26 1. Counties and the [city] cities of New York and Staten Island may
27 submit approved amendments for alcohol and substance abuse programs as
28 defined in this article as part of or in addition to an approved plan.
29 In accordance with this article, nothing in this section shall prohibit
30 the development of regional alcohol and substance abuse programs by two
31 or more counties, the city of Staten Island or cities with a population
32 of one million or more.
33 2. Such approved amendments shall include a statement by the county or
34 the city of New York or the city of Staten Island indicating such
35 municipality's understanding that funding for eligible alcohol and
36 substance abuse programs shall be in accordance with subdivision four of
37 this section and the municipality's commitment to meet the funding
38 requirements as set forth in such subdivision.
39 § 8-010. Section 267 of the executive law, as amended by section 33 of
40 part A of chapter 56 of the laws of 2010, is amended to read as follows:
41 § 267. Office reports. The office shall submit to the governor, the
42 temporary president of the senate, the speaker of the assembly, the
43 [chairman] chairperson of the senate crime and correction committee and
44 the [chairman] chairperson of the assembly committee on codes by October
45 first of each year its evaluation and assessment of this alternatives
46 planning and programming effort by the counties. Such report shall
47 include, but not be limited to, the status of the development of such
48 plans, the approval and implementation of such plans, the success of the
49 programs, in terms of their utilization, effect on jail population,
50 results of the analyses provided counties and the [city] cities of New
51 York and Staten Island on the relationship between alcohol, drugs and
52 crime and the success of the eligible alcohol and substance abuse
53 programs and sentencing decisions together with any recommendations with
54 respect to the proper operation or improvement of planning and implemen-
55 tation of effective alternatives to detention and alternatives to incar-
56 ceration programs in counties.
S. 8578 98
1 § 8-011. Subdivisions 1 and 7 of section 530 of the executive law,
2 subdivision 1 as amended by section 4 of subpart B of part Q of chapter
3 58 of the laws of 2011, subdivision 7 as amended by section 21 of part K
4 of chapter 56 of the laws of 2019, are amended to read as follows:
5 1. Definitions. As used in this section, the term "municipality" shall
6 mean a county, the city of Staten Island or a city having a population
7 of one million or more.
8 7. The agency administering detention for each county and the city of
9 Staten Island and the city of New York shall submit to the office of
10 children and family services, at such times and in such form and manner
11 and containing such information as required by the office of children
12 and family services, an annual report on youth remanded pursuant to
13 article three or seven of the family court act who are detained during
14 each calendar year including, commencing January first, two thousand
15 twelve, the risk level of each detained youth as assessed by a detention
16 risk assessment instrument approved by the office of children and family
17 services provided, however, that the report due January first, two thou-
18 sand twenty-one and thereafter shall not be required to contain any
19 information on youth who are subject to article seven of the family
20 court act. The office may require that such data on detention use be
21 submitted to the office electronically. Such report shall include, but
22 not be limited to, the reason for the court's determination in accord-
23 ance with section 320.5 or seven hundred thirty-nine of the family court
24 act to detain the youth; the offense or offenses with which the youth is
25 charged; and all other reasons why the youth remains detained. The
26 office shall submit a compilation of all the separate reports to the
27 governor and the legislature.
28 § 8-012. Subdivisions 1, 2 and 4 of section 214 of the elder law are
29 amended to read as follows:
30 1. Definitions. As used in this section, the following words shall
31 have the following meanings:
32 (a) "Designated agency" shall mean an agency which is designated by
33 the chief executive officer of the county if there be one, or otherwise
34 the governing board of such county, or the chief executive officer of
35 the city of New York or the mayor of the city of Staten Island, or the
36 governing board of an Indian tribal council; which is either a unit of
37 county government or the city of New York or the city of Staten Island
38 or an Indian tribal organization or a private non-profit agency, and
39 which is the area agency on aging created pursuant to the federal older
40 Americans act of 1965.
41 (b) "Elderly person" shall mean a person sixty years of age or older.
42 (c) "County" shall mean a county, as defined in section three of the
43 county law, except that the city of New York shall be considered one
44 county.
45 (d) "Base year expenditures" and "base year services" shall mean the
46 level of expenditures and services in the year prior to the first year
47 for which a county plan is submitted or in such county's two thousand
48 five fiscal year, whichever is greater.
49 (e) "Community services" shall mean services for elderly persons which
50 are provided by a public or governmental agency or non-profit agency,
51 and which are provided in the home of an elderly person or in community
52 settings such as senior citizens centers, housing projects, or agency
53 offices. Such services shall not include any services provided pursuant
54 to the public health law other than home care services.
55 (f) "Community service projects" shall mean community services
56 financed pursuant to paragraph (b) of subdivision four of this section.
S. 8578 99
1 (g) "County plan" shall mean a plan for community services prepared by
2 a county pursuant to this section.
3 (h) "Non-profit agency" shall mean a corporation organized or existing
4 pursuant to the not-for-profit corporation law.
5 (i) "Program year" shall mean the period from April first through
6 March thirty-first of the following calendar year.
7 (j) "First program year" for a county shall mean the initial year for
8 which the county has received approval for its county plan.
9 2. County plans for improving the availability of community services
10 to the elderly. (a) Counties with a designated agency are required to
11 submit a county plan for a two-, three-, or four-year period determined
12 by the director, with an annual update containing a budget request for
13 the forthcoming program year and such other information as shall be
14 required by the director, for improving the delivery of community
15 services for elderly persons in the format prescribed by the director.
16 The plan for the city of New York or the plan for the city of Staten
17 Island shall specifically address the needs of each county within such
18 city. Such plan shall be a comprehensive description of the manner in
19 which the county intends to address the needs of elderly persons living
20 in the county through improved coordination of existing community
21 services and by the development of any new or expanded community service
22 projects which will improve the delivery of services to the elderly.
23 Such plan shall contain:
24 (1) a statement of goals and objectives for addressing the needs of
25 elderly persons in the county, an assessment of the needs of elderly
26 persons residing in the county, a description of public and private
27 resources that currently provide community services to elderly persons
28 within the county, a description of intended actions to consolidate and
29 coordinate existing community services administered by county govern-
30 ment, a description of the intended actions to coordinate congregate
31 services programs for the elderly operated within the county pursuant to
32 section two hundred seventeen of this title with other community
33 services for the elderly, a description of the means to coordinate other
34 community services for elderly persons in the county with those adminis-
35 tered by county government, and a statement of the priorities for the
36 provision of community services during the program period covered by
37 such plan;
38 (2) an identification of community service projects to be developed to
39 improve the delivery of services, a budget request for approval for the
40 forthcoming year which individually identifies each community service
41 project to be funded pursuant to paragraph (b) of subdivision four of
42 this section, letters of comment from the appropriate local agencies on
43 the relationship and expected impact of the proposed community service
44 projects, assurances that community service projects will provide
45 services to those most in need, an indication of fee schedules by which
46 elderly persons participating in community service projects may contrib-
47 ute to the costs of such projects, and an indication of how the effec-
48 tiveness of such community service projects will be evaluated;
49 (3) an identification of planning, coordination, and administrative
50 activities necessary to achieve the goals and objectives of the plan,
51 together with a budget request for such activities for approval for the
52 forthcoming year to be funded pursuant to paragraph (a) of subdivision
53 four of this section, and assurances by the county that it will comply
54 with the requirements of state and federal law; and
55 (4) such other components as may be required pursuant to regulations
56 promulgated by the director.
S. 8578 100
1 (b) Such county plan for community services or annual update shall be
2 prepared by the designated agency and approved by the chief executive
3 officer of the county, if there be one, or otherwise the governing board
4 of the county, or the chief executive of the city of New York or the
5 mayor of the city of Staten Island and submitted to the director no
6 later than ninety days prior to the beginning of the program period
7 covered by such plan or annual update. Prior to a submission of a coun-
8 ty plan or annual update to the director for approval, the designated
9 agency shall conduct such public hearings as may be required by regu-
10 lations of the director, provided that there shall be at least one such
11 hearing, and one in each county contained within the city of New York or
12 the city of Staten Island.
13 (c) The director shall review such county plan and may approve or
14 disapprove such plan, or any part, program, or project within such plan,
15 and shall propose such modifications and conditions as are deemed appro-
16 priate and necessary. Compliance with paragraphs (a) and (b) of this
17 subdivision shall be the basis for approval of a county plan. The direc-
18 tor shall establish by regulation the dates for notifying the designated
19 agency of approval or disapproval of a county plan. In the event the
20 director shall disapprove the proposed county plan, the county submit-
21 ting such application shall be afforded an opportunity for an adjudica-
22 tory hearing, as prescribed by article three of the state administrative
23 procedure act.
24 (d) Notwithstanding any provision of this section, nothing contained
25 in this section shall give the director or a designated agency any
26 administrative, fiscal, supervisory, or other authority whatsoever over
27 any plans, programs or expenditures authorized pursuant to titles eigh-
28 teen, nineteen and twenty of the federal social security act, or over
29 any unit of state or local government.
30 (e) Counties with a designated agency may submit to the director a
31 letter of intent, in the form and by the date prescribed by the director
32 with the approval of the director of the budget, evidencing the commit-
33 ment of the county to develop a county home care plan for functionally
34 impaired elderly.
35 (f) Within the amounts appropriated therefor, counties submitting an
36 approved letter of intent pursuant to paragraph (e) of this subdivision
37 shall be eligible for reimbursement of one hundred percent of the
38 approved expenditures for preparing a county home care plan for func-
39 tionally impaired elderly. Such a grant-in-aid shall be available to a
40 county only once and shall be limited to one-half the amount available
41 to such county pursuant to subparagraph one of paragraph (a) of subdivi-
42 sion four of this section; provided however that in either of the two
43 years immediately following its first submission of a home care plan for
44 functionally impaired elderly, a county which does not receive state aid
45 during such year for expanded non-medical in-home services, non-institu-
46 tional respite services, case management services, and ancillary
47 services pursuant to paragraph (j) of subdivision four of this section,
48 may apply for reimbursement of one hundred percent of the approved
49 expenditures for revising such home care plan, limited to one-quarter
50 the amount available to such county pursuant to subparagraph one of
51 paragraph (a) of subdivision four of this section.
52 (g) County home care plans for functionally impaired elderly prepared
53 pursuant to this subdivision shall include a comprehensive description
54 of all aspects of home care, non-institutional respite, case management,
55 and ancillary services available to elderly persons in the county; a
56 description of intended actions to coordinate such home care, non-insti-
S. 8578 101
1 tutional respite, case management, and ancillary services to func-
2 tionally impaired elderly persons in their county provided under this
3 section with other services to elderly persons; a proposal for expanded
4 non-medical in-home services, non-institutional respite services, case
5 management services, and ancillary services for functionally impaired
6 elderly persons with unmet needs to support such persons' continued
7 residence in their homes; and such other components as may be required
8 pursuant to regulations promulgated by the director, including how the
9 proposed expanded non-medical in-home services, non-institutional
10 respite services, case management services, and ancillary services will
11 be delivered to unserved or underserved populations.
12 (h) Such county home care plan for functionally impaired elderly shall
13 be prepared by the designated agency after consultation with the social
14 services district and the local public health agency, and shall be
15 approved by the chief executive officer of the county, if there be one,
16 or otherwise the governing board of the county, or the chief executive
17 of the city of New York or the mayor of the city of Staten Island, and
18 submitted to the director for approval by such date as may be specified
19 by regulation. The director shall not approve such county home care plan
20 for functionally impaired elderly unless it complies with the standards
21 and regulations issued pursuant to this section.
22 4. State aid. (a) County plans for improving the availability of
23 community services to the elderly:
24 (1) within the amounts appropriated therefor, counties with an
25 approved county plan shall be eligible for reimbursement of one hundred
26 percent of the annual approved expenditures for the preparation and
27 revision of such county plan, evaluation of projects contained within
28 such county plan, execution of interagency agreements necessary to carry
29 out the plan, actions to consolidate, combine or collocate services
30 within the county, and such other costs of the designated agency neces-
31 sary to implement such county plan, provided that the total annual
32 amount payable to a county pursuant to this subparagraph shall not
33 exceed the sum of one dollar for each elderly person residing in the
34 county, or seventy-five thousand dollars, whichever is less, and further
35 provided that for the city of New York or the city of Staten Island such
36 amount shall not exceed one dollar for each elderly person residing in
37 [the] such city or three hundred seventy-five thousand dollars, whichev-
38 er is less. Notwithstanding the foregoing limitations, counties with a
39 population of less than twenty thousand elderly persons shall be eligi-
40 ble for reimbursement of one hundred percent of such annual approved
41 expenditures provided that the total annual amount of such reimbursement
42 per county shall not exceed twenty thousand dollars.
43 (2) within the amounts appropriated therefor, a county may receive a
44 grant-in-aid of up to twenty-five per centum of the total annual amount
45 that such county is eligible to receive pursuant to subparagraph one of
46 this paragraph for the cost of preparing an initial county plan in
47 accordance with this section. Such a grant-in-aid shall be available to
48 a county only once and shall be in addition to the reimbursement
49 received by the county pursuant to subparagraph one of this paragraph
50 for the first program year. A request for such a grant-in-aid shall be
51 accompanied by a letter of intent in the form prescribed by the director
52 evidencing the commitment of the county to develop a county plan for
53 community services and shall be submitted to the director at least six
54 months prior to the beginning of the first program year.
55 (b) Community service projects:
S. 8578 102
1 (1) within the amounts appropriated therefor, counties having an
2 approved county plan shall be eligible for reimbursement by the state
3 for expenditures for approved community service projects pursuant to
4 this section. Such state reimbursement shall not exceed thirty-three
5 thousand six hundred dollars or four dollars twenty cents for each
6 elderly person residing in the county, whichever is greater. The annual
7 state reimbursement eligibility shall be at a rate of seventy-five
8 percent of the total annual expenditures for such approved programs.
9 (2) the director shall provide by regulation that certain non-county
10 moneys and in-kind equivalents may be used to comprise the county share
11 of such total annual approved expenditures, provided that such county
12 share shall not include cost-sharing received from elderly persons
13 receiving expanded non-medical in-home services, non-institutional
14 respite services, case management services, and ancillary services
15 pursuant to paragraph (k) of this subdivision or moneys received from
16 the federal government for services for the elderly allocated to the
17 states or local governments according to population or other such non-
18 competitive basis.
19 (3) the director shall provide by regulation the requirements for any
20 participant contributions and fee schedules used for community service
21 projects and the manner for the accounting and use of any such revenue.
22 (c) Reimbursement pursuant to this section shall not be available for
23 expenditures for base year services otherwise provided without cost, or
24 to replace base year expenditures made by the county or any other
25 service provider irrespective of the source of funds for such services.
26 (d) Reimbursement shall not be available to community services
27 projects funded pursuant to paragraph (b) of this subdivision or to
28 expanded non-medical in-home services, non-institutional respite
29 services, case management services, and ancillary services funded pursu-
30 ant to paragraph (j) of this subdivision for services provided to elder-
31 ly persons who are eligible for or are receiving services to meet their
32 needs pursuant to titles eighteen, nineteen or twenty of the federal
33 social security act or any other governmental programs or for services
34 provided to residents in adult residential care facilities which had
35 previously been provided by the facility or which are required by law to
36 be provided by such facility.
37 (e) For the purpose of determining the amount of state reimbursement
38 for which a county is eligible pursuant to this section, the last
39 preceding federal census or other census data approved by the comp-
40 troller shall be used. Funds appropriated by the state for the purpose
41 of reimbursement for community services pursuant to this section shall
42 be apportioned among the counties pursuant to the formula set forth in
43 paragraph (b) of this subdivision by the director. Funds appropriated by
44 the state for the purpose of reimbursement for expanded non-medical
45 in-home services, non-institutional respite services, case management
46 services, and ancillary services pursuant to this section shall be
47 apportioned among the counties by the director pursuant to the formula
48 set forth in paragraph (j) of this subdivision.
49 (f) The comptroller may withhold the payment of state aid to any coun-
50 ty in the event that such county alters or discontinues the operations
51 approved by the director pursuant to this section or otherwise fails to
52 comply with the regulations or requirements of the director.
53 (g) Counties shall submit claims for reimbursement after the end of
54 each month or each quarter as required by and in accordance with proce-
55 dures prescribed by the director. Reimbursement shall be available for
S. 8578 103
1 approved expenditures incurred in accordance with an approved county
2 plan for community services.
3 (h) Reimbursement pursuant to subparagraph one of paragraph (b) or
4 paragraph (j) of this subdivision shall not be available for expendi-
5 tures for community or expanded non-medical in-home services, non-insti-
6 tutional respite services, case management services, and ancillary
7 services to elderly persons in the city of New York and in the city of
8 Staten Island unless expenditures for such services are apportioned for
9 services in each of the counties contained within such city in a manner
10 which the director has determined by regulation substantially reflects
11 the proportion that the number of elderly persons in that county bears
12 to the total number of elderly persons in [the] such city as a whole. In
13 determining whether reimbursement shall be available under paragraph (g)
14 of this subdivision, the director shall ensure that expenditures were
15 apportioned in accordance with the provisions of this paragraph.
16 (i) The director, within the amounts appropriated therefor and with
17 the approval of the director of the budget, may authorize a county which
18 has an approved home care plan for functionally impaired elderly to
19 provide expanded non-medical in-home services, non-institutional respite
20 services, case management services, and ancillary services pursuant to
21 such plan. Such services shall be limited to those services necessary to
22 meet otherwise unmet needs and which support such elderly persons'
23 continued residence in their homes. Needs will be determined pursuant to
24 a standardized evaluation of functional impairment, available resources
25 and such other relevant factors specified pursuant to regulations
26 promulgated by the director. No expanded non-medical in-home services,
27 non-institutional respite services, or ancillary services shall be
28 provided to any individual pursuant to this section unless such expanded
29 non-medical in-home services, non-institutional respite services, or
30 ancillary services are accompanied by ongoing case management services
31 in accordance with regulations promulgated by the director.
32 (j) Within the amounts appropriated therefor, counties authorized to
33 provide expanded non-medical in-home services, non-institutional respite
34 services, case management services, and ancillary services pursuant to
35 paragraph (i) of this subdivision shall be eligible for reimbursement by
36 the state of up to seventy-five percent of allowable expenditures for
37 approved services pursuant to this section up to the level authorized by
38 the director. The director shall not authorize a level of state
39 reimbursement pursuant to this paragraph which exceeds the sum of nine-
40 ty-one thousand two hundred fifty dollars or seven dollars thirty cents
41 for each elderly person residing in the county, whichever is greater,
42 and shall proportionately reduce such sum for each county in any years
43 for which appropriations are not sufficient to fully fund approved
44 expanded non-medical in-home services, non-institutional respite
45 services, case management services, and ancillary services for func-
46 tionally impaired elderly in all counties with approved home care plans;
47 provided however that in state fiscal years beginning on or after the
48 first day of April, two thousand five, the director, with the approval
49 of the director of the budget, may authorize state reimbursement in
50 excess of these levels to the extent appropriations are available there-
51 for.
52 (k) The director, with the approval of the director of the budget,
53 shall provide by regulation the extent of cost-sharing to be required of
54 elderly persons receiving expanded non-medical in-home services, non-in-
55 stitutional respite services, case management services, and ancillary
56 services pursuant to this section, which shall reflect such recipients'
S. 8578 104
1 means to pay for such services and which will not affect their ability
2 to remain in their homes; provided however that the director shall not
3 authorize or direct the withholding of state aid pursuant to paragraph
4 (f) of this subdivision prior to the first day of April, two thousand
5 five, based on any county's failure or inability to comply with regu-
6 lations promulgated pursuant to this paragraph. The full amount of cost-
7 sharing actually received by any county from elderly persons receiving
8 expanded non-medical in-home services, non-institutional respite
9 services, case management services, and ancillary services shall be used
10 by such county to expand either such county's program of community
11 services or such county's program of expanded non-medical in-home
12 services, non-institutional respite services, case management services,
13 and ancillary services pursuant to this section.
14 (l) Reimbursement pursuant to paragraph (j) of this subdivision shall
15 not be available for expenditures for base year services otherwise
16 provided without cost, or to replace base year expenditures made by the
17 county or any other service provider irrespective of the source of
18 funds, or to replace community services expenditures pursuant to para-
19 graph (b) of this subdivision.
20 (m) Counties shall submit claims for reimbursement for expanded
21 in-home services, non-institutional respite services, case management
22 services, and ancillary services to functionally impaired elderly as
23 required by and in accordance with procedures prescribed by the direc-
24 tor. Reimbursement shall be available for approved expenditures
25 incurred in accordance with an approved county home care plan for func-
26 tionally impaired elderly to the extent the director has authorized
27 state aid for such services pursuant to paragraph (i) of this subdivi-
28 sion.
29 (n) The director shall provide by regulation that certain non-county
30 moneys and in-kind equivalents may be used in part to compose the county
31 share of total allowable expenditures pursuant to paragraph (j) of this
32 subdivision, provided that such county share shall not include cost-
33 sharing received from elderly persons receiving expanded non-medical
34 in-home services, non-institutional respite services, case management
35 services, and ancillary services pursuant to paragraph (k) of this
36 subdivision or moneys received from the federal government for services
37 for the elderly allocated to the states or local governments according
38 to population or other such non-competitive basis.
39 § 8-013. Subdivision 9 of section 140 of the executive law, as amended
40 by chapter 861 of the laws of 1960, is amended to read as follows:
41 9. The clerks of the counties of New York, Kings, Queens, Richmond
42 and Bronx shall each keep a book or card index file in which shall be
43 registered the signature of the commissioners so filing such certif-
44 icates; and the county clerk of any county in the city with whom such
45 commissioner has filed a certificate of appointment shall, upon demand
46 and upon payment of the sum of fifty cents, authenticate a certificate
47 of acknowledgment or proof of oath taken before such commissioner of
48 deeds, without regard to the county in the city in which such [acknowlg-
49 ment] acknowledgment or proof was taken or oath administered, by
50 subjoining or attaching to the original certificate of acknowledgment or
51 proof or oath a certificate under his hand and official seal specifying
52 that at the time of taking the acknowledgment or proof or oath the offi-
53 cer taking it was duly authorized to take the same; that the authenti-
54 cating officer is acquainted with the former's handwriting, or has
55 compared the signature on the certificate of acknowledgment, proof or
S. 8578 105
1 oath with the autograph signature deposited in his office by such offi-
2 cer, and that he verily believes the signature is genuine.
3 § 8-014. Any person who resides in or maintains an office or other
4 place of business in the city of Staten Island and who resides in the
5 county of Richmond on the date of establishment of the city of Staten
6 Island who holds an appointment as a commissioner of deeds from the
7 preceding municipality shall be deemed to hold the appointment as
8 commissioner of deeds from the common council of the city of Staten
9 Island in accordance with the provisions of section 139 of the executive
10 law. Such person shall continue to hold such office until his original
11 appointment expires or is revoked pursuant to law.
12 § 8-015. Section 56 of the social services law, as amended by chapter
13 863 of the laws of 1977, is amended to read as follows:
14 § 56. City social services districts. The city of New York and the
15 city of Staten Island shall have all the powers and duties of a social
16 services district insofar as consistent with the provisions of the
17 special and local laws relating to such [city] cities. The officers
18 thereof charged with the administration of public assistance and care
19 shall have additional powers and duties of a commissioner of social
20 services not inconsistent with the laws relating to said [city] cities.
21 § 8-016. Section 57 of the social services law, as amended by chapter
22 863 of the laws of 1977, is amended to read as follows:
23 § 57. Cities in county social services districts. Each city, other
24 than the city of New York and the city of Staten Island, shall form part
25 of the county social services district of the county in which it is
26 situated and shall not assume any powers and responsibilities for the
27 administration or expense of public assistance and care, in addition to
28 those specified in subdivision two of section sixty-nine, except pursu-
29 ant to the provisions of sections seventy-four and seventy-four-a of
30 this chapter.
31 § 8-017. Section 61 of the social services law is amended by adding a
32 new subdivision 1-a to read as follows:
33 1-a. The city of Staten Island is hereby constituted a city social
34 services district.
35 § 8-018. Subdivision 1 of section 74 of the social services law, as
36 added by chapter 863 of the laws of 1977, is amended to read as follows:
37 1. Each city, other than the city of New York and the city of Staten
38 Island, which is responsible for one or more types of public assistance
39 and care on the date this section becomes effective shall function under
40 section seventy-four-a of this chapter.
41 § 8-019. Section 86-a of the social services law, as amended by chap-
42 ter 655 of the laws of 1978, is amended to read as follows:
43 § 86-a. City public welfare funds. The taxes levied for public
44 assistance and care in a city, or in a city public welfare district,
45 shall be paid to the city treasurer, [or] the commissioner of finance in
46 the city of New York or the comptroller in the city of Staten Island,
47 and disbursed in accordance with the provisions of law relating to such
48 city for the payment of bills and claims, provided such provisions of
49 law are not inconsistent with the provisions of this chapter.
50 § 8-020. Intentionally omitted.
51 § 8-021. Subdivision 2 of section 209 of the social services law, as
52 amended by chapter 71 of the laws of 1983, paragraphs (a), (b), (c),
53 (d), (e) and (f) as amended by section 2 of part Z of chapter 56 of the
54 laws of 2023, is amended to read as follows:
55 2. The following amounts shall be the standard of monthly need for
56 determining eligibility for and the amount of additional state payments,
S. 8578 106
1 depending on the type of living arrangement and the geographic area in
2 which the eligible individual or the eligible couple resides:
3 (a) On and after January first, two thousand twenty-three, for an
4 eligible individual living alone, $1,001.00; and for an eligible couple
5 living alone, $1,475.00.
6 (b) On and after January first, two thousand twenty-three, for an
7 eligible individual living with others with or without in-kind income,
8 $937.00; and for an eligible couple living with others with or without
9 in-kind income, $1,417.00.
10 (c) On and after January first, two thousand twenty-three, (i) for an
11 eligible individual receiving family care, $1,180.48 if he or she is
12 receiving such care in the city of New York, the city of Staten Island
13 or the county of Nassau, Suffolk, Westchester or Rockland; and (ii) for
14 an eligible couple receiving family care in the city of New York, the
15 city of Staten Island or the county of Nassau, Suffolk, Westchester or
16 Rockland, two times the amount set forth in subparagraph (i) of this
17 paragraph; or (iii) for an eligible individual receiving such care in
18 any other county in the state, $1,142.48; and (iv) for an eligible
19 couple receiving such care in any other county in the state, two times
20 the amount set forth in subparagraph (iii) of this paragraph.
21 (d) On and after January first, two thousand twenty-three, (i) for an
22 eligible individual receiving residential care, $1,349.00 if he or she
23 is receiving such care in the city of New York, the city of Staten
24 island or the county of Nassau, Suffolk, Westchester or Rockland; and
25 (ii) for an eligible couple receiving residential care in the city of
26 New York, the city of Staten Island or the county of Nassau, Suffolk,
27 Westchester or Rockland, two times the amount set forth in subparagraph
28 (i) of this paragraph; or (iii) for an eligible individual receiving
29 such care in any other county in the state, $1,319.00; and (iv) for an
30 eligible couple receiving such care in any other county in the state,
31 two times the amount set forth in subparagraph (iii) of this paragraph.
32 (e) On and after January first, two thousand twenty-three, (i) for an
33 eligible individual receiving enhanced residential care, $1,608.00; and
34 (ii) for an eligible couple receiving enhanced residential care, two
35 times the amount set forth in subparagraph (i) of this paragraph.
36 (f) The amounts set forth in paragraphs (a) through (e) of this
37 subdivision shall be increased to reflect any increases in federal
38 supplemental security income benefits for individuals or couples which
39 become effective on or after January first, two thousand twenty-four but
40 prior to June thirtieth, two thousand twenty-four.
41 § 8-022. Subdivision 1 of section 368-e of the social services law, as
42 amended by section 55 of part B of chapter 58 of the laws of 2009, is
43 amended to read as follows:
44 1. The department of health shall review claims for expenditures made
45 by counties, the city of Staten Island and the city of New York for
46 medical care, services and supplies which are furnished to preschool
47 children with handicapping conditions or such preschool children
48 suspected of having handicapping conditions, as such children are
49 defined in the education law. If approved by the department, payment for
50 such medical care, services and supplies which would otherwise qualify
51 for reimbursement under this title and which are furnished in accordance
52 with this title and the regulations of the department to such children,
53 shall be made in accordance with the department's approved medical
54 assistance fee schedules by payment to such county or [city] cities
55 which furnished the care, services or supplies either directly or by
56 contract. Notwithstanding any provisions of law, rule or regulation to
S. 8578 107
1 the contrary, any clinic or diagnostic and treatment center licensed
2 under article twenty-eight of the public health law, which as determined
3 by the state education department, in conjunction with the department of
4 health, has a less than arms length relationship with the provider
5 approved under section forty-four hundred ten of the education law
6 shall, subject to the approval of the department and based on standards
7 developed by the department, be authorized to directly submit such
8 claims for medical assistance, services or supplies so furnished for any
9 period beginning on or after July first, nineteen hundred ninety-seven.
10 The actual full cost of the individualized education program (IEP)
11 related services incurred by the clinic shall be reported on the New
12 York State Consolidated Fiscal Report in the education law section
13 forty-four hundred ten program cost center in which the student is
14 placed and the associated medical assistance revenue shall be reported
15 in the same manner.
16 § 8-023. Subdivision 13 of section 390 of the social services law, as
17 amended by chapter 160 of the laws of 2003, is amended to read as
18 follows:
19 13. Notwithstanding any other provision of law, this section[, except
20 for paragraph (a-1) of subdivision two-a of this section,] shall not
21 apply to child day care centers in the city of New York or in the city
22 of Staten Island.
23 § 9-001. Subdivision 1 of section 214 of the county law, as amended by
24 chapter 967 of the laws of 1973, is amended to read as follows:
25 1. Concurrent resolutions, election notices and official canvass.
26 The members of the county legislative body, whether such body be denomi-
27 nated board of supervisors, county legislature or otherwise, or, in the
28 [city] cities of New York and Staten Island, of the council of each such
29 city representing respectively each of the two principal political
30 parties into which the people of the state are divided, shall designate
31 annually the newspaper published within the county to publish the
32 concurrent resolutions of the legislature. Such designation shall be in
33 writing and signed by a majority of the members representing each of
34 said political parties. In making such designation, consideration shall
35 be given to the newspapers advocating the principles of such political
36 party, the support of its nominees and the extent of the circulation in
37 the county. However the fact that a newspaper is an independent newspa-
38 per not advocating the principles of any political party shall not
39 disqualify it from consideration. If there be but one newspaper
40 published in the county, such newspaper shall be designated. The desig-
41 nation shall be filed with the clerk of the county legislative body or,
42 in the [city] cities of New York and Staten Island, with the clerk of
43 the council of each such city, who shall not later than January tenth
44 cause notice of the name and address of such newspaper or newspapers to
45 be forwarded to the secretary of state. In like manner the members of
46 the county legislative body or, in the [city] cities of New York and
47 Staten Island, of the council of each such city representing each of the
48 two principal political parties into which the people of the state are
49 divided, shall designate the newspaper published within the county to
50 publish the election notices issued by the secretary of state and the
51 newspaper to publish the official canvass. In the event of a failure so
52 to designate in any year, or if either of such political parties has no
53 representatives among the body or, in the [city] cities of New York and
54 Staten Island, council membership, the last newspaper designated by the
55 members of such party shall be deemed duly designated.
S. 8578 108
1 § 9-002. Section 226-a of the county law, as added by chapter 80 of
2 the laws of 1969, is amended to read as follows:
3 § 226-a. Patriotic observances. The county legislature and/or board
4 of supervisors, as the case may be, of any county or borough outside the
5 city of New York or the city of Staten Island, is hereby authorized to
6 appropriate and set aside each year such sums it may deem proper for the
7 purpose of providing for the due and proper observance of any legal
8 holiday, including Columbus day.
9 § 9-003. Section 361-a of the county law, as amended by chapter 359 of
10 the laws of 1989, is amended to read as follows:
11 § 361-a. Expenses of boards of elections outside New York City and the
12 city of Staten Island; apportionment of. The board of elections in each
13 county, outside of the [city] cities of New York and Staten Island, on
14 or before the fifteenth day of December and not earlier than the first
15 day of October, in each year, shall certify to the clerk of the legisla-
16 tive body of the county, the total amount of the expenses of such board
17 of elections, including salaries for the preceding year, and, if the
18 legislative body of any county shall so direct, shall certify to such
19 clerk the portions of such expenses which under provisions of law are to
20 be borne by any city or cities in said county and the portion thereof
21 which is to be borne by the rest of such county and such clerk shall
22 thereupon notify the proper local official or officials, who, in spread-
23 ing upon the assessment-rolls the taxes to be levied upon the taxable
24 property in the city or any such cities, and in the rest of the county,
25 shall include in the amount so spread the amounts certified by the board
26 of elections to be borne by such city or cities, respectively, and in
27 the amount spread upon the assessment-rolls of the taxable property in
28 the several towns or other political subdivisions of the rest of the
29 county the amount so certified by said board of elections to be borne by
30 such towns or political subdivisions respectively. Whenever any addi-
31 tional expenses either for salaries or supplies in addition to the regu-
32 lar county-wide primary and election expenses are incurred by a board of
33 elections incidental to any election in any city, town or village, such
34 board of elections shall certify to the county legislative body a
35 detailed statement of such expenses and said county legislative body may
36 cause the amount thereof to be levied against such city, town or village
37 or may certify the amount thereof to such city, town or village and such
38 city, town or village shall upon such certification, include the amount
39 so certified in the next budget and tax levy and shall pay the same to
40 the county.
41 § 9-004. Subdivision 2 of section 390 of the county law, as added by
42 chapter 1 of the laws of 1951, is amended to read as follows:
43 2. Whenever a patient admitted to said hospital has local residence,
44 as defined in the public health law, in the county in which the hospital
45 is situated, he shall be a charge upon such county. If such patient
46 admitted to said hospital has local residence in some other county or in
47 the city of New York or the city of Staten Island, he shall be a charge
48 upon such other county or the city of New York or the city of Staten
49 Island, as the case may be, and the superintendent shall send a bill for
50 such charge to the clerk of the board of supervisors of such other coun-
51 ty or to the comptroller of the city of New York or of the city of
52 Staten Island. Such charge shall be at a rate to be fixed by the board
53 of managers, which shall not exceed the per diem per capita cost of care
54 and treatment in said hospital, and if the county operating said hospi-
55 tal is currently receiving state aid for the care and treatment of
56 tuberculosis patients pursuant to the public health law, such charge may
S. 8578 109
1 be an amount for each day of such patient's care equivalent to the
2 balance of the total per diem per capita cost of operating such hospital
3 during the preceding fiscal year, as computed and approved by the state
4 commissioner of health [pursuant to subdivision three of section fifty-
5 four of the public health law]. Such bill shall be audited and paid by
6 the board of supervisors of said county, except that a bill so submitted
7 to the city of New York or the city of Staten Island shall be paid by
8 such city after audit and upon warrant of the comptroller of such city.
9 Any patient admitted to said hospital may pay for his care and treatment
10 in whole or in part if he volunteers to do so.
11 § 9-005. Section 391 of the county law, as added by chapter 1 of the
12 laws of 1951, is amended to read as follows:
13 § 391. Admission of out of county patients. 1. Exclusive of the
14 city of New York and the city of Staten Island, and exclusive of coun-
15 ties served by state tuberculosis hospitals, any person in a county not
16 having a county hospital for the care and treatment of persons suffering
17 from tuberculosis may apply in person to the clerk of the board of
18 supervisors of such county or to the state commissioner of health for
19 admission to a tuberculosis hospital, providing that such person submit
20 with such application a statement signed by a reputable physician that
21 such physician has, within the ten days preceding the date of such
22 application, examined such person and that, in his opinion, such person
23 is suffering from tuberculosis or is suspected of having tuberculosis
24 and is in need of care and treatment therefor. Upon receipt of such
25 application, the clerk of the board of supervisors or the state commis-
26 sioner of health, as the case may be, shall forward the same to the
27 superintendent of any state, county or city hospital for the care and
28 treatment of tuberculosis.
29 2. Whenever the superintendent of such a hospital shall receive an
30 application for the admission of a patient in accordance with the
31 provisions of subdivision one of this section, if it appear from such
32 application that the person therein referred to is suffering from tuber-
33 culosis or is suspected of having tuberculosis and is in need of care
34 and treatment therefor, the superintendent shall notify said person to
35 appear in person at the hospital, provided there be a vacancy in such
36 hospital and there be no pending application from a patient living in
37 the county in which the hospital is located. If, upon personal examina-
38 tion of the patient, the superintendent is satisfied that such patient
39 is in need of care and treatment for tuberculosis, he shall admit him to
40 the hospital. Every patient so admitted shall be a charge against the
41 county in which he was living immediately prior to such admission. Such
42 charge shall be at a rate to be fixed by the board of managers, which
43 shall not exceed the per diem per capita cost of maintenance therein and
44 any cost of transportation to or from the hospital, except that if the
45 county operating said hospital is currently receiving state aid for the
46 care and treatment of tuberculosis patients pursuant to the public
47 health law, such charge shall be an amount for each day of such
48 patient's care equivalent to the balance of the total per diem per capi-
49 ta cost of operating such hospital during the preceding fiscal year, as
50 computed and approved by the state commissioner of health [pursuant to
51 subdivision three of section fifty-four of the public health law]; and
52 the bill therefor shall be audited and paid by the board of supervisors
53 of the said county. However, if such patient has local residence, as
54 defined in the public health law, in some county other than the one in
55 which he was living immediately prior to such admission or in the city
56 of New York or the city of Staten Island, he shall be a charge upon such
S. 8578 110
1 other county or the city of New York or the city of Staten Island, as
2 the case may be, and in this event any amounts for the cost of such care
3 and treatment which shall have been paid by the county from which he was
4 admitted shall be charged back and reimbursed to such county by the
5 aforesaid other county or the city of New York or the city of Staten
6 Island in which the patient has local residence. Any patient admitted
7 to a hospital in accordance with the provisions of subdivision one of
8 this section may pay for his care and treatment in whole or in part if
9 he volunteers to do so.
10 § 9-006. Section 901 of the county law is amended by adding a new
11 subdivision 1-a to read as follows:
12 1-a. The commissioner of corrections of the city of Staten Island
13 shall have custody of the civil jails and persons lawfully committed to
14 his or her custody and such jails shall be kept by him or her, or by
15 keepers appointed by him or her, for whose acts he or she shall be
16 responsible.
17 § 9-007. Subdivision 1 of section 902 of the county law, as amended by
18 chapter 950 of the laws of 1956, is amended to read as follows:
19 1. The offices of the county clerk in the counties constituting the
20 city of New York and the office of the Richmond county clerk shall
21 remain open for the transaction of business from nine o'clock in the
22 forenoon to four o'clock in the afternoon every day except Saturdays,
23 Sundays and holidays and except in the months of July and August when
24 said offices shall remain open for the transaction of business from nine
25 o'clock in the forenoon to two o'clock in the afternoon except Satur-
26 days, Sundays and holidays.
27 § 9-008. Section 904 of the county law, as amended by chapter 655 of
28 the laws of 1978, is amended to read as follows:
29 § 904. Court and trust fund register and liability of officers. The
30 county clerks of the counties comprising the city of New York and the
31 Richmond county clerk shall perform the same duties and shall be subject
32 to the same penalties imposed by the provisions of this chapter upon
33 other county clerks of the state with relation to court and trust fund
34 registers and the delivery of property or moneys to the commissioner of
35 finance in pursuance of any judgment, decree or order of a court of
36 record of this state.
37 § 9-009. The county law is amended by adding a new section 905-a to
38 read as follows:
39 § 905-a. Liability for loss of court and trust funds in the city of
40 Staten Island. The officer responsible for collection and management of
41 public funds for the city of Staten Island and such officer's surety or
42 sureties shall be liable in the same manner as county treasurers are
43 made liable under the provisions of this chapter for the loss of court
44 and trust funds.
45 § 9-010. The county law is amended by adding a new section 906-a to
46 read as follows:
47 § 906-a. Liability of city of Staten Island for loss of court and
48 trust funds. The city of Staten Island shall be responsible for all
49 property or moneys deposited with the officer responsible for collection
50 and management of public funds for the city of Staten Island by virtue
51 of any judgment, decree or order of a court of record in this state
52 provided, however, that the city shall not be held liable for any loss
53 due to the depreciated value of an investment legal at the time of its
54 purchase and which continued to be a legal investment during the period
55 of the trust. An action to recover any loss to or of such fund may be
S. 8578 111
1 brought against the city by any party aggrieved or by the state comp-
2 troller in a court of competent jurisdiction.
3 § 9-011. The county law is amended by adding a new section 931-a to
4 read as follows:
5 § 931-a. Employees of the district attorney of the county of Rich-
6 mond. The district attorney of Richmond county is vested with the power
7 to appoint any person to any position for which there is now provision
8 by appropriation or which shall hereafter be established. All positions
9 in the district attorney's office of Richmond county for which there is
10 now provision by appropriation shall be continued, except that the mayor
11 of the city of Staten Island may with the consent of the district attor-
12 ney increase or decrease the number of positions and the term, grade,
13 salary and compensation of any position.
14 § 9-012. The county law is amended by adding a new section 944 to read
15 as follows:
16 § 944. Applicability of article to the county of Richmond. For the
17 purposes of continuing the application of this article within the city
18 of Staten Island on and after the date of establishment of the city of
19 Staten Island, the county of Richmond shall be deemed to continue as a
20 county within the city of New York for the purposes of exercising those
21 powers and duties devolved upon said county of Richmond pursuant to this
22 article.
23 § 9-013. Subdivision 2 and paragraphs (a) and (c) of subdivision 3 of
24 section 9-124 of the election law, subdivision 2 as amended by chapter
25 437 of the laws of 2019, paragraphs (a) and (c) of subdivision 3 as
26 amended by chapter 481 of the laws of 2023, are amended to read as
27 follows:
28 2. Each box, envelope, or container containing the ballots and stubs,
29 if any, and all items described in subdivision one of this section shall
30 be deposited by an inspector designated for that purpose with the offi-
31 cer or board from whom or which the board of inspectors received it. In
32 the city of New York and the city of Staten Island, every such box,
33 envelope, or container shall be delivered at the polling place to police
34 or peace officers designated by the police commissioner of such [city]
35 cities, who shall deposit them with the appropriate board of elections.
36 (a) Except in the city of New York or the city of Staten Island, the
37 registration poll records or computer generated registration lists, the
38 returns of canvass with results tapes and tally sheets, if any, annexed,
39 the voted ballots, stubs, opened packages of unused ballots and ballot
40 envelopes, any early mail, absentee, military, special federal, or
41 special presidential ballots which may have been delivered to the poll
42 site during election day, the challenge report records, keys and the
43 package of protested and void ballots shall be filed with the appropri-
44 ate board of elections.
45 (c) In the city of New York and the city of Staten Island, the board
46 of inspectors shall deliver to police or peace officers designated by
47 the police commissioner of such [city] cities, at the polling place the
48 registration poll records or computer generated registration lists,
49 challenge report, records, keys, other election supplies, including two
50 copies of the returns of the canvass and any early mail, absentee, mili-
51 tary, special federal, or special presidential ballots which may have
52 been delivered to the poll site during election day, voted ballots,
53 stubs, open packages of unused ballots and ballot envelopes. Such police
54 or peace officers shall file the returns, the package of void and
55 protested ballots, if any, and the early mail, absentee, military,
56 special federal, or special presidential ballots which may have been
S. 8578 112
1 delivered to the poll site during election day; and emergency ballots,
2 stubs and ballot envelopes, if any, within twenty-four hours after the
3 close of the polls, in the office of the appropriate board of elections
4 or its branch office within the borough, as the case may be.
5 § 9-014. Subdivision 3 of section 9-124 of the election law is amended
6 by adding a new paragraph (d) to read as follows:
7 (d) In the city of Staten Island the board of inspectors, shall deliv-
8 er to the police or peace officer at the polling place the registration
9 poll records or computer generated registration lists, challenge report,
10 records, keys, the flag, other election supplies, the returns of the
11 canvass and the absentee and military, special federal, special presi-
12 dential and emergency ballots, stubs and ballot envelopes. The police
13 or peace officer shall file the returns, the package of void, protested
14 and wholly blank ballots, if any, and the absentee and military, special
15 federal, special presidential and emergency ballots, stubs and ballot
16 envelopes, if any, within twenty-four hours after the close of the
17 polls, in the office of the board of elections.
18 § 9-015. Section 88-b of the state finance law, as added by chapter 13
19 of the laws of 1987, subdivisions 2 and 6 as amended by chapter 65 of
20 the laws of 1988, is amended to read as follows:
21 § 88-b. Suburban transportation fund. 1. There is hereby established
22 in the joint custody of the commissioner of taxation and finance and the
23 comptroller a fund to be known as the "suburban transportation fund".
24 2. The suburban transportation fund shall consist of moneys from the
25 commuter railroad account of the metropolitan transportation authority
26 special assistance fund required to be paid by such authority to the
27 suburban transportation fund pursuant to subdivision three of section
28 twelve hundred seventy-a of the public authorities law and any moneys
29 from the metropolitan transportation authority Dutchess, Orange and
30 Rockland fund transferred pursuant to subdivision four of section twelve
31 hundred seventy-a of the public authorities law.
32 3. Moneys in the suburban transportation fund shall be kept separate
33 from and shall not be commingled with any other moneys in the custody of
34 the commissioner of taxation and finance and the comptroller. All depos-
35 its of such money shall, if required by the comptroller, be secured by
36 obligations of the United States or of the state of market value equal
37 at all times to the amount of the deposit and all banks and trust compa-
38 nies are authorized to give such securities for such deposits.
39 4. Moneys of the fund shall be made available for financing any of the
40 following types of capital projects within the counties comprising the
41 metropolitan commuter transportation district, except those counties
42 comprising the city of New York or the city of Staten Island, but only
43 to the extent that such projects are on an adopted transportation plan
44 and approved by a designated transportation coordinating committee, if
45 one exists, or by the metropolitan planning organization as created
46 pursuant to section fifteen-a of the transportation law if no designated
47 transportation coordinating committee exists: capacity and infrastruc-
48 ture improvements to state, county, town, city, village roads, highways,
49 parkways and bridges; or state, county, town, city or village mass
50 transportation projects; provided, however, that in Nassau and Suffolk
51 counties such moneys shall be available only for capacity improvements
52 to state roads, highways, parkways and bridges. The amount of state
53 funds historically appropriated statewide, other than bond funds, for
54 transportation capital purposes from other sources shall not be reduced
55 because of the availability of such moneys made available pursuant to
56 this chapter, nor shall such moneys be used to match federal aid. Prior
S. 8578 113
1 to the allocation of state advance funds appropriated pursuant to this
2 section, the municipality responsible for the project shall certify to
3 the commissioner of transportation that the amount of funds appropriated
4 for transportation capital purposes by that municipality shall not be
5 reduced because of the availability of such state advance funds, and
6 that such moneys shall not be used to match federal aid.
7 The designated transportation coordinating committee, if one exists,
8 or the metropolitan planning organization if no designated transporta-
9 tion coordinating committee exists, shall notify the municipalities
10 within its jurisdiction of which projects it has approved.
11 5. In the event that any county withdraws from the metropolitan commu-
12 ter transportation district, the withdrawing county shall pay to the
13 state comptroller any amount that is required so that the state is fully
14 reimbursed for funds advanced in anticipation of reimbursement from the
15 suburban transportation fund. In the event that any withdrawing county
16 shall fail to make a payment pursuant to this subdivision, the state
17 comptroller shall withhold and pay to the capital projects fund an
18 amount equal to the amount owed from the next general or specific state
19 aid payment and scheduled to be paid to that county.
20 6. Moneys in the suburban transportation fund transferred pursuant to
21 section twelve hundred seventy-a of the public authorities law shall be
22 made available to the state department of transportation for capital
23 projects in the counties of Nassau, Suffolk, Westchester, Putnam, Dutch-
24 ess, Orange and Rockland on the basis of each county's average pro rata
25 share of the mortgage recording tax receipts raised in such counties
26 pursuant to subdivision one of section two hundred sixty-one of the tax
27 law during the period January first, nineteen hundred eighty-four
28 through December thirty-first, nineteen hundred eighty-six as certified
29 by the metropolitan transportation authority. Moneys transferred to the
30 suburban transportation fund at the request of Dutchess, Orange or Rock-
31 land county pursuant to subdivision three of section twelve hundred
32 seventy-b of the public authorities law shall be used by the state
33 department of transportation to increase the proportionate share of such
34 capital projects in such county. Such projects shall be financed by
35 means of a state advance to be reimbursed by the New York state thruway
36 authority, or its successor agency, through the issuance of its bonds or
37 notes in the manner set forth in subdivision seven of this section, or
38 by means of a state advance to be reimbursed directly from the suburban
39 transportation fund.
40 7. (a) For projects funded by the suburban transportation fund, the
41 state department of transportation may enter into an agreement with the
42 New York state thruway authority, or its successor agency, for the
43 purpose of having the thruway authority, or its successor agency, issue
44 bonds or notes to pay the capital costs of such project. Such agreement
45 shall be subject to approval by the director of the division of the
46 budget.
47 (b) For projects funded pursuant to this subdivision, the affected
48 municipality shall enter into an agreement with the department of trans-
49 portation for the conveyance of all affected real property including
50 highways, roads and bridges to the thruway authority, or its successor
51 agency, for the term of the bonds or notes issued by the thruway author-
52 ity, or its successor agency, for such project or for such lesser period
53 that such bonds or notes are outstanding. During the period of such
54 conveyance to the thruway authority, or its successor agency, the
55 department of transportation or the municipality shall agree to maintain
56 the facility in a state of good repair, the responsibility for which
S. 8578 114
1 shall be with the state, or municipality, which had jurisdiction over
2 said facility prior to such agreement.
3 (c) Upon the final retirement of all bonds and notes issued by the
4 thruway authority, or its successor agency, for such purpose, such prop-
5 erty shall automatically revert to the conveying entity.
6 8. Payments to the thruway authority, or its successor agency, pursu-
7 ant to this section shall be subject to appropriation from the suburban
8 transportation fund. The thruway authority, or its successor agency,
9 shall utilize such moneys to pay the debt service on such bonds or notes
10 and to meet administrative costs in connection therewith.
11 § 9-016. Section 2302 of the surrogate's court procedure act, as
12 amended by chapter 460 of the laws of 1999, is amended to read as
13 follows:
14 § 2302. Award of costs and allowances
15 1. Upon a motion the court may award costs to any party in such
16 amount as it determines not exceeding $20 to each party, except in coun-
17 ties within the City of New York and in the city of Staten Island, where
18 such amount shall not exceed $40.
19 2. Upon rendering a decree or in granting or denying an application
20 to vacate a decree the court may award as costs such sum as it deems
21 reasonable to the petitioner and to any other party who has succeeded in
22 whole or in part in a contest or whose attorney, in the absence of a
23 contest, has rendered services of substantial benefit to him, her or it,
24 or to the estate, not exceeding
25 (a) in counties within the City of New York and in the city of Staten
26 Island:
27 (i) $100 where there has not been a contest, or
28 (ii) $300 where there has been a contest and $300 for each day, less
29 one, necessarily occupied in the trial or hearing and in addition $100
30 for each day necessarily occupied in preparing therefore and $100 addi-
31 tional if a motion for a new trial is granted.
32 (b) in all other counties:
33 (i) $50 where there has not been a contest, or
34 (ii) $150 where there has been a contest and $150 for each day, less
35 one, necessarily occupied in the trial or hearing and in addition $50
36 for each day necessarily occupied in preparing therefore and $50 addi-
37 tional if a motion for a new trial is granted.
38 3. In a contested probate proceeding:
39 (a) Costs payable out of the estate or otherwise may be awarded (1) to
40 an unsuccessful contestant only if he, she or it be a guardian ad litem
41 or guardian, committee or conservator of a person under disability; (2)
42 to an unsuccessful proponent named as executor in the will when
43 propounded by him, her or it in good faith as the last will of the dece-
44 dent; and (3) to a person named as executor in a prior will on file in
45 the court that is not admitted to probate when such person participates
46 in the proceeding in good faith. Such nominated executor, guardian ad
47 litem, guardian, committee or conservator, whether successful or not may
48 be awarded costs and an allowance in such sum as the court deems reason-
49 able for his, her or its counsel fees and other expenses incurred in the
50 contest or attempt to sustain the will. The court may direct that such
51 costs and allowances in whole or in part be payable by an unsuccessful
52 contestant except that an award of the successful proponent's counsel's
53 fees may only be allowed where the court finds that the contest was
54 brought in bad faith or was frivolous.
55 (b) Either before or after the decree granting probate the court may
56 order that a copy of the minutes of the trial be furnished to a contes-
S. 8578 115
1 tant for the purposes of appeal and charge the expense thereof initially
2 to the estate if satisfied that the contest is in good faith. If the
3 contestant be unsuccessful upon the appeal and he, she or it is not the
4 guardian of an infant, the committee of an incompetent, the conservator
5 of a conservatee or a guardian ad litem he, she or it shall refund to
6 the estate any amount so paid by the estate for the minutes.
7 4. In a proceeding for probate of a will when the public administra-
8 tor or county treasurer has been directed to probate a will or continue
9 the proceedings for the probate thereof, the court may award to either
10 of them such sum as it deems reasonable for his, her or its counsel fees
11 and other expenses necessarily incurred therein.
12 5. After appeal, pursuant to the direction of the appellate court the
13 court may award a fiduciary such sum as it deems reasonable for counsel
14 fees and other expenses necessarily incurred on the appeal.
15 6. In a proceeding to construe a will or after appeal in such a
16 proceeding, pursuant to the direction of the appellate court the court
17 may award to a fiduciary or any party to the proceeding such sum as it
18 deems reasonable for his, her or its counsel fees and other expenses
19 necessarily incurred in the proceeding or on the appeal.
20 7. Upon a final or intermediate judicial settlement a fiduciary may
21 be awarded for his, her or its expenses and counsel fees such sum as the
22 court deems reasonable not exceeding:
23 (a) within the counties of the City of New York and in the city of
24 Staten Island: $100 for each day necessarily occupied in preparing the
25 account and in drawing, entering and executing the decree. Any sum so
26 awarded may be in addition to any costs, allowances or commissions
27 otherwise authorized and awarded by the court.
28 (b) in all other counties: $ 50 for each day necessarily occupied in
29 preparing the account and in drawing, entering and executing the decree.
30 Any sum so awarded may be in addition to any costs, allowances or
31 commissions otherwise authorized and awarded by the court.
32 8. In a proceeding for disposition of real property a fiduciary may
33 be awarded out of the proceeds of sale his, her or its commissions and
34 such sum as the court deems reasonable for counsel fees and expenses
35 necessarily incurred in the proceeding.
36 § 9-017. The general municipal law is amended by adding a new section
37 929 to read as follows:
38 § 929. City of Staten Island industrial development agency. (a)
39 Legislative intent. It is the policy and intent of the city of Staten
40 Island to promote the economic welfare of its inhabitants and to active-
41 ly promote, attract, encourage and develop economically sound commerce
42 and industry through governmental action for the purpose of preventing
43 unemployment and economic deterioration by the creation of a city of
44 Staten Island industrial development agency. It is recognized that the
45 viability and integrity of the residential communities in the city of
46 Staten Island should be protected and maintained so that no person be
47 deprived of his or her place of residence by any condemnation for
48 economic or industrial development undertaken pursuant to this article.
49 (b) For the purpose of this section "city" means the city of Staten
50 Island.
51 (c) For the benefit of the city and the inhabitants thereof an indus-
52 trial development agency, to be known as the city of Staten Island
53 industrial development agency, is hereby established for the accomplish-
54 ment of any or all of the purposes specified in title one of this arti-
55 cle, except that it shall not have the power to construct or rehabili-
56 tate any residential facility or housing of any nature and kind
S. 8578 116
1 whatsoever, nor shall it use any of its funds to further the
2 construction or rehabilitation of any residential facility or housing of
3 any nature and kind whatsoever. It shall constitute a body corporate
4 and politic, and be perpetual in duration. It shall only have the
5 powers and duties conferred by title one of this article upon industrial
6 development agencies as of January first, nineteen hundred seventy-three
7 except it shall not have the power of condemnation. In the exercise of
8 the powers conferred upon such agency with respect to the acquisition of
9 real property by this article such agency shall be limited to the
10 geographical jurisdictional limits of the city.
11 (d) It shall be organized in a manner prescribed by and be subject to
12 the provisions of title one of this article, except that its board shall
13 consist of ten members. Among its membership shall be the city comp-
14 troller, the city commissioner of economic development, the corporation
15 counsel of such city and the director of the city planning commission of
16 such city, each of whom shall have the power to designate an alternate
17 to represent them at board meetings with all the rights and powers,
18 including the right to vote, reserved to all board members, provided
19 that such designation be in writing to the chairperson of the board.
20 The remaining six members shall be appointed by the mayor of such city.
21 (e) The mayor shall designate the chairperson of the board, who shall
22 serve at the pleasure of the mayor.
23 (f) The terms of the directors first appointed by the mayor, other
24 than the chairperson of the board shall be as follows:
25 (1) two shall serve for terms of one year each;
26 (2) two shall serve for terms of two years each;
27 (3) two shall serve for terms of three years each, thereafter the
28 successors of all such directors shall serve for terms of three years
29 each. The mayor shall fill any vacancy which may occur by reason of
30 death, resignation, or otherwise in a manner consistent with the
31 original appointment. Members may be removed by the mayor for cause
32 after a hearing upon ten days' written notice. Such members shall
33 receive no compensation for their services but shall be entitled to the
34 necessary expenses, including traveling expenses, incurred in the
35 discharge of their duties.
36 (g) The chief executive officer of the agency shall be appointed by a
37 two-thirds vote of the board of directors.
38 (h) The agency, its members, officers, and employees, shall be
39 subject to article fourteen of the civil service law and for all such
40 purposes the agency shall be deemed the "public employer" and its
41 members, officers and employees shall be deemed "public employees".
42 (i) The city shall have the power to make, or contract to make grants
43 or loans including, but not limited to grants or loans of money, to the
44 agency in such amounts, upon such terms and conditions and for such
45 period or periods of time as in the judgment of the city and the agency
46 are necessary or appropriate for the accomplishment of any of the
47 purposes of the agency.
48 (j) The city shall have the power to condemn property for transfer to
49 the city of Staten Island industrial development agency under title one
50 of this article upon the request of two-thirds of the members of the
51 board of directors of the city of Staten Island industrial development
52 agency. No property shall be condemned on behalf of the agency which is
53 zoned "residential" as defined in the zoning resolution of the city, if
54 any, or which is occupied in whole or in part as a dwelling or resi-
55 dence.
S. 8578 117
1 (k) For the purpose of this section "governing body" as used in title
2 one of this article shall mean the mayor of the city. Except as other-
3 wise provided in this section, the agency, its members, officers and
4 employees, and its operations and activities shall be governed by the
5 provisions of title one of this article.
6 (l) The city shall save harmless and indemnify any person who is
7 serving or has served as a director or officer or as employee of the
8 city of Staten Island industrial development agency against any finan-
9 cial loss arising out of or in connection with any claim, demand, suit
10 or judgment, based on a cause of action involving allegations that pecu-
11 niary harm was sustained by any person as a result of any transaction,
12 act or omission to act of the city of Staten Island industrial develop-
13 ment agency or of any action or inaction or vote of any director, offi-
14 cer or employee of such agency unless such individual is found by a
15 final judicial determination not to have acted in good faith for a
16 purpose such individual reasonably believed to be in the best interests
17 of the agency or not to have had reasonable cause to believe that such
18 conduct was lawful. Provided, however, that such individual must trans-
19 mit to the corporation counsel of the city of Staten Island any notice
20 of claim, summons or complaint or other analogous paper served on such
21 individual within ten days of its receipt unless prevented from doing so
22 by compelling circumstances. The corporation counsel shall, without
23 charge, represent any such individual unless unable to do so by reason
24 of conflict of interest. In the event that the corporation counsel is
25 unable to give such representation, the city of Staten Island shall
26 indemnify the individual for any reasonable litigation expense incurred
27 by such individual.
28 § 10-001. Legislative findings. It is the intention of the legisla-
29 ture that the incorporation of the city of Staten Island shall not alter
30 the existing landlord-tenant relationships within such city and that the
31 state and local laws regulating landlord-tenant relationships such as
32 legal regulated rents, maximum rents and tenancy issues shall continue
33 to provide such regulation until superseded by state law or local law of
34 the city of Staten Island and in accordance with such intent, such laws
35 and regulations are hereby continued. It is further provided that all
36 real property tax exemptions provided under article 4 of the real prop-
37 erty tax law shall be continued as shall all rent regulations and other
38 regulations and duties imposed on the owners of property receiving
39 exemptions pursuant to such article until superseded by state law or
40 local law of the city of Staten Island.
41 § 10-002. Section 1 of chapter 21 of the laws of 1962, constituting
42 the local emergency housing rent control act, is amended by adding a new
43 subdivision 2-a to read as follows:
44 2-a. Applicability. For the purposes of this act, a city which is
45 incorporated on or after the first of January next succeeding the date
46 on which this subdivision shall have become a law and which is comprised
47 of a geographical area with respect to which provisions of this act were
48 in effect on the date immediately prior to such incorporation and which
49 city had been wholly contained within a city with a population of one
50 million or more shall continue to be treated as a city with a population
51 of one million or more.
52 § 10-003. Section 4 of section 4 of chapter 576 of the laws of 1974,
53 constituting the emergency tenant protection act of nineteen seventy-
54 four, is amended by adding a new subdivision f to read as follows:
55 f. In the city of Staten Island, the rent guidelines board shall be
56 the rent guidelines board established pursuant to the local law enacted
S. 8578 118
1 as a successor to the New York city rent stabilization law of nineteen
2 hundred sixty-nine and provided with such powers under such local law.
3 § 10-004. Subdivision b of section 14 of section 4 of chapter 576 of
4 the laws of 1974, constituting the emergency tenant protection act of
5 nineteen seventy-four, is relettered subdivision c and a new subdivision
6 b is added to read as follows:
7 b. in the city of Staten Island; provided that for the purposes of
8 this act, the city of Staten Island shall continue to be treated as a
9 city with a population of one million or more and the reference to any
10 local law applicable to the geographical area of such city prior to its
11 incorporation shall refer to the appropriate successor legislation
12 enacted by the city of Staten Island; and
13 § 10-005. The section heading and subdivision 8 of section 352-eeee of
14 the general business law, as amended by section 1 of part N of chapter
15 36 of the laws of 2019, are amended to read as follows:
16 Conversions to cooperative or condominium ownership in the city of New
17 York or in the city of Staten Island.
18 8. The provisions of this section shall only be applicable in the city
19 of New York and the city of Staten Island.
20 § 10-006. Section 467-b of the real property tax law is amended by
21 adding a new subdivision 14 to read as follows:
22 14. For the purposes of this section, the city of Staten Island shall
23 continue to be treated as a city with a population of one million or
24 more and any reference to a local law enacted pursuant to the local
25 emergency housing rent control act shall also refer to the successor
26 local law enacted by the city of Staten Island.
27 § 10-007. The real property tax law is amended by adding a new section
28 498 to read as follows:
29 § 498. City of Staten Island. For the purposes of this article, the
30 city of Staten Island shall continue to be treated as a city with a
31 population of one million or more and the reference to any local law
32 applicable to the geographical area of such city prior to its incorpo-
33 ration shall be deemed to refer to the appropriate successor legislation
34 enacted by the city of Staten Island.
35 § 10-008. Applicability. It is the intention of the legislature that
36 the state and local laws regulating landlord-tenant relationships such
37 as legal regulated rents, maximum rents and tenancy issues shall contin-
38 ue to provide such regulation; provided, however, that within one
39 hundred twenty days after the date of establishment of the city of
40 Staten Island, the common council of such city must make a determination
41 of whether or not a public emergency exists requiring the continuation
42 of such regulations.
43 § 11-001. Legislative findings. The legislature recognizes that the
44 formation of the city of Staten Island was not contemplated in the
45 establishment of the constitutional real property tax limitations. To
46 the greatest extent practicable, the establishment of the city of Staten
47 Island is formulated to preserve existing local laws, regulations and
48 instrumentalities of government to preserve the status quo and prevent a
49 disruption of government injurious to the public good.
50 The unique factor which determined the establishment of the constitu-
51 tional real property tax limits for the city of New York was the inclu-
52 sion of counties wholly within the city with the city assuming the
53 responsibilities and expenditures for functions normally exercised by
54 the counties in areas outside the city of New York. Staten Island will
55 now share this unique factor with New York city, as the county of Rich-
56 mond is wholly contained within the city of Staten Island.
S. 8578 119
1 Real property located in cities outside the city of New York is
2 subject to a real property tax limit of four percent, of which two
3 percent is city tax and two percent is county tax. Real property located
4 within New York city is subject to a more restrictive real property tax
5 limit of two and one-half percent, all of which is city tax. County real
6 property tax is not permitted within the city of New York.
7 The people of the city of Staten Island and county of Richmond and the
8 New York state legislature have adopted a charter for the city of Staten
9 Island which continues the New York city form of government placing
10 governmental responsibility on the city rather than the county. The
11 county of Richmond has not assumed new responsibilities justifying an
12 interpretation of the constitutional real property tax limits which
13 would permit the county of Richmond to impose a real property tax. Like-
14 wise the maintenance of the New York city form of government with the
15 usual county responsibilities being a function of city government when
16 combined with the prohibition of a county real property tax, requires an
17 interpretation providing a city real property tax limit of two and one-
18 half percent for the city of Staten Island.
19 Therefore the legislature finds and declares that the existing more
20 restrictive real property tax limits for real property located within
21 the county of Richmond remain in effect, providing a city real property
22 tax limit of two and one-half percent for the city of Staten Island and
23 prohibiting the imposition of a real property tax by the county of Rich-
24 mond.
25 § 12-001. Subdivision (a) of section 1107 of the tax law, as amended
26 by section 1 of part C of chapter 407 of the laws of 1999, is amended to
27 read as follows:
28 (a) General. On the first day of the first month following the month
29 in which a municipal assistance corporation is created under article ten
30 of the public authorities law for a city of one million or more, in
31 addition to the taxes imposed by sections eleven hundred five and eleven
32 hundred ten, there is hereby imposed on such date, within the territo-
33 rial limits of such city (including, in the case of the municipal
34 assistance corporation for the city of New York, the city of Staten
35 Island), and there shall be paid, additional taxes, at the rate of four
36 percent, which except as provided in subdivision (b) of this section,
37 shall be identical to the taxes imposed by sections eleven hundred five
38 and eleven hundred ten. Such sections and the other sections of this
39 article, including the definition and exemption provisions, shall apply
40 for purposes of the taxes imposed by this section in the same manner and
41 with the same force and effect as if the language of those sections had
42 been incorporated in full into this section and had expressly referred
43 to the taxes imposed by this section.
44 § 12-002. Subdivision (c) of section 1107 of the tax law, as amended
45 by chapter 588 of the laws of 2000, is amended to read as follows:
46 (c) Tax on sale of service of parking, garaging or storing of motor
47 vehicles. On the first day of the first month following the month in
48 which a municipal assistance corporation is created under article ten of
49 the public authorities law for a city of one million or more, in addi-
50 tion to the taxes imposed by sections eleven hundred five, eleven
51 hundred ten and subdivision (a) of this section, there is hereby imposed
52 on such date, within the territorial limits of such city (including, in
53 the case of the municipal assistance corporation for the city of New
54 York, the city of Staten Island), and there shall be paid, additional
55 taxes at the rate of six percent on receipts from every sale of the
56 service of providing parking, garaging or storing for motor vehicles by
S. 8578 120
1 persons operating a garage (other than a garage which is part of prem-
2 ises occupied solely as a private one or two family dwelling), parking
3 lot or other place of business engaged in providing parking, garaging or
4 storing of motor vehicles provided, however, that this subdivision shall
5 not apply to such facilities owned and operated by such city or an agen-
6 cy or instrumentality of such city or a public corporation the majority
7 of whose members are appointed by the chief executive officer of such
8 city or the legislative body of such city or both of them; provided,
9 however, that receipts for such services paid to a homeowner's associ-
10 ation by its members or receipts paid by members of a homeowner's asso-
11 ciation to a person leasing the parking facility from the homeowner's
12 association shall not be subject to the tax imposed by this subdivision.
13 For purposes of this subdivision, a homeowner's association is an asso-
14 ciation (including a cooperative housing or apartment corporation) (i)
15 the membership of which is comprised exclusively of owners or residents
16 of residential dwelling units, including owners of units in a condomin-
17 ium, and including shareholders in a cooperative housing or apartment
18 corporation, where such units are located in a defined geographical area
19 such as a housing development or subdivision; and (ii) which owns or
20 operates a garage, parking lot or other place of business engaged in
21 providing parking, garaging or storing for motor vehicles located in
22 such area for use (whether or not exclusive) by such owners or resi-
23 dents. All provisions set forth in this article applicable to the taxes
24 imposed under section eleven hundred five, including the definition and
25 exemption provisions of this article, shall apply with respect to a tax
26 imposed under this subdivision, except as to rate and except as other-
27 wise provided herein. The transitional provisions contained in section
28 eleven hundred six shall not apply to the taxes imposed by this section.
29 § 12-003. Intentionally omitted.
30 § 12-004. Section 1210 of the tax law is amended by adding two new
31 subdivisions (k) and (l) to read as follows:
32 (k) In the case of the municipal assistance corporation for the city
33 of New York the power of the city of Staten Island to adopt and amend
34 local laws, ordinances or resolutions imposing taxes pursuant to the
35 authority of such section shall, notwithstanding any provisions of arti-
36 cle twenty-nine of this chapter to the contrary, be suspended until all
37 the notes and bonds of such municipal assistance corporation shall have
38 been fully paid and discharged together with interest on unpaid install-
39 ments of interest.
40 (l) Notwithstanding the provisions of subdivision (k) of this section,
41 the city of Staten Island is hereby authorized and empowered to adopt
42 and amend local laws, imposing taxes, at a rate not to exceed two
43 percent on the receipts of sales from the services of laundering, dry-
44 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining,
45 and charges to a patron for admission to, or use of, facilities for
46 sporting activities in which the patron is to be a participant such as
47 bowling alleys and swimming pools. Such taxes shall be administered,
48 collected and distributed by the state tax commission as provided in
49 subpart B of part three and in part four of this article.
50 § 12-005. Subdivisions 3 and 4 of section 92-d of the state finance
51 law, subdivision 3 as amended by section 4 of part A of chapter 88 of
52 the laws of 2000 and subdivision 4 as amended by section 11 of part SS1
53 of chapter 57 of the laws of 2008, are amended to read as follows:
54 3. The taxes, interest and penalties imposed, pursuant to sections
55 eleven hundred seven or eleven hundred eight (as the case may be) of the
56 tax law within the territorial limits of a city in aid of which a munic-
S. 8578 121
1 ipal assistance corporation has been created (including, in the case of
2 the municipal assistance corporation for the city of New York, the city
3 of Staten Island), and received by the commissioner of taxation and
4 finance, after deducting the amount which the commissioner of taxation
5 and finance shall determine to be necessary for reasonable costs of the
6 commissioner of taxation and finance in administering, collecting and
7 distributing such taxes, shall be appropriated (i) to the municipal
8 assistance corporation which has been created in aid of such city in
9 order to enable such corporation to fulfill the terms of any agreements
10 made with the holders of its notes and bonds and to carry out its corpo-
11 rate purposes, including the maintenance of the capital reserve fund,
12 and (ii) the balance, if any, to the city in aid of which such corpo-
13 ration has been created, or to a public benefit corporation to which the
14 tax may be otherwise payable pursuant to law, as hereinafter provided.
15 Notwithstanding the provisions of this subdivision, in the case of the
16 municipal assistance corporation for the city of New York, such balance,
17 if any, shall be divided between the city of New York and the city of
18 Staten Island and paid, as hereinafter provided.
19 4. On or before the twelfth day of each month, the commissioner of
20 taxation and finance shall certify to the comptroller the amount of all
21 revenues so received during the prior month as a result of the taxes,
22 interest and penalties so imposed and in addition on or before the last
23 day of June the commissioner shall certify the amount of such revenues
24 received during and including the first twenty-five days of June. In
25 the case of the municipal assistance corporation for the city of New
26 York, the commissioner of taxation and finance shall certify separately
27 the amounts of such revenues received from within the territorial limits
28 of the city of New York and the territorial limits of the city of Staten
29 Island. The amount of revenues so certified shall be deposited by the
30 comptroller in the municipal assistance tax fund and the amount attrib-
31 utable to the taxes, interest and penalties imposed within the territo-
32 rial limits of a city in aid of which a municipal assistance corporation
33 has been created including, in the case of the municipal assistance
34 corporation for the city of New York, the city of Staten Island shall be
35 credited to a special account established in such fund for such corpo-
36 ration. Notwithstanding the foregoing provisions, the commissioner of
37 taxation and finance may prorate revenue attributable to the first or
38 last quarterly return period during which the taxes imposed by section
39 eleven hundred seven or eleven hundred eight (as the case may be) of the
40 tax law apply so as to separate from the revenue collected for that
41 quarter pursuant to such taxes the revenue collected pursuant to local
42 legislation adopted by a city pursuant to section twelve hundred ten or
43 twelve hundred twelve-A of the tax law. Such a proration by the commis-
44 sioner of taxation and finance shall be made on the basis of the ratio
45 of the number of months during which such taxes were imposed during such
46 quarterly return period to the total number of months in such quarterly
47 return period when such proration is reasonably necessary to ascertain
48 the amount of such money which must be deposited by the comptroller in
49 such special account and the amount of such money which must be deposit-
50 ed pursuant to section twelve hundred sixty-one of the tax law. The
51 commissioner of taxation and finance shall not be held liable for any
52 inaccuracy in any certification under this subdivision.
53 § 12-006. Subdivision 6 of section 92-d of the state finance law, as
54 amended by section 4 of part A of chapter 88 of the laws of 2000, is
55 amended to read as follows:
S. 8578 122
1 6. Upon receipt by the comptroller of a certificate or certificates
2 from the [chairman] chairperson of a municipal assistance corporation
3 that such corporation requires a payment or payments in order to comply
4 with any agreement with the holders of its notes and bonds and to carry
5 out its corporate purposes, including the maintenance of the capital
6 reserve fund, from the special account established for such corporation,
7 each of which certificates shall specify the required payment or
8 payments and the date when the payment or payments is required, the
9 comptroller shall pay from such special account on or before the speci-
10 fied date or within thirty days after such receipt, whichever is later,
11 to such corporation, as the [chairman] chairperson thereof may direct in
12 any such certificate, the amount or amounts so certified. In the case
13 of the municipal assistance corporation for the city of New York, each
14 amount so paid shall be comprised of revenues attributable to receipts
15 from both the city of New York and the city of Staten Island in the same
16 proportion that such revenues were received during the period covered by
17 each such certification. The [chairman] chairperson of such corporation
18 shall furnish the commissioner of taxation and finance with copies of
19 such certificates. The comptroller shall from time to time, but in no
20 event later than the fifteenth day of October, January and April and the
21 last day of June of each fiscal year, pay over and distribute to the
22 chief fiscal officer of the city in aid of which such municipal assist-
23 ance corporation has been created to be paid into the treasury of such
24 city to the credit of the general fund, or pay over and distribute to a
25 public benefit corporation to which the tax may otherwise be payable
26 pursuant to law, all revenues in the special account established for
27 such corporation in the municipal assistance tax fund, if any, in excess
28 of the aggregate amount which the [chairman] chairperson of such corpo-
29 ration has certified to the comptroller and which has been previously
30 appropriated and paid to such corporation as hereinabove authorized.
31 Notwithstanding the provisions of this subdivision, in the case of the
32 municipal assistance corporation for the city of New York, the comp-
33 troller shall from time to time, but in no event later than the
34 fifteenth of October, January, and April and the last day of June of
35 each fiscal year, (a) apportion between the city of New York and the
36 city of Staten Island the revenues, if any, in the special account
37 established for such corporation in the municipal assistance tax fund on
38 the basis of the locus of their receipt and (b) pay over and distribute
39 to the chief fiscal officers of such cities to pay into their respective
40 treasuries to the credit of the general fund all such respective reven-
41 ues in excess of the aggregate amount which the chairperson of such
42 corporation has certified to the comptroller and which has been previ-
43 ously appropriated and paid to such corporation as hereinabove author-
44 ized. In no event shall the comptroller pay over and distribute any
45 revenues (other than the amount to be deducted for administering,
46 collecting and distributing such sales and compensating use taxes) to
47 any person other than the municipal assistance corporation unless and
48 until the aggregate of all payments certified to the comptroller as
49 required by such corporation as of such date in order to comply with its
50 agreements with the holders of its notes and bonds and to carry out its
51 corporate purposes, including the maintenance of the capital reserve
52 fund, which remain unappropriated or unpaid to such corporation shall
53 have been appropriated to such corporation and shall have been paid in
54 full; provided, however, that no person, including such corporation or
55 the holders of its notes or bonds shall have any lien on such revenues
56 and such agreement shall be executory only to the extent of such reven-
S. 8578 123
1 ues available to the state in such special account. On the day on which
2 the comptroller pays over and distributes to the chief fiscal officer of
3 such city or cities any revenues from such special account the commis-
4 sioner of taxation and finance shall certify to the comptroller the
5 amount to be deducted for administering, collecting and distributing the
6 tax imposed pursuant to section eleven hundred seven or eleven hundred
7 eight (as the case may be) of the tax law within the territorial limits
8 of such city or cities since he or she last certified such amount and
9 the comptroller shall pay such amount into the general fund of the state
10 treasury to the credit of the state purposes fund therein.
11 § 12-007. Subdivision 3 of section 92-e of the state finance law, as
12 amended by chapter 187 of the laws of 1995, is amended to read as
13 follows:
14 3. Such amounts, including per capita aid apportioned to a city in aid
15 of which a municipal assistance corporation has been created (including,
16 in the case of the municipal assistance corporation for the city of New
17 York, the city of Staten Island), shall be deposited by the comptroller
18 to the credit of the special account established for the municipal
19 assistance corporation which has been created in aid of such city in
20 order to enable such corporation to fulfill the terms of any agreements
21 made with the holders of its notes and bonds and to carry out its corpo-
22 rate purposes, including the maintenance of the capital reserve fund
23 securing such bonds and notes, and, subject to the provisions of section
24 fifty-four of this chapter, and subdivisions five and five-a of this
25 section, the balance, if any, shall be paid to the chief fiscal officer
26 of the city in aid of which such corporation has been created as herein-
27 after provided. Notwithstanding the provisions of this subdivision, in
28 the case of the municipal assistance corporation for the city of New
29 York, such balance, if any, shall be divided between the city of New
30 York and the city of Staten Island and paid, as hereinafter provided.
31 § 12-008. Subdivision 5 of section 92-e of the state finance law, as
32 amended by chapter 55 of the laws of 1992, is amended to read as
33 follows:
34 5. Upon receipt by the comptroller of a certificate or certificates
35 from the [chairman] chairperson of a municipal assistance corporation
36 that such corporation requires a payment or payments in order to comply
37 with any agreement with the holders of its notes and bonds and to carry
38 out its corporate purposes, including the maintenance of the capital
39 reserve fund securing such bonds, from the appropriate special account
40 established for such corporation, each of which certificates shall spec-
41 ify the required payment or payments and the date when the payment or
42 payments is required, the comptroller shall pay from such special
43 account on or before the specified date or within thirty days after
44 receipt of such certificate or certificates, whichever is later, to such
45 corporation, as the [chairman] chairperson thereof may direct in any
46 such certificate, the amount or amounts so certified. In the case of
47 the municipal assistance corporation for the city of New York, each
48 amount so paid shall be comprised of per capita aid apportioned to the
49 city of New York and the city of Staten Island in the same proportion
50 that such amounts were so apportioned during the period covered by each
51 such certification. The comptroller shall from time to time, but in no
52 event later than the fifteenth day of October, January and April and the
53 last day of June of each fiscal year, pay over and distribute to the
54 chief fiscal officer of the city in aid of which such municipal assist-
55 ance corporation has been created to be paid into the treasury of such
56 city to the credit of the general fund all revenues in the special
S. 8578 124
1 account established for such corporation in the municipal assistance
2 state aid fund, if any, in excess of (i) the aggregate amount which the
3 [chairman] chairperson of such corporation has certified to the comp-
4 troller and which has been previously paid to such corporation as herein
5 above authorized, and (ii) amounts to be refunded to the general fund of
6 the state of New York pursuant to subdivision five-a of this section.
7 Notwithstanding the provisions of this subdivision, in the case of the
8 municipal assistance corporation for the city of New York, the comp-
9 troller shall from time to time, but in no event later than the
10 fifteenth of October, January and April and the last day of June of each
11 fiscal year, (a) apportion between the city of New York and the city of
12 Staten Island the revenues, if any, in the special account established
13 for such corporation in the municipal assistance state aid fund on the
14 basis of the amounts apportioned to each such city pursuant to section
15 fifty-four of this chapter and (b) pay over and distribute to the chief
16 fiscal officers of such cities to be paid into their respective treas-
17 uries to the credit of the general fund all such respective revenues in
18 excess of the aggregate amount which the chairperson of such corporation
19 has certified to the comptroller and which has been previously paid to
20 such corporation as hereinabove authorized. In no event shall the comp-
21 troller pay over and distribute any revenues to any person other than
22 the municipal assistance corporation unless and until the aggregate of
23 all payments certified to the comptroller as required by such corpo-
24 ration as of such date in order to comply with its agreements with the
25 holders of its notes and bonds and to carry out its corporate purposes,
26 including the maintenance of the capital reserve fund securing such
27 bonds, which remain unpaid to such corporation shall have been paid in
28 full to such corporation; provided, however, that no person, including
29 such corporation or the holders of its notes or bonds shall have any
30 lien on such revenues and such agreement shall be executory only to the
31 extent of such revenues available to the state in such special account.
32 § 12-009. Paragraph c of subdivision 6 of section 54 of the state
33 finance law, as added by chapter 430 of the laws of 1997, is amended to
34 read as follows:
35 c. Upon such certification of the amounts payable to counties, cities,
36 villages and towns for town-wide and town outside village purposes, such
37 per capita aid shall be apportioned and paid to the chief fiscal officer
38 of each such locality pursuant to this section on audit and warrant of
39 the state comptroller out of moneys appropriated by the legislature for
40 such purpose to the credit of the local assistance account in the gener-
41 al fund of the state treasury; provided however that upon such certif-
42 ication of amounts payable to the city of New York or, the city of
43 Staten Island, if applicable, such per capita aid shall be apportioned
44 and paid as follows: (i) any amounts required to be paid to the city
45 university construction fund pursuant to the city university
46 construction fund act, (ii) any amounts required to be paid to the New
47 York city housing development corporation pursuant to the New York city
48 housing development corporation act, (iii) any amounts required to be
49 paid by the city to the New York city transit authority pursuant to the
50 provisions of chapter seven of the laws of nineteen hundred seventy-two,
51 (iv) any amounts required to be paid by the city to the state to repay
52 an advance made in nineteen hundred seventy-four to subsidize the fare
53 of the New York city transit authority, (v) five hundred thousand
54 dollars to the chief fiscal officer of the city of New York for payment
55 to the trustees of the police pension fund of such city pursuant to the
56 provisions of paragraph e of this subdivision, (vi) eighty million
S. 8578 125
1 dollars to the special account for the municipal assistance corporation
2 for the city of New York in the municipal assistance tax fund created
3 pursuant to section ninety-two-d of this chapter to the extent that such
4 amount has been included by the municipal assistance corporation for the
5 city of New York in any computation for the issuance of bonds on a pari-
6 ty with outstanding bonds pursuant to a contract with the holders of
7 such bonds prior to the issuance of any other bonds secured by payments
8 from the municipal assistance state aid fund created pursuant to section
9 ninety-two-e of this chapter, (vii) the balance to the special account
10 for the municipal assistance corporation for the city of New York in the
11 municipal assistance state aid fund created pursuant to section ninety-
12 two-e of this chapter, and (viii) any amounts to be refunded to the
13 general fund of the state of New York pursuant to the annual appropri-
14 ation enacted for the municipal assistance state aid fund. Notwithstand-
15 ing any existing law, no payments of per capita aid payable to the city
16 of New York shall be paid to the state of New York municipal bond bank
17 agency, the New York state sports authority or the transit construction
18 fund so long as amounts of such aid are required to be paid into the
19 municipal assistance state aid fund, and thereafter, after payment of
20 the amounts described in subparagraphs (i) through (viii) of this para-
21 graph the balance shall be paid (A) to the state in repayment of the
22 appropriation of two hundred fifty million dollars made to the city
23 pursuant to chapter two hundred fifty-seven of the laws of nineteen
24 hundred seventy-five providing emergency financial assistance to the
25 city of New York at the extraordinary session held in such year, as
26 amended, (B) to the state of New York municipal bond bank agency to the
27 extent provided by section twenty-four hundred thirty-six of the public
28 authorities law, (C) to the New York state sports authority to the
29 extent provided by section twenty-four hundred sixty-three of the public
30 authorities law, (D) to the transit construction fund to the extent
31 provided by section twelve hundred twenty-five-i of the public authori-
32 ties law, and thereafter (E) to the city of New York.
33 § 12-010. Subparagraphs 1 and 2 of paragraph d of subdivision 6 of
34 section 54 of the state finance law, as added by chapter 430 of the laws
35 of 1997, are amended to read as follows:
36 (1) to the city of New York and the city of Staten Island, on the
37 twenty-fifth days of April, June, October and February;
38 (2) to every county, city, village or town, other than the city of
39 New York and the city of Staten Island, whose fiscal year commences on
40 the first day of June or July, on the twenty-fifth days of April, May,
41 September and December;
42 § 12-011. Subdivisions 1 and 2 of section 3034 of the public authori-
43 ties law, as added by chapter 169 of the laws of 1975, are amended to
44 read as follows:
45 1. The corporation shall be administered by a board of directors,
46 consisting of nine directors, none of whom shall be officers or employ-
47 ees of the federal government or of the state or political subdivisions
48 thereof. All of the directors shall be appointed by the governor with
49 the advice and consent of the senate, provided that four of such direc-
50 tors shall be appointed upon written recommendation of the mayor. Of
51 the directors initially appointed upon the written recommendation of the
52 mayor, one shall serve for a term ending December thirty-first, nineteen
53 hundred seventy-six; one shall serve for a term ending December thirty-
54 first, nineteen hundred seventy-seven; one shall serve for a term ending
55 December thirty-first, nineteen hundred seventy-eight; and one shall
56 serve for a term ending December thirty-first, nineteen hundred seven-
S. 8578 126
1 ty-nine. The provisions of this subdivision notwithstanding, of the
2 directors appointed upon the recommendation of the mayor, the director
3 whose term expires on the December thirty-first next preceding the
4 establishment of a city of Staten Island, and any successor thereto,
5 shall be appointed only upon the written recommendation of the mayor of
6 the city of Staten Island. Of the remaining directors initially
7 appointed by the governor, one shall serve for a term ending December
8 thirty-first, nineteen hundred seventy-six; one shall serve for a term
9 ending December thirty-first, nineteen hundred seventy-seven; one shall
10 serve for a term ending December thirty-first, nineteen hundred seven-
11 ty-eight; and two shall serve for a term ending December thirty-first,
12 nineteen hundred seventy-nine. Each director shall hold office until
13 his or her successor has been appointed and qualified. Thereafter each
14 director appointed by the governor shall serve a term of four years,
15 except that any director appointed to fill a vacancy shall serve only
16 until the expiration of his predecessor's term.
17 2. The speaker and the minority leader of the assembly, the president
18 pro-tem and the minority leader of the senate, the city board of esti-
19 mate acting by majority vote, [and] the [vice-chairman] vice-chairperson
20 of the city council, the comptroller of the city of Staten Island and
21 the common council of the city of Staten Island shall each be entitled
22 to appoint a representative to the board of directors. Each such
23 representative shall be entitled to receive notice of and to attend all
24 meetings of the board of directors but shall not be entitled to vote.
25 No representative shall be an employee or officer of the federal, state
26 or city governments. Each representative shall serve at the pleasure of
27 the appointing official or body, shall be eligible for reappointment,
28 and shall hold office until his or her successor has been appointed.
29 § 12-012. Subdivision 1 of section 3036 of the public authorities law,
30 as amended by chapter 201 of the laws of 1978, is amended to read as
31 follows:
32 1. Not less than one hundred twenty days before the beginning of each
33 fiscal year of the corporation (but not later than July 1, 1975 for the
34 fiscal year ending June 30, 1976), the [chairman] chairperson of the
35 board of directors of the corporation shall certify to the state comp-
36 troller and to the mayor a schedule setting forth the cash requirements
37 of the corporation for such fiscal year and the time or times when such
38 cash is required. The total amount so certified by such [chairman]
39 chairperson for such fiscal year shall be equal to: (i) the amounts
40 which are required to be deposited in the capital reserve fund author-
41 ized to be created and established pursuant to subdivision three of this
42 section during such fiscal year in order to maintain such capital
43 reserve fund of the corporation at the level required in accordance with
44 subdivision five of this section; (ii) the amounts required to be depos-
45 ited in the debt service fund of the corporation to pay all interest and
46 all payments of principal and redemption premium, if any, on notes and
47 bonds secured by such debt service fund maturing or otherwise coming due
48 during such fiscal year; and (iii) the amounts required to be deposited
49 in the operating fund of the corporation, as determined by the corpo-
50 ration, to meet the operating requirements and other expenses of the
51 corporation during such fiscal year. If any increase shall occur in the
52 cash requirements specified above, or if payments are required at a time
53 or times earlier than previously certified or if the city shall for any
54 reason fail to make timely payment of the principal and accrued interest
55 due on any obligation issued by the city to the corporation and maturing
56 within the same fiscal year, such [chairman] chairperson shall certify a
S. 8578 127
1 revised schedule of cash requirements for such fiscal year to the state
2 comptroller and to the mayor. The schedule accompanying each certif-
3 ication (or revision thereof) shall provide for such payment dates as
4 the corporation deems appropriate to assure that sufficient funds will
5 be available from the sources identified below to enable it to meet its
6 current obligations as they come due. Upon receipt of such certif-
7 ication, or any revision thereof, the state comptroller shall pay such
8 amount to the corporation for deposit in the appropriate funds, in
9 accordance with such certification from the special account established
10 for the corporation in the municipal assistance tax fund, in accordance
11 with subdivision one of section ninety-two-d of the state finance law,
12 including any amount transferred to the municipal assistance tax fund
13 from the stock transfer tax fund pursuant to subdivision four of section
14 [92-b] ninety-two-b of the state finance law. Any such payment shall
15 be made within thirty days of receipt of the certification or at the
16 time specified in the certification, whichever is later; provided that
17 any such amounts shall have been first appropriated by the state for
18 such purpose or shall have been otherwise made available. Any amount so
19 paid to the corporation shall be deducted from the amount otherwise
20 payable to the city or the city of Staten Island, as the case may be,
21 from the municipal assistance tax fund established by section ninety-
22 two-d of the state finance law and shall not obligate the state to make,
23 nor entitle the city or the city of Staten Island, as the case may be,
24 to receive, any additional payments.
25 § 12-013. Subdivision 1 of section 3036-a of the public authorities
26 law, as amended by chapter 55 of the laws of 1992, is amended to read as
27 follows:
28 1. In addition to the total amount certified by such [chairman] chair-
29 person for such fiscal year, all as referred to in subdivision one of
30 section three thousand thirty-six, the [chairman] chairperson shall at
31 the same time certify to the state comptroller and to the mayor a sched-
32 ule setting forth additional cash requirements of the corporation which
33 shall be equal to: (i) the amounts which are required to be deposited in
34 the capital reserve fund authorized to be created and established pursu-
35 ant to subdivision two of this section (in this section called the capi-
36 tal reserve fund) during such fiscal year in order to maintain the capi-
37 tal reserve fund at the level required in accordance with subdivision
38 four of this section; (ii) the amounts required to be deposited in the
39 bond service fund of the corporation to pay all interest and all
40 payments of principal and redemption premium, if any, on notes and bonds
41 payable from the sources hereinafter identified in this section and
42 maturing or otherwise coming due during such fiscal year; and (iii) the
43 amounts required to be deposited in the operating fund of the corpo-
44 ration heretofore established, as determined by the corporation, to meet
45 the operating requirements and other expenses of the corporation during
46 such fiscal year. If any increase shall occur in such additional cash
47 requirements specified above, or if payments are required at a time or
48 times earlier than previously certified or if the city shall for any
49 reason fail to make timely payment of the principal and accrued interest
50 due on any obligation issued by the city to the corporation and maturing
51 within the same fiscal year, such [chairman] chairperson shall certify a
52 revised schedule of such additional cash requirements for such fiscal
53 year to the state comptroller and to the mayor. The schedule accompany-
54 ing each certification (or revision thereof) shall provide for such
55 payment dates as the corporation deems appropriate to assure that suffi-
56 cient funds will be available from the sources identified below to
S. 8578 128
1 enable it to meet its current obligations under this section as they
2 come due. Upon receipt of such certification, or any revision thereof,
3 the state comptroller shall pay such amount to the corporation for
4 deposit in the appropriate funds referred to in this section, in accord-
5 ance with such certification from the special account established for
6 the corporation in the municipal assistance state aid fund in accord-
7 ance with subdivision one of section ninety-two-e of the state finance
8 law and, subject to agreements with outstanding bond and note holders of
9 the corporation, from the special account established for the corpo-
10 ration in the municipal assistance tax fund, in accordance with subdivi-
11 sion one of section ninety-two-d of the state finance law, including any
12 amount transferred to the municipal assistance tax fund from the stock
13 transfer tax fund pursuant to subdivision four of section ninety-two-b
14 of the state finance law. Any such payment shall be made within thirty
15 days of receipt of the certification or at the time specified in the
16 certification, whichever is later; provided that any such amounts shall
17 have been first appropriated by the state for such purpose or shall have
18 been otherwise made available. Any amount paid to the corporation from
19 such municipal assistance state aid fund shall be deducted from the
20 amount otherwise payable to the city or the city of Staten Island, as
21 the case may be, as per capita aid pursuant to sections fifty-four and
22 ninety-two-e of the state finance law and shall not obligate the state
23 to make, nor entitle the city or the city of Staten Island, to receive,
24 any additional payments of per capita aid. Any amount so paid to the
25 corporation from the municipal assistance tax fund shall, in addition to
26 the amount deducted pursuant to subdivision one of section three thou-
27 sand thirty-six, be deducted from the amount otherwise payable to the
28 city or the city of Staten Island, as the case may be, from the munici-
29 pal assistance tax fund and shall not obligate the state to make, nor
30 entitle the city or the city of Staten Island to receive, any additional
31 payments from such municipal assistance tax fund.
32 § 12-014. Subdivision 1 of section 3036-b of the public authorities
33 law, as amended by chapter 55 of the laws of 1992, is amended to read as
34 follows:
35 1. In addition to the total amount certified by such [chairman] chair-
36 person for such fiscal year, all as referred to in subdivision one of
37 each of sections three thousand thirty-six and three thousand thirty-
38 six-a of this title, the [chairman] chairperson shall at the same time
39 certify to the state comptroller and to the mayor a schedule setting
40 forth additional cash requirements of the corporation which shall be
41 equal to: (i) the amounts required to be deposited in the bond payment
42 fund of the corporation to pay all interest and all payments of princi-
43 pal and redemption premium, if any, on bonds and notes payable from the
44 sources hereinafter identified in this section and maturing or otherwise
45 coming due during such fiscal year; (ii) the amounts required to be
46 deposited in the operating fund of the corporation heretofore estab-
47 lished, as determined by the corporation, to meet the operating require-
48 ments and other expenses of the corporation during such fiscal year to
49 the extent not otherwise provided for; and (iii) the amounts required to
50 be deposited in the bond reserve fund created and established pursuant
51 to the agreements of the corporation made with the holders of its bonds
52 or notes issued pursuant to subdivision two-b of section three thousand
53 thirty-three of this title during such fiscal year in order to maintain
54 the bond reserve fund at the level required in accordance with the
55 agreements of the corporation made with the holders of its bonds or
56 notes issued pursuant to subdivision two-b of section three thousand
S. 8578 129
1 thirty-three of this title. If any increase shall occur in such addi-
2 tional cash requirements specified above, or if payments are required at
3 a time or times earlier than previously certified or if the city shall,
4 for any reason, fail to make timely payment of the principal and accrued
5 interest due on any obligation issued by the city to the corporation and
6 maturing within the same fiscal year, such [chairman] chairperson shall
7 certify a revised schedule of such additional cash requirements for such
8 fiscal year to the state comptroller and to the mayor. The schedule
9 accompanying each certification, or revision thereof, shall provide for
10 such payment dates as the corporation deems appropriate to assure that
11 sufficient funds will be available from the sources identified below to
12 enable it to meet its current obligations under this section as they
13 come due. Upon receipt of such certification, or any revision thereof,
14 the state comptroller shall pay such amount to the corporation for
15 deposit in the appropriate funds referred to in this section, in accord-
16 ance with such certification and subject to agreements with holders of
17 outstanding bonds and notes of the corporation, from the special account
18 established for the corporation in the municipal assistance state aid
19 fund in accordance with subdivision one of section ninety-two-e of the
20 state finance law and from the special account established for the
21 corporation in the municipal assistance tax fund in accordance with
22 subdivision one of section ninety-two-d of the state finance law,
23 including any amount transferred to the municipal assistance tax fund
24 from the stock transfer tax fund pursuant to subdivision four of section
25 ninety-two-b of the state finance law. Any such payment shall be made
26 within thirty days of receipt of the certification or at the time speci-
27 fied in the certification, whichever is later; provided that any such
28 amounts shall have been first appropriated by the state for such purpose
29 or shall have been otherwise made available. Any amount paid to the
30 corporation from such municipal assistance state aid fund, in addition
31 to the amount deducted pursuant to subdivision one of section three
32 thousand thirty-six-a of this title, shall be deducted from the amount
33 otherwise payable to the city or the city of Staten Island, as the case
34 may be, as per capita aid pursuant to sections fifty-four and ninety-
35 two-e of the state finance law and shall not obligate the state to make,
36 nor entitle the city or the city of Staten Island to receive, any addi-
37 tional payments of per capita aid. Any amount so paid to the corporation
38 from the municipal assistance tax fund, in addition to the amount
39 deducted pursuant to subdivision one of each of section three thousand
40 thirty-six or three thousand thirty-six-a of this title, shall be
41 deducted from the amount otherwise payable to the city or the city of
42 Staten Island, as the case may be, from the municipal assistance tax
43 fund and shall not obligate the state to make, nor entitle the city or
44 the city of Staten Island to receive, any additional payments from such
45 municipal assistance tax fund.
46 § 12-015. Section 6 of section 2 of chapter 868 of the laws of 1975,
47 constituting the New York state financial emergency act for the city of
48 New York, subdivision 1 as amended by chapter 777 of the laws of 1978,
49 subdivision 3 as amended by chapter 869 of the laws of 1975 and subdivi-
50 sion 4 as amended by chapter 201 of the laws of 1978, is amended to read
51 as follows:
52 § 6. Administration of the board. 1. The membership of the board
53 shall be the governor, the state comptroller (pursuant to [his] such
54 official's authority to supervise the accounts of any political subdivi-
55 sion of the state), the mayor, the city comptroller, the mayor of the
56 city of Staten Island, the comptroller of the city of Staten Island, and
S. 8578 130
1 three members appointed by the governor with the advice and consent of
2 the senate. At least two of the appointed members shall be residents of
3 the city or have their principal place of business in the city. The
4 mayor of the city of Staten Island may recommend to the governor the
5 appointment of one such appointed member. Such appointed members shall
6 serve at the pleasure of the governor. The governor shall be the [chair-
7 man] chairperson of the board and the governor or [his] the governor's
8 representative shall preside over all meetings of the board. The board
9 shall act by majority vote of the entire board, provided, however, on
10 matters affecting only the city, as determined by the governor, the
11 state comptroller and the appointed members, the mayor of the city of
12 Staten Island and the comptroller of the city of Staten Island shall not
13 vote, and on matters affecting only the city of Staten Island, as deter-
14 mined by the governor, the state comptroller and the appointed members,
15 the mayor and the city comptroller shall not vote. Such officials not
16 voting shall not be considered members of the board for determining a
17 majority. The board shall maintain a record of its proceedings in such
18 form as it may determine, but such record shall indicate attendance and
19 all votes cast by each member. Every member of the board, who is other-
20 wise an elected official of the state or city, shall be entitled to
21 designate a representative to attend, in [his] such official's place,
22 meetings of the board and to vote or otherwise act in [his] such offi-
23 cial's behalf. Written notice of such designation shall be furnished to
24 the board by the designating member prior to any meeting attended by
25 [his] such official's representative. Any such representative shall
26 serve at the pleasure of the designating member. No such representative
27 shall be authorized to delegate any of [his] such representative's
28 duties or functions to any other person. The lieutenant governor,
29 temporary president of the senate, the minority leader of the senate,
30 speaker and minority leader of the assembly, the president of the coun-
31 cil of the city of New York, the city board of estimate acting by major-
32 ity vote, the speaker and the minority leader of the common council of
33 the city of Staten Island and the [vice-chairman] vice-chairperson and
34 the minority leader of the council of the city of New York, shall each
35 be entitled to appoint a representative to the board. Each such repre-
36 sentative shall be entitled to receive notice of and to attend all meet-
37 ings of the board but shall not be entitled to vote. No representative
38 shall be an employee or officer of the federal, state or city govern-
39 ments. Each representative shall serve at the pleasure of the appoint-
40 ing official or body, shall be eligible for reappointment, and shall
41 hold office until [his] such representative's successor has been
42 appointed.
43 2. Notwithstanding any inconsistent provisions of law, general,
44 special or local, no officer or employee of the state, or political
45 subdivision of the state, any governmental entity operating any public
46 school or college or other public agency or instrumentality or unit of
47 government which exercises governmental powers under the laws of the
48 state, shall forfeit [his] such person's office or employment by reason
49 of [his] such person's acceptance or appointment as a member, represen-
50 tative, officer, employee or agent of the board nor shall service as
51 such member, representative, officer, employee or agent of the board be
52 deemed incompatible or in conflict with such office or employment.
53 3. The members of the board appointed by the governor and all repre-
54 sentatives designated by members of the board shall serve without salary
55 or per diem allowance but shall be entitled to reimbursement for actual
56 and necessary expenses incurred in the performance of official duties
S. 8578 131
1 under this act, provided however that such members and representatives
2 are not, at the time such expenses are incurred, public employees other-
3 wise entitled to such reimbursement.
4 4. The governor and the mayor, jointly, shall appoint an executive
5 director of the board who shall serve at the pleasure of the board and
6 may be removed by the board. The board may delegate to the executive
7 director or to one or more of its other officers, employees or agents,
8 such powers and duties as the board may deem proper, except any duties
9 inconsistent with the duties and functions prescribed by any other
10 office or position any such person may hold.
11 § 12-016. Section 7 of section 2 of chapter 868 of the laws of 1975,
12 constituting the New York state financial emergency act for the city of
13 New York, paragraphs a, b, c, e, f and g of subdivision 1, paragraphs
14 (b) and (f) of subdivision 3 and subdivisions 4 and 6 as amended and
15 subdivision 7 as added by chapter 777 of the laws of 1978, paragraph h
16 of subdivision 1 as amended by chapter 870 of the laws of 1975, para-
17 graphs d and i of subdivision 1 as amended by chapter 830 of the laws of
18 1987, subdivisions 3 and 5 as added by chapter 201 of the laws of 1978,
19 and paragraph (i) of subdivision 3 as amended by chapter 285 of the laws
20 of 1985, is amended to read as follows:
21 § 7. Functions of the board. 1. In carrying out the purposes of this
22 act, the board shall perform the following functions:
23 a. In accordance with the provisions of section eight of this act, the
24 board shall (i) consult with the city and the covered organizations and
25 to the extent it deems it necessary or appropriate to accomplish the
26 purposes of this act, the city of Staten Island, in the preparation of
27 the financial plan, and certify to the city the revenue estimates
28 approved therein, (ii) prescribe the form of the financial plan and the
29 supporting information required in connection therewith, and (iii) exer-
30 cise the rights of approval, disapproval and modification with respect
31 to the financial plan, including but not limited to the revenue esti-
32 mates contained therein.
33 b. The board, to the extent it deems it necessary or appropriate in
34 order to accomplish the purposes of this act, shall establish and adopt
35 procedures with respect to the (i) proper maintenance of the board fund,
36 (ii) the deposit and investment of revenues in such fund and (iii)
37 disbursement of monies from such fund.
38 c. The board shall, from time to time and to the extent it deems
39 necessary or appropriate in order to accomplish the purposes of this
40 act, (i) review the operations, management, efficiency and productivity
41 of such city operations and of such covered organizations or of the city
42 of Staten Island or portions thereof as the board may determine, and
43 make reports thereon; (ii) audit compliance with the financial plan in
44 such areas as the board may determine; (iii) recommend to the city, the
45 city of Staten Island and the covered organizations such measures relat-
46 ing to their operations, management, efficiency and productivity as it
47 deems appropriate to reduce costs and improve services so as to advance
48 the purposes of this act; and (iv) obtain information of the financial
49 condition and needs of the city, the city of Staten Island and the
50 covered organizations. Nothing herein shall diminish the powers of the
51 comptroller otherwise provided by law and the board may request the
52 assistance of the comptroller in performing the above functions.
53 d. The board (i) shall receive from the city and review the reports to
54 be prepared by or on behalf of the city pursuant to section seven-a;
55 (ii) shall receive from the city, the city of Staten Island and the
56 covered organizations and from the deputy comptroller, and shall review
S. 8578 132
1 such financial statements and projections, budgetary data and informa-
2 tion, and management reports and materials as the board deems necessary
3 or desirable to accomplish the purposes of this act; and (iii) shall
4 inspect, copy and audit such books and records of the city, the city of
5 Staten Island and the covered organizations as the board deems necessary
6 or desirable to accomplish the purposes of this act.
7 e. All contracts entered into by the city or any covered organization
8 and, to the extent the board deems necessary or desirable to accomplish
9 the purposes of this act, by the city of Staten Island must be consist-
10 ent with the provisions of this act and must comply with the require-
11 ments of the financial plan as approved by the board. With respect to
12 all contracts or other obligations to be entered into by the city or any
13 covered organization after October fifteenth, nineteen hundred seventy-
14 five, requiring the payment of funds or the incurring of costs by the
15 city or any covered organization:
16 (i) Within twenty days from the effective date of this act the mayor
17 shall present to the board proposed regulations respecting the catego-
18 ries and types of contracts and other obligations required to be
19 reviewed by the board pursuant to this subdivision [e]. Within thirty
20 days from the effective date of this act, the board shall approve or
21 modify and approve such proposed regulations or promulgate its own in
22 the event that such proposed regulations are not submitted to it within
23 the twenty days as provided for herein. Such regulations may thereafter
24 be modified by the board from time to time on not less than thirty days
25 notice to the mayor and the mayor may from time to time propose modifi-
26 cations to the board. Unless expressly disapproved or modified by the
27 board within thirty days from the date of submission by the mayor, any
28 such proposed regulations or modifications shall be deemed approved by
29 the board;
30 (ii) Prior to entering into any contract or other obligations subject
31 to review of the board under its regulations, the city or any covered
32 organization and, to the extent the board deems necessary or desirable
33 to accomplish the purposes of this act, the city of Staten Island shall
34 submit a copy of such contract or other obligation to the board accompa-
35 nied by an analysis of the projected costs of such contract or other
36 obligation and a certification that performance thereof will be in
37 accordance with the financial plan, all in such form and with such addi-
38 tional information as the board may prescribe. The board shall promptly
39 review the terms of such contract or other obligation and the supporting
40 information in order to determine compliance with the financial plan;
41 (iii) During a control period the board shall, by order, disapprove
42 any contract or other obligation reviewed by it only upon a determi-
43 nation that, in its judgment, the performance of such contract or other
44 obligation would be inconsistent with the financial plan and the city,
45 the city of Staten Island or covered organization shall not enter into
46 such contract or other obligation;
47 (iv) During a control period if the board approves the terms of a
48 reviewed contract or other obligation, the city or covered organization
49 and, to the extent the board deems necessary or desirable to accomplish
50 the purposes of this act, the city of Staten Island may enter into such
51 contract or other obligation upon the terms submitted to the board.
52 Failure of the board to notify the city, the city of Staten Island or
53 covered organization within thirty days (or such additional time not
54 exceeding thirty days as the board shall have notified the city or
55 covered organization, that it requires to complete its review and analy-
56 sis) after submission to it of a contract or other obligation that such
S. 8578 133
1 contract or other obligation has been disapproved shall be deemed to
2 constitute board approval thereof.
3 f. Upon submission thereof by the city, the board shall review the
4 terms of each proposed long-term and short-term borrowing by the city
5 and any covered organization to be effected during a control period but
6 after October fifteenth, nineteen hundred seventy-five, and no such
7 borrowing shall be made unless approved by the board. To the extent the
8 board deems necessary or desirable to accomplish the purposes of this
9 act, during a control period, the city of Staten Island shall submit and
10 the board shall review the terms of each proposed long-term and short-
11 term borrowing by the city of Staten Island and no such borrowing shall
12 be made unless approved by the board. Each such proposed borrowing by a
13 covered organization shall be submitted to the city by the covered
14 organization before it may be considered by the board. Not more than
15 thirty days after any such submission by a covered organization the city
16 shall transmit any such proposed terms of borrowing to the board togeth-
17 er with the certification of the city as to whether such proposed terms
18 of borrowing are in accordance with the financial plan and are consist-
19 ent with the objectives and purposes of this act. Any such submission
20 to the city shall be accompanied by a certification of the covered
21 organization that the terms thereof are in accordance with the financial
22 plan and are consistent with the objectives or purposes of this act. The
23 transmittal by the city to the board shall include a recommendation by
24 the city for the approval or disapproval of such proposed terms of
25 borrowing pursuant to the terms of this paragraph. In the event the
26 city does not make such transmittal within such thirty day period, such
27 covered organization may submit such proposed borrowing directly to the
28 board. The board shall disapprove any borrowing if it determines that
29 such borrowing is inconsistent with the financial plan or the objectives
30 or purposes of this act. The board shall consult and coordinate with the
31 municipal assistance corporation for the city of New York with respect
32 to borrowings of the city and any covered organization and shall receive
33 reports from the [muncipal] municipal assistance corporation for the
34 city of New York on its review of borrowings by the city. No covered
35 organizations shall be prohibited from issuing bonds or notes to pay
36 outstanding bonds or notes.
37 g. The board and the comptroller shall receive quarterly reports from
38 the city comptroller setting forth the debt service requirements on all
39 bonds and notes of the city and the covered organizations for the
40 following quarter, which reports shall be in such form and contain such
41 information as the board shall determine. Such reports shall be issued
42 no later than sixty days prior to the start of the quarter to which they
43 pertain and shall be updated immediately upon each issuance of bonds or
44 notes after the date of such report to reflect any change in debt
45 service requirements as a result of such issuance. The board also shall
46 receive from the city monthly and quarterly financial reports, which
47 reports shall be in such form and contain such information as the board
48 shall determine and shall be made available by the city to the public.
49 In order to avoid duplicative reports and reporting requirements, to the
50 extent that the city is required to submit monthly or quarterly finan-
51 cial reports to the department of the treasury pursuant to any agreement
52 or arrangement made in connection with federal guarantees of notes or
53 boards issued by the city or a state financing agency, copies of such
54 reports shall be submitted to the board in satisfaction of the monthly
55 and quarterly reporting requirements set forth above, together with such
56 additional information as the board may require. Each monthly and quar-
S. 8578 134
1 terly report herein required to be submitted to the board must indicate
2 any variance between actual and budgeted revenues, expenses or cash for
3 the period covered by such report. During a control period, to the
4 extent the board deems necessary or desirable to accomplish the purposes
5 of this act, the city of Staten Island shall be subject to the same
6 reporting requirements as the city.
7 h. The board shall issue, to the appropriate officials of the city,
8 the city of Staten Island and the covered organizations, such orders as
9 it deems necessary to accomplish the purposes of this act, including but
10 not limited to timely and satisfactory implementation of an approved
11 financial plan. Any order so issued shall be binding upon the official
12 to whom it was issued and failure to comply with such order shall
13 subject the official to the penalties described in section eleven of
14 this act.
15 i. The board shall coordinate with the municipal assistance corpo-
16 ration for the city of New York and the deputy comptroller with respect
17 to the performance of its review and monitoring of the revenues and
18 expenditures of the city and the covered organizations.
19 2. In the event of any default by the city on its outstanding bonds or
20 notes, and so long as such default has not been cured by the city, the
21 board may, any provisions of this act notwithstanding, take any action
22 that it is authorized to take pursuant to title six-A of article two of
23 the local finance law, and may direct the city to take any action that
24 the city is authorized to take under such law.
25 3. (a) Notwithstanding any provision of the New York City Collective
26 Bargaining Law, codified as chapter [fifty-four] three of title twelve
27 of the New York city administrative code, or any general or special law
28 to the contrary, any report or recommendation of an impasse panel
29 constituted pursuant to such chapter which provides for an increase in
30 wages or fringe benefits of any employee of the city or covered organ-
31 ization, in addition to considering any standard or factor required to
32 be considered by applicable law, including the standards enumerated in
33 section [1173-7.0] 12-311(c)(3)(b) of such chapter, shall also take into
34 consideration and accord substantial weight to the financial ability of
35 the city and or covered organization to pay the cost of such increase in
36 wages or fringe benefits.
37 (b) The board of collective bargaining constituted pursuant to such
38 chapter, when reviewing such report or recommendation before proceeding
39 to other issues, shall make a threshold determination as to whether such
40 report or recommendation for an increase in wages or fringe benefits is
41 within the city's and or covered organization's financial ability to
42 pay. If the threshold determination is in the negative, the matter shall
43 be remitted to the impasse panel for further consideration. If the
44 threshold determination is in the affirmative, the further review of the
45 report or recommendation with respect to other issues, if any, shall
46 proceed as provided by law. Unless the parties stipulate otherwise, the
47 threshold determination shall be made within thirty days after
48 submission of the report or recommendation to the board of collective
49 bargaining.
50 (c) Any determination pursuant to article eight of the labor law or
51 any agreement or stipulation entered into in lieu thereof which provides
52 for an increase in wages or fringe benefits of any employee of the city
53 or covered organization shall, in addition to considering any standard
54 or factor required to be considered by applicable law, also take into
55 consideration and accord substantial weight to the financial ability of
56 the city and or covered organization to pay the cost of such increase.
S. 8578 135
1 (d) Any report or recommendation of a fact finding or similar type
2 panel or any interest arbitration award which provides for an increase
3 in wages or fringe benefits of any employee of the city or covered
4 organization not subject to the provisions of the New York City Collec-
5 tive Bargaining Law, codified as chapter [fifty-four] three of title
6 twelve of the New York city administrative code, shall, in addition to
7 considering any standard or factor required to be considered by applica-
8 ble law, also take into consideration and accord substantial weight to
9 the financial ability of the city and or covered organization to pay the
10 cost of such increase.
11 (e) Any party to a proceeding before the board of collective bargain-
12 ing as described in paragraph (b) or other body as described in para-
13 graphs (c) or (d) [hereof] of this subdivision may commence a special
14 proceeding in the appellate division, first department, supreme court,
15 state of New York, to review the threshold determination as to the city
16 and/or covered organization's financial ability to pay. Such proceeding
17 shall be commenced not later than thirty days after the final determi-
18 nation has been made by the board of collective bargaining in the case
19 of paragraph (b) or other body in the case of paragraphs (c) or (d) of
20 this subdivision. Such proceeding shall have preference over all other
21 causes in such appellate division, other than causes relating to the
22 election law.
23 (f) The court shall make a de novo review of the record solely for the
24 purpose of determining whether an award of an increase in wages or
25 fringe benefits was within the city's and or covered organization's
26 financial ability to pay. The court's findings as to such issue shall be
27 based upon a preponderance of all the evidence set forth in the record.
28 Unless the parties stipulate otherwise, arguments or submission shall be
29 had within fifteen days after commencement of the special proceeding and
30 the court shall render its decision within fifteen days thereafter. All
31 questions, other than the question relating to the threshold determi-
32 nation, shall be reviewed by the appellate division in the same proceed-
33 ing in the manner provided by articles seventy-five or seventy-eight of
34 the civil practice law and rules as may be appropriate, notwithstanding
35 that the issue would otherwise have been cognizable in the first
36 instance before a special or trial term of the supreme court. If an
37 appeal shall otherwise lie from such determination of the appellate
38 division to the court of appeals, notice of such appeal shall be filed
39 within thirty days after the entry of the final order or judgment of the
40 appellate division if such appeal is of right or within ten days after
41 entry of an order granting leave to appeal and such appeal shall have
42 preference over all other appeals other than appeals relating to the
43 election law.
44 (g) At any stage of any proceeding under paragraphs (a), (b), (c), (d)
45 and (e) hereof or any appeal from an order or judgment therefrom, the
46 board may intervene as a party on the issue of the financial ability of
47 the city and or covered organization to pay the cost of an increase in
48 wages or fringe benefits.
49 (h) For the purposes of this subdivision, financial ability to pay
50 shall mean the financial ability of the city and or covered organization
51 to pay the cost of any increase in wages or fringe benefits without
52 requiring an increase in the level of city taxes existing at the time of
53 the commencement of a proceeding under paragraph (a), (c) or (d) hereof.
54 [(i) The provisions of this subdivision shall terminate on June thir-
55 tieth, nineteen hundred eighty-six.]
S. 8578 136
1 4. During a control period, except upon approval by the board in
2 accordance with the provisions of paragraph e or f of subdivision one of
3 this section, as the board shall determine, neither the city nor a
4 covered organization nor, to the extent the board deems necessary or
5 desirable to accomplish the purposes of this act, the city of Staten
6 Island shall enter any agreement or other arrangement, whether or not it
7 creates a debt of the city, the city of Staten Island or a covered
8 organization, pursuant to which the revenues or credit of the city or
9 the city of Staten Island may be directly or indirectly pledged, encum-
10 bered, committed or promised, contingently or otherwise, for the payment
11 of obligations of a public benefit corporation. Nothing in this subdivi-
12 sion shall limit the right of the city to comply with the provisions of
13 any existing agreement or other arrangement in respect of the obli-
14 gations of a public benefit corporation.
15 5. The board may employ such consultants as it may deem necessary to
16 assist it in performing its functions required under this act.
17 6. The board shall have the authority to make and execute agreements
18 and all other instruments which the board deems necessary for the exer-
19 cise of its powers and functions including, in connection with any
20 agreement by the federal government or any agency or instrumentality
21 thereof to guarantee the payment of the principal of or interest on
22 bonds or notes issued by the city or by a state financing agency, to
23 enter into one or more agreements containing terms and conditions
24 required by the secretary of the treasury pursuant to the New York City
25 Loan Guarantee Act of l978, Public Law 95-339 with the federal govern-
26 ment or any agency or instrumentality thereof with respect to such guar-
27 antee or any matters related thereto and to comply with such terms and
28 conditions.
29 7. The board may appoint qualified individuals to participate as
30 members of such audit, productivity or similar committees or councils as
31 the city may from time to time establish in consultation with the board.
32 Such individuals, however, shall not be deemed to be officers, employees
33 or agents of the board. The board shall review and report on, not less
34 than annually, the development and implementation of methods for enhanc-
35 ing the productivity of the city's labor force proposed by any such
36 committee or council.
37 § 12-017. Section 8 of section 2 of chapter 868 of the laws of 1975,
38 constituting the New York state financial emergency act for the city of
39 New York, subdivisions 1, 2, 4, 5 and 6 as amended by chapter 201 of the
40 laws of 1978, the opening paragraph and paragraph c of subdivision 1,
41 subdivisions 2-a and 3 as amended by chapter 777 of the laws of 1978,
42 paragraph a of subdivision 1 as amended by chapter 118 of the laws of
43 2020, is amended to read as follows:
44 § 8. Development of the financial plan. 1. Pursuant to the proce-
45 dures contained in subdivision three of this section, each year the
46 city and to the extent the board deems necessary or desirable to accom-
47 plish the purposes of this act, the city of Staten Island shall develop,
48 and may from time to time modify, with the approval of the board during
49 a control period, a four year financial plan covering the city and the
50 covered organizations or the city of Staten Island, as applicable.
51 Each such financial plan and financial plan modification shall comply
52 with the requirements of subdivision four of this section and shall,
53 except as otherwise provided pursuant to subdivision two-a of this
54 section, conform to the following standards:
55 a. For its fiscal years ending June thirtieth, nineteen hundred seven-
56 ty-nine through June thirtieth, nineteen hundred eighty-one, the city's
S. 8578 137
1 budget covering all expenditures other than capital items shall be
2 prepared and balanced so that the results thereof would not show a defi-
3 cit when reported in accordance with the accounting principles set forth
4 in the state comptroller's uniform system of accounts for munici-
5 palities, as the same may be modified by the comptroller, in consulta-
6 tion with the city comptroller, for application to the city; subject to
7 the provision of subdivision four of section three thousand thirty-eight
8 of the public authorities law with respect to contributions by the city
9 or other public employer to any retirement system or pension fund and
10 subject to the provision of paragraph (c) of subdivision five of section
11 three thousand thirty-eight of the public authorities law with respect
12 to expense items included in the capital budget of the city. For the
13 fiscal year ending June thirtieth, nineteen hundred eighty-two, and for
14 each fiscal year thereafter, the city's budget covering all expenditures
15 other than capital items shall be prepared and balanced so that the
16 results thereof would not show a deficit when reported in accordance
17 with generally accepted accounting principles and would permit compar-
18 ison of the budget with the report of actual financial results prepared
19 in accordance with generally accepted accounting principles. With
20 respect to financial plans that include the fiscal years ending June
21 thirtieth, nineteen hundred seventy-nine through June thirtieth, nine-
22 teen hundred eighty-one, the city's budget covering all expenditures
23 other than capital items shall be prepared in accordance with generally
24 accepted accounting principles and there shall be substantial progress
25 in each such fiscal year towards achieving a city budget covering all
26 expenditures other than capital items the results of which would not
27 show a deficit when reported in accordance with generally accepted
28 accounting principles. The city shall eliminate expense items from its
29 capital budget not later than the commencement of the fiscal year ending
30 June thirtieth, nineteen hundred eighty-two. For the fiscal year ending
31 June thirtieth, nineteen hundred eighty-nine, and for each fiscal year
32 thereafter, the budgets covering all expenditures other than capital
33 items of each of the covered organizations shall be prepared and
34 balanced so that the results thereof would not show a deficit when
35 reported in accordance with generally accepted accounting principles;
36 and for each fiscal year prior thereto, there shall be substantial
37 progress towards such goal. Notwithstanding the foregoing and the
38 provisions of any general or special state law or local law to the
39 contrary, including but not limited to the New York city charter: (i)
40 all costs that would be capital costs in accordance with generally
41 accepted accounting principles, but for the application of governmental
42 accounting standards board statement number forty-nine, shall be deemed
43 to be capital costs for purposes of this act and any other provision of
44 state or local law, including but not limited to the New York city char-
45 ter, relevant to the treatment of such costs; and (ii) the determination
46 as to the existence of a deficit pursuant to this act and any other
47 provision of state or local law, including but not limited to the New
48 York city charter, shall be made without regard to changes in restricted
49 fund balances, as defined by the governmental accounting standards
50 board, where restrictions in relation to such fund balances are imposed
51 by state or federal law or regulation, or otherwise by private or
52 governmental parties other than the city of New York, and without regard
53 to funds held in the health stabilization fund, the school crossing
54 guards health insurance fund, any revenue stabilization fund established
55 pursuant to section fifteen hundred twenty-eight of the New York city
56 charter and the management benefits fund established by the city of New
S. 8578 138
1 York. Deposits into any such revenue stabilization fund shall be deemed
2 to be expenses of such city in the fiscal year in which such deposits
3 are made, and withdrawals from such fund shall be deemed to be revenues
4 of such city in the year in which such withdrawals are made; provided
5 however, that surpluses of such city, whether accumulated from fiscal
6 years ending prior to the effective date of the chapter of the laws of
7 two thousand twenty that amended this paragraph or existing at the close
8 of any fiscal year ending after such effective date, shall be deposited
9 into such revenue stabilization fund as soon as practicable, and such
10 deposits shall not be deemed expenses of the city in the fiscal year in
11 which such deposits are made.
12 b. The limitations on its outstanding short-term obligations required
13 by subdivision nine of section three thousand thirty-eight of the public
14 authorities law and by section nine-b of this act shall be observed at
15 all times, as each is amended from time to time.
16 c. Provision shall be made for the payment in full of the debt
17 service on all bonds and notes of the city and the covered organizations
18 (other than notes held by the municipal assistance corporation for the
19 city of New York to the extent that such corporation has evidenced its
20 intention not to present such notes for payment during the fiscal year
21 in which the determination is made provided that such notes were held by
22 such corporation on June thirtieth, nineteen hundred seventy-eight or
23 were issued in exchange for or in refunding or renewal of notes held by
24 such corporation on such date) and to the extent the board deems neces-
25 sary or desirable to accomplish the purposes of this act, the city of
26 Staten Island, for the adequate funding of programs of the city, the
27 city of Staten Island, if applicable and the covered organizations which
28 are mandated by state or federal law and for which obligations are going
29 to be incurred during the fiscal year and for payment of a guarantee fee
30 or any other amounts required by the United States of America or any
31 agency or instrumentality thereof in connection with the guarantee of
32 the payment of the principal of or interest on bonds or notes issued by
33 the city.
34 d. All projections of revenues and expenditures contained in a finan-
35 cial plan shall be based on reasonable and appropriate assumptions and
36 methods of estimation. All cash flow projections shall be based upon
37 reasonable and appropriate assumptions as to sources and uses of cash
38 (including but not limited to the timing thereof), and shall provide for
39 operations of the city, the city of Staten Island, if applicable and
40 covered organizations to be conducted within the cash resources so
41 projected.
42 e. The city shall provide a general reserve for each fiscal year to
43 cover potential reductions in its projected revenues or increases in its
44 projected expenditures during each such fiscal year. The amount
45 provided for such general reserve shall be estimated by the city in
46 accordance with paragraph d of this subdivision, but in no event shall
47 it be less than one hundred million dollars at the beginning of any
48 fiscal year.
49 f. For financial plans beginning with the fiscal year ending June
50 thirtieth, nineteen hundred eighty-three or any succeeding fiscal year,
51 the first fiscal year included in any financial plan shall make
52 provision for the repayment of any deficit incurred by the city during
53 the preceding fiscal year.
54 2. In developing the financial plan the city shall seek to achieve a
55 stabilized work force for the city and, to the extent a reduction in the
S. 8578 139
1 work force is required, primary recourse shall be had to the attrition
2 process to accomplish such reduction.
3 2-a. The city and the board shall confer concerning the projected
4 effect on the budgets of the city and the covered organizations of any
5 change in generally accepted accounting principles, or change in the
6 application of generally accepted accounting principles to the city and
7 the covered organizations, made after the effective date of this act.
8 If the board determines that immediate compliance with such change will
9 have a material effect on such budgets over a time period insufficient
10 to accommodate the effect without a substantial adverse impact on the
11 delivery of essential services, the board may authorize and approve a
12 method of phasing the requirements of such change into such budgets over
13 such reasonably expeditious time period as the board deems appropriate.
14 3. The financial plan shall be developed and, during a control peri-
15 od, shall be approved, and may from time to time be modified, in accord-
16 ance with the following procedures:
17 a. The city shall, by June first, nineteen hundred seventy-eight,
18 prepare and submit a financial plan to the board covering the four year
19 period which begins with the fiscal year ending June thirtieth, nineteen
20 hundred seventy-nine. Thereafter, at least fifty days prior to the
21 beginning of each fiscal year or on such other date as the board may
22 approve upon the request of the city or the city of Staten Island, if
23 applicable, the city, and, during a control period, to the extent the
24 board deems necessary or desirable to accomplish the purposes of this
25 act, the city of Staten Island shall prepare and submit a financial plan
26 to the board covering the four year period beginning with such fiscal
27 year. On such dates the mayor shall also submit to the board the city's
28 executive expense, revenue and capital budgets for the ensuing fiscal
29 year and a certificate of the mayor stating that such budgets are
30 consistent with the financial plan submitted therewith, that projections
31 contained in the budgets and financial plan are based upon reasonable
32 and appropriate assumptions and methods of estimation, and that opera-
33 tion within the budgets is feasible.
34 b. (i) During a control period the board shall promptly review each
35 financial plan and financial plan modification submitted by the city or,
36 the city of Staten Island, if applicable. Not more than forty-five days
37 after submission of a financial plan or more than thirty days after
38 submission of a financial plan modification the board shall determine
39 whether the financial plan or financial plan modification is complete
40 and complies with the standards set forth in subdivision one of this
41 section and shall approve or disapprove the financial plan or financial
42 plan modification in accordance with the provisions of this section. If
43 the board determines that the financial plan or financial plan modifica-
44 tion is complete and complies with the standards set forth in subdivi-
45 sion one of this section, the board shall approve the financial plan or
46 financial plan modification. Upon making such determination the board
47 shall make a certification to the city or, the city of Staten Island, if
48 applicable, setting forth revenue estimates approved by the board in
49 accordance with such determination.
50 (ii) At all times other than during a control period the board shall
51 promptly review each financial plan and financial plan modification
52 submitted by the city. If the board determines after such review that
53 the financial plan or financial plan modification submitted by the city
54 is not in accordance with the standards set forth in subdivision one of
55 this section, the board shall promptly so notify the city and may take
56 such other action under this act as it deems appropriate.
S. 8578 140
1 c. The board shall disapprove a financial plan or financial plan
2 modification if during a control period it determines that the financial
3 plan or financial plan modification is incomplete or fails to comply
4 with the provisions of subdivision one of this section. In disapproving
5 a financial plan or a financial plan modification the board may order
6 that one or more of the following actions be taken:
7 (i) expenditures or reserves to assure availability of amounts
8 required for debt service requirements on all bonds and notes of the
9 city, the city of Staten Island, if applicable and the covered organiza-
10 tions or expenditures required for adequate funding of programs of the
11 city, the city of Staten Island, if applicable and the covered organiza-
12 tions mandated by state or federal law and for which obligations are
13 going to be incurred during the fiscal year, be increased to the levels
14 required to provide for their payment in full;
15 (ii) the revenue projections (or any item thereof) during any period
16 be adjusted to comply with the standards set forth in subdivision one of
17 this section; and
18 (iii) the aggregate expenditures projected for any period be reduced
19 to conform to revenue estimates certified by the board in order to
20 comply with the standards set forth in subdivision one of this section.
21 d. During a control period in the event that the city or the city of
22 Staten Island, if applicable shall, for any reason, fail to submit a
23 financial plan prior to the beginning of a fiscal year, as required by
24 paragraph a of this subdivision, or in the event that the board has not,
25 for any reason permitted under this act, approved a financial plan
26 submitted by the city or the city of Staten Island, if applicable prior
27 to the beginning of a fiscal year, the board shall formulate and adopt a
28 financial plan to be effective until the board approves a financial plan
29 submitted by the city or the city of Staten Island, if applicable. Any
30 financial plan so formulated by the board shall comply with the stand-
31 ards set forth in subdivision one of this section. The budgets and
32 operations of the city or the city of Staten Island, if applicable and
33 the covered organizations at all times shall be in conformance and
34 compliance with the respective financial plan then in effect.
35 e. After the initial adoption by the city, or the approval by the
36 board during a control period, or, during a control period, to the
37 extent the board deems necessary or desirable to accomplish the purposes
38 of this act, the initial adoption by the city of Staten Island, of a
39 financial plan, projections of revenues and expenditures and other esti-
40 mates contained in the financial plan shall be reexamined by the board
41 at least quarterly in consultation with the city and the covered organ-
42 izations, and during a control period the city or the city of Staten
43 Island, as applicable shall prepare and submit to the board financial
44 plan modifications at such times, in such detail and within such time
45 periods as the board may require in order to modify the respective
46 financial plan to conform to the standards set forth in subdivision one
47 of this section. During a control period in the event the board deter-
48 mines that (i) revenue estimates (or any item thereof) must be adjusted
49 to ensure compliance with the standards set forth in subdivision one of
50 this section, or (ii) that the city or a covered organization or the
51 city of Staten Island, as applicable is expending funds at a rate that
52 would cause expenditures to exceed the aggregate expenditure limitation
53 for the city or covered organization or the city of Staten Island, as
54 applicable provided for in the financial plan then in effect, prior to
55 the expiration of the fiscal year, the city or the city of Staten
56 Island, as applicable shall submit a financial plan modification to
S. 8578 141
1 effect such adjustments in revenue estimates and reductions in total
2 expenditures as may be necessary to conform to such standards or aggre-
3 gate expenditure limitations. If during a control period the city fails
4 to submit such modification after such determination as to adjustments
5 in revenue estimates or such determination as to rates of expenditures,
6 or to submit a financial plan modification in the detail or within the
7 time period specified by the board, or if such modification is disap-
8 proved by the board as not conforming to the standards set forth in
9 subdivision one of this section, the board may formulate and adopt such
10 financial plan modification as it deems appropriate to ensure that the
11 financial plan with respect to such entity continues to meet such stand-
12 ards. Such modification shall become effective on its adoption.
13 Notwithstanding the provisions of this section, in the event the city or
14 the city of Staten Island, as applicable shall determine that, due to
15 unforeseen events during a fiscal year, compliance with the standards
16 set forth in paragraph a of subdivision one of this section would result
17 in a material adverse impact upon the delivery of essential services,
18 the city or the city of Staten Island, as applicable shall notify the
19 board of such determination, together with such information, projections
20 or analyses relating thereto as the board may require, and shall submit
21 a modification to the financial plan reflecting such determination.
22 During a control period the board shall disapprove any such modification
23 unless it finds that (i) [the city's] such determination is supported by
24 information, projections and analyses which the board deems substantial-
25 ly accurate in all material respects and (ii) such events, in its judg-
26 ment, warrant such modification to the financial plan to avoid such
27 adverse impact on the delivery of essential services.
28 f. The city or the city of Staten Island may, from time to time,
29 submit financial plan modifications to each plan for review by the
30 board. During a control period the board shall approve such modifica-
31 tions unless it determines that such modifications would constitute
32 grounds for disapproval of the financial plan pursuant to paragraph c of
33 this subdivision, or if applicable, pursuant to paragraph e of this
34 subdivision.
35 g. Anything contained in this act to the contrary notwithstanding,
36 during a control period the board may at any time disapprove or after
37 consultation with the city or the city of Staten Island, as appropriate,
38 revise the revenue estimates (or any item thereof) prepared by the city
39 or the city of Staten Island in connection with the preparation of a
40 financial plan or any modification thereto and determined by the board
41 not to be based on assumptions and methods of estimation which are
42 reasonable and appropriate under the circumstances and in view of the
43 objectives and purposes of the act. The board may after consultation
44 with the city or the city of Staten Island, as appropriate, determine
45 the estimated revenues of the city or the city of Staten Island, as
46 appropriate, and the covered organizations provided, however, that any
47 revenues estimated by the board shall be based on reasonable and appro-
48 priate assumptions and methods of estimation.
49 4. Each financial plan shall be in such form and shall contain such
50 information for each year during which the financial plan is in effect
51 as the board may specify, and shall, in such detail as the board may
52 from time to time prescribe, include projections of all revenues,
53 expenditures and cash flows (including but not limited to projected
54 capital expenditures and debt issuances) and a schedule of projected
55 capital commitments of the city or the city of Staten Island, as appro-
56 priate, and except in such instances as the board may deem appropriate
S. 8578 142
1 each of the covered organizations. In addition, each financial plan and
2 financial plan modification shall include a statement of the significant
3 assumptions and methods of estimation used in arriving at the projec-
4 tions contained therein, set forth in such form and in such detail as
5 the board may from time to time prescribe.
6 5. The city and the covered organizations and during a control period
7 to the extent the board deems necessary or desirable to accomplish the
8 purposes of this act, the city of Staten Island shall promptly furnish
9 the board with any information which the board may request to satisfy
10 itself that (i) projected employment levels, collective bargaining
11 agreements and other action relating to employee costs, capital
12 construction and such other matters as the board may specify, are
13 consistent with the provisions made for such costs in the financial
14 plan, (ii) the city and the covered organizations or the city of Staten
15 Island, as appropriate are taking whatever action is necessary with
16 respect to programs mandated by state and federal law to ensure that
17 expenditures for such programs are limited to and covered by the expend-
18 itures stated in the financial plan, and (iii) adequate reserves are
19 provided to maintain programs mandated by state and federal law and for
20 which obligations are going to be incurred in the fiscal year and other
21 essential programs in the event revenues have been overestimated or
22 expenditures underestimated for any period.
23 6. For each financial plan and financial plan modification to be
24 prepared and submitted by the city to the board pursuant to the
25 provisions of this section, the covered organizations shall submit to
26 the city such information with respect to their projected expenditures,
27 revenues, cash flows and a schedule of projected capital commitments
28 for each year covered by such financial plan or modification as the city
29 shall determine. Notwithstanding any other provision of law limiting
30 the authority of the city with respect to any covered organization, the
31 city, in the preparation and submission of the financial plan and
32 modifications thereof, shall (except for debt service or for other
33 expenditures to the extent that such expenditures are required by law)
34 have the power to determine the aggregate expenditures to be allocated
35 to any covered organization in the financial plan and any modifications
36 thereto.
37 § 12-018. Section 9 of section 2 of chapter 868 of the laws of 1975,
38 constituting the New York state financial emergency act for the city of
39 New York, as amended by chapter 201 of the laws of 1978 and the section
40 heading and subdivisions 1 and 4 as amended by chapter 777 of the laws
41 of 1978, is amended to read as follows:
42 § 9. Establishment and application of the board fund. 1. There is
43 hereby established a fund designated the board fund. Commencing on
44 October twentieth, nineteen hundred seventy-five, and for the duration
45 of a control period, all revenues received or to be received by the city
46 or any covered organization and to the extent the board deems necessary
47 or desirable to accomplish the purposes of this act, the city of Staten
48 Island shall, unless exempted by order of the board, be revenues of the
49 board fund and shall be for the account of the city, the city of Staten
50 Island or the appropriate covered organizations, except (i) to the
51 extent expressly prohibited by federal law, (ii) where revenues of the
52 city are deposited in the general debt service fund, the TAN debt
53 service account or the RAN debt service account, or (iii) where such
54 revenues are pledged to the payment of any outstanding bonds, notes or
55 other obligations of covered organizations or state public authorities
56 as defined in section two hundred one of the civil service law.
S. 8578 143
1 Disbursement from the board fund shall be made by the board in accord-
2 ance with the approved financial plan except as provided in subdivision
3 five of this section nine. Commencing on October twentieth, nineteen
4 hundred seventy-five, and for the duration of a control period, all
5 funds and accounts established or thereafter established by the city,
6 the city of Staten Island or the covered organizations shall, unless
7 exempted by order of the board, thereafter be funds and accounts of the
8 board fund except to the extent expressly prohibited by federal law or
9 to the extent pledged by covenants or agreements relating to any
10 outstanding bonds, notes or other obligations of covered organizations
11 or public authorities as defined in section two hundred one of the civil
12 service law; and no monies or funds held in the general debt service
13 fund, the TAN debt service account or the RAN debt service account shall
14 be part of the board fund. All such accounts of the board shall have
15 such captions and entries as the board shall determine to be necessary
16 to credit the foregoing revenues and receipts to the board fund. The
17 monies of the fund shall not be deemed to be money of the state or money
18 under its control.
19 2. The deposit of revenues into the board fund and the investment or
20 deposit of monies therein shall be made in accordance with and pursuant
21 to procedures established by the board.
22 3. In order to assure compliance with the financial plan, the board
23 shall from time to time adopt procedures controlling the disbursement of
24 monies from the board fund. The board shall authorize the city or, if
25 applicable, the city of Staten Island to make all disbursements of
26 [city] such entity's revenues from the board fund, which disbursements
27 shall be made in accordance with the approved financial plan; provided,
28 that the board may withdraw such authorization if it determines that (a)
29 any disbursements made or to be made by the city or, if applicable, the
30 city of Staten Island have not been or are likely not to be in compli-
31 ance with the approved financial plan, (b) the city or, if applicable,
32 the city of Staten Island has violated any other provisions of this act,
33 or (c) the city has violated an agreement with any holder or guarantor
34 of bonds or notes issued by the city or a state financing agency.
35 4. Within the board fund there is hereby established a special
36 account designated the debt service repayment account. The board shall
37 from time to time direct, in accordance with procedures adopted by the
38 board, the deposit in the debt service repayment account of such amounts
39 as the board shall, in its discretion, determine to be sufficient to
40 meet the debt service requirements of the covered organizations on their
41 bonds and notes (other than bonds and notes of covered organizations
42 payable from revenues not included in the board fund) as they become
43 due. Amounts in the debt service repayment account shall be used to
44 meet such debt service requirements of the covered organizations.
45 5. If at any time the board determines that the amount then held in
46 the board fund or the amount estimated by the board to be held in the
47 board fund is or will be insufficient to meet the expenditures in the
48 amounts and at the times required by the financial plan, the board shall
49 require disbursements from the board fund to be made in the following
50 order or priority unless otherwise required by law of the United States
51 of America: (i) the payment of amounts from the appropriate account of
52 the board fund to the debt service repayment account, the general debt
53 service fund, the TAN debt service account and the RAN debt service
54 account, to maintain therein the amount required, to meet debt service
55 requirements of the city, the city of Staten Island, if appropriate and
56 the covered organizations on their bonds and notes as they may become
S. 8578 144
1 due, (ii) the payment of other liabilities having statutory or contrac-
2 tual priority over remaining liabilities of the city , the city of
3 Staten Island, if appropriate and the covered organizations whose monies
4 are included in the board fund, and (iii) the payment of other obli-
5 gations on an allocated basis as specified by the city or, the city of
6 Staten Island, if appropriate, for expenditures in accordance with the
7 financial plan provided that, in the event that the city or, the city of
8 Staten Island, if appropriate, fails to so specify, the board may with-
9 hold payment of any of such other obligations or may direct their
10 payment pro rata.
11 6. The board shall cause to be performed such pre-audit and post-au-
12 dit reviews of the board funds and disbursements therefrom as it may
13 determine.
14 § 12-019. Section 9-a of section 2 of chapter 868 of the laws of 1975,
15 constituting the New York state financial emergency act for the city of
16 New York, as added by chapter 201 of the laws of 1978, subdivisions 1,
17 2, 3, 4, 6, 7, 8, 9 and 11 as amended, subdivision 10 as renumbered and
18 amended and subdivision 12 as added by chapter 777 of the laws of 1978,
19 is amended to read as follows:
20 § 9-a. Establishment and application of a general debt service fund.
21 1. Commencing on the first day of the first full fiscal quarter subse-
22 quent to the first sale of a federally guaranteed city obligation, the
23 city shall establish a general debt service fund for the purpose of
24 paying debt service due or becoming due in the then current fiscal year
25 and in subsequent fiscal years until the later of (i) the termination
26 date of this act or (ii) the date when all general obligation bonds of
27 the city outstanding as of the establishment of the city of Staten
28 Island have been paid or payment therefor has been provided for in
29 accordance with their terms. All monies in the fund shall be held by
30 the comptroller, who shall administer and maintain the fund in accord-
31 ance with the provisions of this section.
32 2. All payments of or on account of real estate taxes or assessments
33 due to the city or the city of Staten Island, other than the proceeds of
34 tax anticipation notes, shall be immediately upon receipt deposited in
35 an account designated for the municipality to which payment was due
36 established in such fund. The comptroller shall retain, disburse and
37 apply monies in the fund during each month as follows:
38 a. During the first month of each fiscal quarter, there shall be
39 retained in the fund, subject to the provisions of subdivision three of
40 this section, all real estate tax payments deposited in the fund until
41 there shall have been retained from monies so deposited during such
42 month in the applicable account an amount equal to the total monthly
43 debt service, computed as of the date of any disbursement of money from
44 the fund, for the second and third months of such fiscal quarter;
45 provided that such amount shall be reduced by any amount already on
46 deposit in the fund which may be used to pay the monthly debt service
47 for such months.
48 Amounts to be on deposit in such accounts shall be determined as
49 follows: (i) with respect to the account of the city, debt service shall
50 include payments with respect to (a) all bonds and notes of the city
51 issued on or after the date of establishment of the city of Staten
52 Island and (b) all bonds or notes of the city prior thereto multiplied
53 by a fraction, the numerator of which is the total assessed valuation of
54 all taxable real property located in the city as of the date of such
55 establishment and the denominator of which is the total assessed valu-
56 ation of all taxable real property located in the city and the city of
S. 8578 145
1 Staten Island combined as of the date of such establishment and (ii)
2 with respect to the account of the city of Staten Island, debt service
3 shall include payments with respect to (a) all bonds or notes of the
4 city of Staten Island and (b) all bonds or notes of the city issued
5 prior to the establishment of the city of Staten Island multiplied by a
6 fraction, the numerator of which is the total assessed valuation of all
7 taxable real property located in the city of Staten Island as of the
8 date of such establishment and the denominator of which is the same as
9 in clause (b) of subparagraph (i) of this paragraph. To the extent
10 either account contains insufficient amounts to make payments on the
11 respective allocable portion of city bonds or notes issued prior to the
12 establishment of the city of Staten Island and such municipalities own
13 bonds or notes issued subsequent thereto, amounts on deposit in the
14 account of the other municipality in excess of the amounts required to
15 provide for payment of such latter municipality's own bonds or notes
16 issued subsequent to such establishment and allocable portion of city
17 bonds or notes issued prior thereto, shall be retained in such account
18 and applied to the payment of bonds or notes of the city issued prior to
19 such establishment to the extent of any insufficiency in such accounts.
20 For purposes of this section, fiscal quarter shall mean the three-
21 month period beginning July first, October first, January first or April
22 first, and monthly debt service shall mean, as of any date of computa-
23 tion, the amount of monies equal to the aggregate of (i) all interest
24 payable during such month on bonds and notes of the city or the city of
25 Staten Island, as applicable, plus (ii) the amount of principal (includ-
26 ing payments into sinking funds) maturing or otherwise coming due during
27 such month on all bonds of the city or the city of Staten Island, as
28 applicable, (excluding principal payments made from sinking funds
29 required by the terms of certain city or the city of Staten Island, as
30 applicable, bonds), plus (iii) the amount of principal to be paid on
31 notes of the city or the city of Staten Island, as applicable, during
32 such month from sources other than the proceeds of bonds or renewal
33 notes (exclusive of revenue anticipation notes and tax anticipation
34 notes or renewals thereof issued less than two years prior to the date
35 of computation).
36 b. During the second and third months of each fiscal quarter, there
37 shall be retained in the fund, subject to the provisions of subdivision
38 three of this section, all real estate tax payments deposited in the
39 fund until there shall have been retained from monies so deposited
40 during such month an amount equal to the total monthly debt service,
41 computed as of the date of any disbursement of monies from the fund, for
42 the first month of the next succeeding fiscal quarter; provided that
43 such amount shall be reduced by any amount already on deposit in the
44 fund which may be used to pay the monthly debt service for such month.
45 c. During any month of a fiscal quarter, after the retentions
46 required by paragraphs a and b of this subdivision have been made for
47 such month, the comptroller shall deposit any remaining balance of real
48 estate taxes received during such month, first into the TAN debt service
49 account to the extent required under subdivision six of this section,
50 and second into the board fund to be applied in accordance with proce-
51 dures of the board.
52 d. The city may at any time pay into the fund any monies required by
53 law to be used to pay monthly debt service and any other monies avail-
54 able for such purpose.
55 3. The board may approve, subject to agreements made with the holders
56 or guarantors of outstanding notes or bonds issued by or for the benefit
S. 8578 146
1 of the city after the effective date of this act, criteria for calculat-
2 ing a proportion of real estate tax receipts to be retained in the fund
3 in order to provide for the retention of amounts required by the
4 provisions of subdivision two of this section in lieu of the retention
5 of all initial receipts as required by such subdivision; provided, that
6 if the board at any time determines that retentions in the fund pursuant
7 to the provisions of such subdivision are or are likely to be insuffi-
8 cient to provide for the payment of monthly debt service when due, in
9 order to ensure that the amounts on deposit in the fund will be suffi-
10 cient to pay monthly debt service when due, the board shall require (i)
11 that real estate tax receipts be retained in the fund in greater amounts
12 or at earlier dates than the provisions of such subdivision require, or
13 (ii) that other revenues or cash resources of the city be paid into the
14 fund. The board shall consider the impact of earlier or larger
15 retention of real estate tax receipts on the city's seasonal borrowing
16 requirements when determining whether it shall require such additional
17 retention or that other revenues or cash resources of the city be paid
18 into the fund. Prior to the issuance by the city of any bonds or notes,
19 the board shall review any criteria then in effect which determine the
20 proportion of real estate tax receipts to be retained in the fund to
21 determine whether the proposed debt service schedule for such bonds or
22 notes is consistent with the monies which will be available therefor or
23 whether such criteria should be revised. The board shall from time to
24 time take such action as it determines is necessary, including disap-
25 proval of a proposed issue pursuant to paragraph f of subdivision one of
26 section seven, so that the monies in the fund shall be adequate to meet
27 debt service requirements.
28 4. Commencing on the first day of the second month of the first full
29 fiscal quarter subsequent to the first sale of a federally guaranteed
30 city obligation, the payment of monthly debt service shall be made,
31 first, from amounts retained in the fund. Amounts retained in the fund
32 shall be used only to pay debt service of the city.
33 5. Upon the issuance of any tax anticipation notes following the
34 effective date of this act, the comptroller shall establish and, so long
35 as any tax anticipation notes shall be outstanding, shall maintain a tax
36 anticipation note debt service account within the fund for the purpose
37 of paying the principal of tax anticipation notes.
38 6. The city shall determine the date on which the principal due or to
39 become due on an outstanding issue of tax anticipation notes shall equal
40 ninety percent of the available tax levy with respect to such issue, and
41 upon reasonable notice thereof the comptroller shall commence on such
42 date to pay into the TAN debt service account from collections of such
43 taxes and assessments, after retaining amounts required to be deposited
44 in the fund, amounts sufficient to pay when due, the principal of such
45 issue of tax anticipation notes. The payments of the principal of tax
46 anticipation notes shall be made, first, from amounts retained in the
47 TAN debt service account.
48 7. Upon the issuance of any revenue anticipation notes following the
49 effective date of this act, the comptroller shall establish and, so long
50 as any revenue anticipation notes shall be outstanding, shall maintain a
51 revenue anticipation note debt service account within the fund for the
52 purpose of paying the principal of revenue anticipation notes. Each
53 specific type of revenue in anticipation of which such notes are issued
54 and available for such purpose shall be deposited in such account imme-
55 diately upon receipt by the city. Where such revenue consists of state
56 aid or other revenue to be paid to the city by the comptroller, on the
S. 8578 147
1 date such revenue is payable to the city, the comptroller shall deposit
2 such revenue directly into such account in lieu of payment to the city.
3 All revenues deposited in the RAN debt service account shall be paid
4 immediately into the board fund except as otherwise provided in subdivi-
5 sion eight of this section.
6 8. The city shall determine the date on which the principal due or to
7 become due on an outstanding issue of revenue anticipation notes shall
8 equal ninety percent of the total amount of revenue against which such
9 notes were issued remaining to be paid to the city on or before the
10 fifth day prior to the maturity date of such notes and upon reasonable
11 notice thereof the comptroller shall commence on such date to retain in
12 the RAN debt service account from amounts deposited or to be deposited
13 therein of each specific type of revenue in anticipation of which reven-
14 ue such anticipation notes were issued, an amount sufficient to pay,
15 when due, the principal of such revenue anticipation notes. Monies
16 retained in such account shall vest immediately in the comptroller in
17 trust for the benefit of the holders of the revenue anticipation notes
18 in anticipation of which such notes were issued. No person having any
19 claim of any kind in tort, contract or otherwise against such city shall
20 have any right to or claim against any monies of the state appropriated
21 by the state and in anticipation of which such notes have been issued,
22 other than a claim for payment by the holders of such notes, and such
23 monies shall not be subject to any order, judgment, lien, execution,
24 attachment, setoff or counter-claim by any such person; provided, howev-
25 er, that nothing contained in this paragraph shall be construed to
26 limit, impair, impede or otherwise adversely affect in any manner the
27 rights or remedies of the purchasers and holders and owners of any bonds
28 or notes of the state or any agency, instrumentality, public benefit
29 corporation or political subdivision thereof, including the city of New
30 York, under which such purchasers and holders and owners have any right
31 of payment of such bonds or notes by recourse to state aid or local
32 assistance monies held by the state or for the payment of which bonds or
33 notes state aid or local assistance monies are a designated source. The
34 payment of the principal of revenue anticipation notes shall be made
35 first from amounts retained in the RAN debt service account.
36 9. Whenever the amount contained in the TAN debt service account or
37 the RAN debt service account exceeds the amount required to be retained
38 in such account such excess monies, including earnings on investments of
39 monies in the fund, shall be withdrawn from such account and paid into
40 the board fund.
41 10. Subject to agreements made with holders or guarantors of
42 outstanding notes or bonds issued by or for the benefit of the city
43 after the effective date of this act, the comptroller shall invest the
44 monies retained in the fund in accordance with law.
45 11. The limitations imposed upon the city by this section shall be in
46 addition to any limitations imposed upon the city or the city of Staten
47 Island under the local finance law. In the event any provisions of the
48 local finance law shall be inconsistent with the provisions of this
49 section, the provisions of this section shall prevail. The requirements
50 of this section shall not apply to any note of the city held by the
51 municipal assistance corporation for the city of New York to the extent
52 that such corporation has evidenced its intention not to present such
53 notes for payment during the fiscal year in which the determination is
54 made provided that such notes were held by such corporation on June
55 thirtieth, nineteen hundred seventy-eight or were issued in exchange for
S. 8578 148
1 or in refunding or renewal of notes held by such corporation on such
2 date.
3 12. Notwithstanding any other provision of this section, the city and
4 the city of Staten Island, if applicable, may, at any time, subject to
5 approval by the comptroller, designate a trust company or bank having
6 its principal place of business in the state of New York and having the
7 powers of a trust company in the state of New York to hold all or any
8 part of the monies in the fund and to administer and maintain the monies
9 so held in accordance with the applicable provisions of this section and
10 any agreements made pursuant thereto.
11 § 12-020. Section 11 of section 2 of chapter 868 of the laws of 1975,
12 constituting the New York state financial emergency act for the city of
13 New York, subdivisions 1 and 3 as amended by chapter 777 of the laws of
14 1978, is amended to read as follows:
15 § 11. Prohibitions; penalties. 1. During a control period, (i) no
16 officer or employee of the city or of any of the covered organizations
17 or to the extent the board deems necessary or desirable to accomplish
18 the purposes of this act, the city of Staten Island shall make or
19 authorize an obligation or other liability in excess of the amount
20 available therefor under the financial plan as then in effect; (ii) no
21 officer or employee of the city or of any of the covered organizations
22 or the city of Staten Island shall involve the city, the city of Staten
23 Island, if applicable or any of the covered organizations in any
24 contract or other obligation or liability for the payment of money for
25 any purpose required to be approved by the board unless such contract,
26 obligation or liability has been so approved or deemed to be approved as
27 provided in paragraphs e and f of subdivision one of section seven and
28 unless such contract or obligation or liability is in compliance with
29 the financial plan as then in effect.
30 2. No officer or employee of the city or any of the covered organiza-
31 tions, or, the city of Staten Island, if applicable, shall take any
32 action in violation of any valid order of the board or shall fail or
33 refuse to take any action required by any such order or shall prepare,
34 present or certify any information (including any projections or esti-
35 mates) or report for the board or any of its agents that is false or
36 misleading, or, upon learning that any such information is false or
37 misleading, shall fail promptly to advise the board or its agents there-
38 of.
39 3. In addition to any penalty or liability under other law, any offi-
40 cer or employee of the city or any of the covered organizations, or, the
41 city of Staten Island, if applicable, who shall knowingly and willfully
42 violate subdivision one or two of this section shall be subject to
43 appropriate administrative discipline, including, when circumstances
44 warrant, suspension from duty without pay or removal from office by
45 order of either the governor or the mayor or the mayor of the city of
46 Staten Island, if applicable, and shall, upon conviction, be guilty of a
47 misdemeanor.
48 4. In the case of a violation of subdivision one or two of this
49 section by an officer or employee of the city, or, the city of Staten
50 Island, if applicable, or any of the covered organizations, the mayor or
51 the mayor of the city of Staten Island, if applicable, or the chief
52 executive officer of such covered organization shall immediately report
53 to the board all pertinent facts together with a statement of the action
54 taken thereon.
55 § 13-001. Section 25-a of the general city law is amended by adding a
56 new undesignated paragraph to read as follows:
S. 8578 149
1 For the purposes of this article, a city which is incorporated on or
2 after the first of January next succeeding the date on which this para-
3 graph shall have become a law and which is comprised of a geographical
4 area which on the date immediately prior to such incorporation had been
5 wholly contained within a city with a population of one million or more
6 shall continue to be treated as a city with a population of one million
7 or more.
8 § 13-002. Section 25-w of the general city law is amended by adding a
9 new subdivision (g) to read as follows:
10 (g) For the purposes of this article, a city which is incorporated on
11 or after the first of January next succeeding the date on which this
12 subdivision shall have become a law and which is comprised of a
13 geographical area which on the date immediately prior to such incorpo-
14 ration had been wholly contained within a city with a population of one
15 million or more shall continue to be treated as a city with a population
16 of one million or more.
17 § 13-003. Section 1 of chapter 772 of the laws of 1966 relating to
18 imposition of a city business tax is amended by adding a new undesig-
19 nated paragraph to read as follows:
20 For the purposes of this section, a city which is incorporated on or
21 after the first of January next succeeding the date on which this para-
22 graph shall have become a law and which is comprised of a geographical
23 area which on the date immediately prior to such incorporation had been
24 wholly contained within a city with a population of one million or more
25 shall continue to be treated as a city with a population of one million
26 or more.
27 § 13-004. Section 2 of chapter 772 of the laws of 1966 relating to
28 imposition of a city business tax is amended by adding a new undesig-
29 nated paragraph to read as follows:
30 For the purposes of this section, a city which is incorporated on or
31 after the first of January next succeeding the date on which this para-
32 graph shall have become a law and which is comprised of a geographical
33 area which on the date immediately prior to such incorporation had been
34 wholly contained within a city with a population of one million or more
35 shall continue to be treated as a city with a population of one million
36 or more.
37 § 13-005. Section 1301 of the tax law is amended by adding a new
38 subsection (f) to read as follows:
39 (f) For the purposes of this article, a city which is incorporated on
40 or after the first of January next succeeding the date on which this
41 subsection shall have become a law and which is comprised of a geograph-
42 ical area which on the date immediately prior to such incorporation had
43 been wholly contained within a city with a population of one million or
44 more shall continue to be treated as a city with a population of one
45 million or more.
46 § 4-002. Section 2550 of the education law, as amended by chapter 65
47 of the laws of 1972, is amended to read as follows:
48 § 2550. Application of article. This article shall apply to the city
49 school districts of the following cities only: New York, Buffalo,
50 Rochester, Syracuse, Staten Island and Yonkers.
51 § 4-003. Section 2552 of the education law is amended by adding a new
52 subdivision e to read as follows:
53 e. City school district of the city of Staten Island: nine members.
54 § 4-004. Subdivisions 1, 2, 4, 5 and 6 of section 2553 of the educa-
55 tion law, subdivision 1 as separately amended by chapters 211 and 441 of
56 the laws of 1980, subdivisions 2, 4 and 5 as added by chapter 242 of the
S. 8578 150
1 laws of 1974 and subdivision 6 as amended by chapter 211 of the laws of
2 1980, are amended to read as follows:
3 1. No person shall be eligible to the office of member of a board of
4 education who is not a citizen of the United States, who is not quali-
5 fied to register for or vote at an election in accordance with the
6 provisions of section 5-106 of the election law, and who, in the case of
7 the city school district of the city of Yonkers, has not been a resident
8 of the city school district for which [he] such person is chosen for a
9 period of at least three years immediately preceding the date of [his]
10 such person's election or appointment and who, in the case of the city
11 school district of the city of Buffalo, in the case of a member to be
12 elected at large is not a qualified voter of such city school district
13 and who has not been a resident of such district for a period of at
14 least three years immediately preceding the date of [his] such person's
15 election and in the case of a member elected from a city school subdis-
16 trict is not a qualified voter of such city school subdistrict and has
17 not been a resident of the city school district for three years and a
18 resident of the city school subdistrict which [he] such person repres-
19 ents or seeks to represent for a period of one year immediately preced-
20 ing the date of [his] such person's election, and who, in the case of
21 the city school district of the city of Rochester, is not a qualified
22 voter under section 5-102 of the election law of such city school
23 district; and who, in the case of the city school district of the city
24 of Staten Island has been a qualified voter under section 5-102 of the
25 election law of such city school district for at least ninety days imme-
26 diately preceding the date of such person's election or appointment; and
27 who in the case of the city school district of the city of Syracuse has
28 not been a qualified voter under section 5-102 of the election law of
29 such city school district for at least ninety days immediately preceding
30 the date of [his] such person's election or appointment.
31 2. In the city school districts of the cities of Rochester and Syra-
32 cuse the members of such board of education shall be chosen by the
33 voters at large at either a general or municipal election, or at both.
34 In the city school district of the city of Staten Island the members of
35 such board of education shall be chosen pursuant to the provisions of
36 subdivision twelve of this section. In the city school district of the
37 city of Buffalo the members of such board of education shall be chosen
38 pursuant to the provisions of subdivision ten of this section.
39 4. In the city school districts of the following cities, the terms of
40 such members shall be as follows:
41 a. Rochester: Four Years;
42 b. Syracuse: Four Years;
43 c. Yonkers: Five Years; and
44 d. Staten Island: Three Years.
45 5. The terms of one-fifth of all the members of a board of education,
46 or of a fraction as close to one-fifth thereof as possible, shall expire
47 annually on the first Tuesday in May, except in the city school
48 districts of the cities of Buffalo, Rochester, Staten Island and Syra-
49 cuse.
50 6. If a vacancy occurs other than by expiration of term in the office
51 of a member of a board of education in a district in which such members
52 are elected at a general or municipal election, such vacancy shall be
53 filled by appointment by the mayor until the next general or municipal
54 election is held, and such vacancy shall then be filled at such election
55 for the unexpired portion of such term, except that in the city school
56 district of the city of Rochester any such vacancy shall be filled
S. 8578 151
1 pursuant to the provisions of subdivision nine of this section and
2 except further that any such vacancy on the board of education of the
3 city school district of the city of Buffalo shall be filled pursuant to
4 the provisions of subdivision ten of this section and except that any
5 vacancy on the board of education of the city school district of the
6 city of Staten Island shall be filled pursuant to the provisions of
7 subdivision twelve of this section.
8 § 4-005. Section 2553 of the education law is amended by adding a new
9 subdivision 12 to read as follows:
10 12. a. The members of the board of education of the city school
11 district of the city of Staten Island shall be elected by the qualified
12 voters of such city as provided in this subdivision.
13 b. The members of the board of education shall be elected at large
14 throughout the city as provided for in this subdivision.
15 c. (1) Every registered voter residing in the city school district of
16 the city of Staten Island and every parent of a child of school age
17 under the jurisdiction of such school district who is a resident of the
18 city of Staten Island for at least ninety days immediately preceding
19 such election and at least eighteen years of age shall be eligible to
20 vote at such election for members of the board of education.
21 (2) Each candidate for member of the board of education of the city
22 school district of the city of Staten Island shall be required to file
23 petitions containing at least five hundred signatures. No petition shall
24 contain any political party or independent body name or label. Each
25 petition shall contain the name of only one candidate and such petition
26 shall be filed with the clerk of the board of elections of the county of
27 Richmond not earlier than the fifth Tuesday and not later than the
28 fourth Tuesday preceding the date on which an election shall be held. A
29 certificate of acceptance or declination of any individual so nominated
30 shall be filed not later than the third day after the fourth Tuesday
31 preceding the election.
32 d. No person shall be eligible for the office of member of such board
33 of education who is not a qualified voter under section 5-102 of the
34 election law of such city school district. No person shall hold at the
35 same time the office of member of the board of education and any other
36 elective office nor shall any holder of an elective office be a candi-
37 date for the office of member of such board of education. No employee of
38 the city school district of the city of Staten Island shall be a member
39 of the board of education.
40 e. The term of office of each member of the board of education of the
41 city school district of the city of Staten Island shall be three years.
42 Voting will be by means of cumulative voting. Each voter may cast up to
43 nine votes for the candidate or candidates of their choice by casting
44 all of their votes for a single candidate, by casting one vote for each
45 of nine candidates, or by allocating any combination of nine whole votes
46 among the candidates. The maximum number of votes each voter may cast
47 shall not exceed nine. Nothing in this paragraph requires that a voter
48 cast more than one vote for any one candidate. The nine candidates
49 receiving the greatest number of votes cast shall be elected.
50 f. (1) Such election for such office shall be governed by the
51 provisions of the election law in the same manner as candidates for
52 office generally to be elected by the voters of the city of Staten
53 Island except, as the case may be, as to the date of the election; and,
54 further provided, however, that each such candidate for election as a
55 member of such board of education shall be required to file a petition
S. 8578 152
1 containing signatures of at least five hundred voters of such city
2 school district.
3 (2) For the election held in May, in the year next succeeding the
4 date on which this subdivision shall have become a law, such petition
5 shall be deemed to be timely filed for such election if filed with the
6 clerk of the board of elections of Richmond county on or before April
7 ninth, in the year next succeeding the date on which this subdivision
8 shall have become a law. A petition sent by mail in an envelope post-
9 marked prior to midnight on April ninth, in the year next succeeding the
10 date on which this subdivision shall have become a law, shall be deemed
11 to be timely filed when received. Written objection to such petition
12 shall be filed within two days after the final date for filing of such
13 petition and specifications of the grounds of the objections shall be
14 filed with the board within one day after the filing of the objection
15 and institution of court proceedings relating thereto shall be commenced
16 not later than May second, in the year next succeeding the date on which
17 this subdivision shall have become a law.
18 g. Petitions for the nomination of members of such school board shall
19 be on white paper containing the required signatures of qualified voters
20 of the city of Staten Island. The sheets of such petition shall be
21 numbered consecutively, beginning with number one, at the foot of each
22 sheet. Such a petition must set forth in every instance the correct
23 date of signing, the full name of the signer and the signer's present
24 residence. A signer need not fill in the date or residence themself.
25 h. Each sheet of such a petition shall be signed in ink and shall be
26 substantially in the following form:
27 I, the undersigned, do hereby state that I am a duly qualified voter
28 of the city of Staten Island, that my present place of residence is
29 truly stated opposite my signature hereto, I intend to support at the
30 ensuing election and I do hereby nominate the following named person as
31 a candidate for nomination (for the public office of member of the board
32 of education of the city school district of the city of Staten Island at
33 large..............day of....................,) (for the city school
34 district.............day of........,)
35 In witness whereof, I have hereunto set my hand the day and year
36 placed opposite my signature.
37 AssemblyElection
38 DateNameofSignerPresentResidenceDistrictDistrict
39 ....... ................ ............. ... ...
40 ....... ................ ............. ... ...
41 ....... ................ ............. ... ...
42 The petition shall be authenticated by witnesses. Such statement
43 shall be accepted for all purposes as the equivalent of an affidavit,
44 and if false shall subject the witness to the same penalties as if such
45 witness had been duly sworn. The form of such statement shall be
46 substantially as follows:
47 STATEMENT OF WITNESS
48 I,...................., (name of witness), state: I am a duly quali-
49 fied voter of the state of New York, and now reside in the city, town or
50 village of..............., in such state, at ................(fill in
51 street and house number and post office) therein. I know each of the
52 voters whose names are subscribed to this petition sheet containing
53 (fill in number).............signatures and each of them subscribed the
S. 8578 153
1 same in my presence and upon so subscribing declared to me that the
2 foregoing statement, made and subscribed by them, was true.
3 .....................
4 Signature of witness
5 Date.......
6 i. The board of elections shall refuse to accept such petitions
7 signed by an insufficient number of qualified voters, or petitions which
8 are not timely or petitions bearing a political party or independent
9 body, name or emblem or which contain the name of more than one candi-
10 date.
11 j. Except as it may be modified by the provisions of paragraph f of
12 this subdivision, the provisions of the election law with respect to
13 acceptances by candidates nominated by independent nominating petitions
14 shall apply to candidates nominated by petitions for members of such
15 board of education.
16 k. Objections to petitions for the nomination of members of such
17 board of education and procedures and remedies applicable to such
18 objections shall be the same as those applicable to independent nominat-
19 ing petitions under the election law, except as it may be modified by
20 the provisions of paragraph d of this subdivision.
21 l. The board of elections shall cause to be printed official ballots
22 containing the names of all candidates as above provided, except that
23 the board may refuse to have the names of ineligible candidates placed
24 on such ballots. The names of the candidates shall be arranged accord-
25 ing to lot, and shall not bear the designation of any political party or
26 independent body, name or emblem. Blank spaces shall be provided so
27 that voters may vote for candidates who have not been nominated for the
28 offices to be filled at such elections. The form of such ballots shall
29 conform substantially to the form of ballots used at general elections
30 as prescribed in the election law.
31 m. Voting for the election of members of such board of education
32 shall be by voting machine, if practicable, and shall be governed by the
33 applicable provisions of the election law with respect to voting
34 machines.
35 n. If a candidate, after a petition in such candidate's behalf shall
36 have been duly filed with the clerk of the board of elections, and prior
37 to the date of the election, shall decline to accept the nomination,
38 die, remove from the school district, accept or be a candidate for
39 another elective office, or become otherwise disqualified for such city
40 school district office, a further petition may be filed with such clerk,
41 nominating another candidate in such candidate's place and stead. Such
42 further petition shall in all respects comply with the provisions of
43 paragraphs f, g and i of this subdivision, except that it may be filed
44 at any time up to and including the fifteenth day preceding the date of
45 the election pursuant to the provisions of this subdivision and the time
46 within which to accept or object to such further petition shall be
47 computed from the date of filing or said fifteenth day, whichever is
48 earlier.
49 o. Whenever a vacancy shall occur or exist in the office of member of
50 the board of education except by reason of expiration of term or
51 increase in the number of members of such board, the candidate who has
52 received the next highest total number of votes in the preceding school
53 board election as certified by the board of elections shall be selected
54 to fill the vacancy. In the event that no candidate is available, then
55 the mayor of the city of Staten Island shall appoint a person to fill
56 the vacancy for the remainder of the unexpired term.
S. 8578 154
1 p. The members so elected to the board of education shall convene on
2 the first business day in July of each year at the time of the commence-
3 ment of their term of office and select from their members a president
4 who shall serve for a term of one year or such other term, not exceeding
5 the term of such member's office, as may be fixed by the rules and regu-
6 lations of the board.
7 q. The election of members of the board of education of the city
8 school district of the city of Staten Island shall take place on May
9 second, two thousand twenty-seven and on the first Tuesday in May every
10 third year thereafter. Such election shall be conducted by the board of
11 elections of the county of Richmond in the same manner as general
12 elections are conducted by it.
13 r. Polls shall be open for voting for the hours prescribed by section
14 8-100 of the election law for primary elections. The results of such
15 elections, after canvassing, shall be certified and reported by the
16 board of elections to the city clerk and the board of education of such
17 city.
18 § 4-006. Subdivision 2 of section 2554 of the education law, as
19 amended by chapter 27 of the laws of 2012, is amended to read as
20 follows:
21 2. [To] Except as provided in subdivision one of section two thousand
22 five hundred seventy-three of this article, to create, abolish, maintain
23 and consolidate such positions, divisions, boards or bureaus as, in its
24 judgment, may be necessary for the proper and efficient administration
25 of its work; to appoint a superintendent of schools, such associate,
26 assistant, district and other superintendents, examiners, directors,
27 supervisors, principals, teachers, lecturers, special instructors,
28 medical inspectors, nurses, auditors, attendance officers, secretaries,
29 clerks, custodians, janitors and other employees and other persons or
30 experts in educational, social or recreational work or in the business
31 management or direction of its affairs as said board shall determine
32 necessary for the efficient management of the schools and other educa-
33 tional, social, recreational and business activities; provided, however,
34 that in the city school districts of the cities of Buffalo, Rochester,
35 and Syracuse appointment of associate, assistant and district super-
36 intendents, and other supervising staff who are excluded from the right
37 to bargain collectively pursuant to article fourteen of the civil
38 service law shall, within the amounts budgeted for such positions, be by
39 the superintendent of such city school district; and to determine their
40 duties except as otherwise provided herein.
41 § 4-007. Subdivision 8 of section 2554 of the education law, as
42 amended by chapter 576 of the laws of 1964, is amended to read as
43 follows:
44 8. To dispose of, in the city of New York and the city of Staten
45 Island, to the best advantage of the city of New York or the city of
46 Staten Island, either by sale or on the basis of money allowance for
47 waste paper all books delivered to the several public schools of such
48 city that have been discarded either by reason of being obsolete, no
49 longer required by the course of study, worn by long usage or mutilated
50 by accident. If disposal is made by sale it shall be to the highest
51 bidder and the money realized shall be paid into the city treasury and
52 shall at once be appropriated by the city to the special school fund of
53 the board of education entitled "supplies". If disposal is made on the
54 basis of money allowance for waste paper, it shall be to the highest
55 bidder. Such discarded books may be disposed of without public adver-
56 tisement or entry into a formal contract. Should the discarded books be
S. 8578 155
1 in such condition that no sale or exchange can be made, or should there
2 be reason to believe that such discarded books have become infected
3 through disease among the pupils, or should the superintendent of
4 schools certify that such discarded books contain erroneous, inaccurate,
5 obsolete or antiquated subject matter, illustrations, maps, charts or
6 other material, the committee on supplies of the board of education, if
7 such books cannot be sold, given away or otherwise salvaged as waste
8 paper without danger to the public health, may authorize their
9 destruction by fire, in which event the superintendent of school
10 supplies shall obtain and file in [his] such person's office a certif-
11 icate that such books have been so destroyed, signed by the principal of
12 the school in which the books are located.
13 § 4-008. Subdivision 14 of section 2554 of the education law, such
14 section as renumbered by chapter 762 of the laws of 1950, is amended to
15 read as follows:
16 14. To provide in the schools administered by the board of education
17 of the city of New York or the city of Staten Island, the proper book or
18 books, in form as required by the by-laws of the board of education of
19 such city, in which it shall cause the class teachers under the direc-
20 tion and supervision of the principal to enter the names, ages and resi-
21 dences of the pupils attending the school, the name of the parent or
22 guardian of each pupil and the days on which the pupils shall have
23 attended respectively, and the aggregate attendance of each pupil during
24 the year, and also the day upon which the school shall have been visited
25 by the superintendent of schools or by an associate superintendent of
26 schools or by an assistant superintendent, or by members of the board of
27 education, or by members of the local school board, or by any of them,
28 which entry shall be verified by such oath or affirmation of the princi-
29 pal as may be prescribed by the board of education of such city. Such
30 books shall be preserved as the property of such board of education and
31 shall at all times be open to inspection by members of such board of
32 education, by members of the local school boards and by the superinten-
33 dent of schools, or by any associate superintendent of schools, or by
34 the assistant superintendents.
35 § 4-009. Subdivision 15 of section 2554 of the education law is
36 amended by adding a new paragraph b-1 to read as follows:
37 b-1. In the city of Staten Island, the board of education shall make
38 rules and regulations for the conduct, operation and maintenance of
39 extra classroom activities and for the safeguarding, accounting and
40 audit of all moneys received and derived therefrom. In the case of any
41 extra classroom activity as it shall deem proper, and notwithstanding
42 the provisions of section twenty-five hundred thirty of this title, it
43 may direct that the moneys received or derived from the conduct, opera-
44 tion or maintenance of such an extra classroom activity be deposited
45 with the chief fiscal officer of the board of education, who in such
46 event shall be the treasurer of such an extra classroom activity, the
47 moneys of which are required to be so deposited. In the procurement of
48 articles and services for the conduct, operation and maintenance of a
49 cafeteria or restaurant service, the board of education shall be subject
50 to the provisions of subdivision ten of section twenty-five hundred
51 fifty-six of this article, except that said board of education need not
52 have duly advertised for estimates in order to contract for such arti-
53 cles or services in an amount exceeding one thousand dollars. In such
54 city, the board of education shall also have power to assign any of its
55 officers or employees to perform such duties as it may prescribe in
56 connection with an extra classroom activity and to designate such of its
S. 8578 156
1 officers and employees when so assigned from whom a bond shall be
2 required for faithful performance of their duties and to fix the sum in
3 which each such bond shall be given.
4 § 4-010. Section 2554 of the education law is amended by adding two
5 new subdivisions 29 and 30 to read as follows:
6 29. To assign, in its discretion, one or more employees of the board
7 in the city of Staten Island to serve as trial examiner with power to
8 conduct investigations and hearings on behalf of such board. Each trial
9 examiner shall report the result of any such investigation or hearing to
10 the board.
11 30. To employ a superintendent of the city of Staten Island school
12 district by contract for a four-year term of office, subject to removal
13 for cause, at a salary to be fixed within the budgetary allocation
14 therefor.
15 § 4-011. Subdivision 5 of section 2556 of the education law, as
16 amended by chapter 480 of the laws of 2014, is amended to read as
17 follows:
18 5. It shall be unlawful for a schoolhouse to be constructed in the
19 city of New York or the city of Staten Island without an open-air play-
20 ground attached to or used in connection with the same. Existing play-
21 grounds shall not be sold, leased or transferred, or permanently author-
22 ized for other uses such as school building construction, renovation,
23 placement or storage of building materials for such work that would
24 eliminate the use of such playground space for outdoor recreational
25 activities unless a plan is established and implemented to provide suit-
26 able and adequate physical activities or space to accommodate the phys-
27 ical and recreational needs of the pupils of such building. The
28 provisions of this subdivision shall not apply to school construction or
29 renovation activities that occur on or require the use of such play-
30 grounds for a duration of no more than one year.
31 § 4-012. Section 2556 of the education law is amended by adding a new
32 subdivision 6-a to read as follows:
33 6-a. After a site has been selected and plans and specifications for a
34 building thereon have been approved as provided herein, the board of
35 education of the city school district of the city of Staten Island may,
36 in its discretion, by regulation deliver such plans and specifications
37 to the common council or other local legislative body which may thereup-
38 on, in its discretion, award a contract for the erection of such build-
39 ing in the same manner and in accordance with the provisions of law
40 regulating the awarding of contracts for the construction of municipal
41 buildings of such city.
42 § 4-013. Section 2556 of the education law is amended by adding three
43 new subdivisions 10-b, 11-a and 13-a to read as follows:
44 10-b. In the city of Staten Island if the several parts of the work or
45 labor to be done and/or the supplies, materials and equipment to be
46 furnished shall together involve an expenditure of not more than ten
47 thousand dollars, the same may be procured in compliance with the proce-
48 dures on contracting provided in chapter nine of the charter of the city
49 of Staten Island.
50 11-a. In all contracts by the board of education of the city school
51 district of the city of Staten Island, for the construction, repair,
52 alteration or remodeling of buildings or for the purchase of supplies,
53 furniture or equipment, a stipulation may be inserted for liquidated
54 damages for any breach, failure or delay in the performance thereof; and
55 such board of education is authorized and empowered to remit the whole
56 or any part of such damages as in its discretion may be just and equita-
S. 8578 157
1 ble; and in all suits commenced on any such contracts or on any bond
2 given in connection therewith it shall not be necessary for such board,
3 whether plaintiff or defendant, to prove actual or specific damages
4 sustained by reason of any such breach, failure or delay, but such stip-
5 ulation for liquidated damages shall be conclusive and binding upon all
6 parties.
7 13-a. The board of education of the city school district of the city
8 of Staten Island may through its duly designated officers, agents or
9 employees enter upon public or private property for the purpose of
10 making surveys, soundings or test borings necessary for the exercise of
11 the powers or the performance of the duties, of such board of education,
12 provided, however, that the mayor had formally approved the acquisition
13 of the real property as a school site.
14 § 4-014. The education law is amended by adding three new sections
15 2560-a, 2561-a, and 2562-a to read as follows:
16 § 2560-a. Liability of board of education of the city school district
17 of the city of Staten Island. 1. Notwithstanding any inconsistent
18 provision of law, general, special or local, or the limitation contained
19 in the provisions of any city charter, any duly appointed member of the
20 board of education of the city school district of the city of Staten
21 Island, the members of the school board of such city, the teaching or
22 supervising staff, officer, or employee of such board, member of a
23 committee on special education or subcommittee thereof or authorized
24 participant in the school volunteer program in such city shall be enti-
25 tled to legal representation and indemnification pursuant to the
26 provisions of, and subject to the conditions, procedures and limitations
27 contained in section fifty-k of the general municipal law, except that
28 any judgment or settlement pursuant to this section shall be payable
29 from the moneys of the board of education.
30 2. Notwithstanding any inconsistent provision of law, general, special
31 or local, or limitations contained in the provision of any city charter,
32 it shall not be within the power of the board of education of the city
33 of Staten Island to require a volunteer participating in any school
34 activities to execute a waiver of responsibility in favor of that board
35 as a condition, either express or implied, of such participation. Such
36 waiver would include, but not be limited to, a release of any party
37 against whom the volunteer may have rights under any existing provision
38 of law for personal injuries incurred during the performance of author-
39 ized volunteer duties by an authorized participant in a school volunteer
40 program.
41 § 2561-a. Liability of certain officers and employees of the board of
42 education of the city school district of the city of Staten Island. If,
43 in order to furnish needy children or minors with food, shoes, clothing,
44 and other necessities to enable them to attend school as contemplated by
45 law and to benefit from instruction, such board of education shall have
46 required, imposed or permitted, the performance of duties by any of its
47 officers and employees, because of which it became necessary or expedi-
48 ent for any such officer or employee to act for such board of education,
49 or to act for or in cooperation with any other agency of government,
50 federal, state or municipal, then irrespective of the fact that the
51 authority to require, impose or permit the performance of such duties
52 may not have been specifically conferred upon said board of education by
53 provisions of this chapter, such board of education shall be liable for
54 and shall assume liability to the extent that it shall save harmless any
55 such officers or employees for damages arising out of the negligence of
56 any such officer or employee while actually engaged in the performance
S. 8578 158
1 of such required or permitted duties, provided the officer or employee
2 at the time was acting within the scope of such officer's duties or
3 employment.
4 § 2562-a. Presentation of claims against the board of education of
5 the city school district of the city of Staten Island to be pleaded. 1.
6 No action or special proceeding, for any cause whatever, shall be prose-
7 cuted or maintained against the board of education of the city school
8 district of the city of Staten Island, unless it shall appear by and as
9 an allegation in the complaint or necessary moving papers that at least
10 thirty days have elapsed since the demand, claim or claims upon which
11 such action or special proceeding is founded were presented to the said
12 board of education for adjustment, and that the officer or body having
13 the power to adjust or pay said claim has neglected or refused to make
14 an adjustment or payment thereof for thirty days after such presentment.
15 2. The said board of education may require any person presenting for
16 settlement an account or claim for any cause whatever against it to be
17 sworn before it or a committee thereof, or before the auditor, or before
18 any person designated by said board, touching such account or claim, and
19 when so sworn, to answer orally as to any facts relative to the justness
20 of such account or claim. A member of the board, the auditor, or any
21 other person designated as hereinbefore stated, shall have the power to
22 administer an oath to any person who shall give testimony to the just-
23 ness of such account or claim, and for the purpose of securing such
24 testimony may issue subpoenas for the attendance of witnesses. Wilful
25 false swearing before the said board of education, a committee thereof,
26 the auditor, or before any person designated as hereinbefore stated, is
27 perjury and punishable as such.
28 § 4-015. Section 2566 of the education law is amended by adding a new
29 subdivision 3-a to read as follows:
30 3-a. In the city of Staten Island, to exercise the administrative and
31 ministerial powers of the board of education.
32 § 4-016. The education law is amended by adding two new sections
33 2567-a and 2568-a to read as follows:
34 § 2567-a. Protection of rights exercised under licenses issued by a
35 board of education in the city of Staten Island. No person shall
36 forfeit any right given to such person under a license issued by such
37 board of education, pursuant to this chapter, because of absence while
38 in service in the armed forces of the United States or in the service of
39 the American Red Cross. Any person may at any time within six months
40 after such person's discharge from service in the armed forces of the
41 United States or the American Red Cross make application to the license
42 issuing authority by affidavit setting forth that such person has been
43 in service in the armed forces of the United States or the American Red
44 Cross and has been discharged from such service and that such person
45 desires the license theretofore issued to them to be reissued as of the
46 date of such application, and it shall be the duty of the licensing
47 authority to reinstate such license as of the date on which application
48 is made.
49 § 2568-a. Superintendent of schools authorized to require medical
50 examination of certain employees of the board of education of the city
51 school district of the city of Staten Island. The superintendent of
52 schools shall be empowered to require any person employed by the board
53 of education of the city school district of the city of Staten Island to
54 submit to a medical examination by a physician or school medical inspec-
55 tor of the board, in order to determine the mental or physical capacity
56 of such person to perform their duties, whenever it has been recommended
S. 8578 159
1 in a report in writing that such examination should be made. Such
2 report to the superintendent may be made only by a person under whose
3 supervision or direction the person recommended for such medical exam-
4 ination is employed. The person required to submit to such medical exam-
5 ination shall be entitled to be accompanied by a physician or other
6 person of their own choice. The findings upon such examination shall be
7 reported to the superintendent of schools and may be referred to and
8 considered for the evaluation of service of the person examined or for
9 disability retirement.
10 § 4-017. Subdivision 1 of section 2573 of the education law, as
11 amended by section 3 of subpart D of part EE of chapter 56 of the laws
12 of 2015, subparagraphs i and ii of paragraph (a) as amended by chapter
13 143 of the laws of 2024 and subparagraph ii of paragraph (b) as amended
14 by chapter 345 of the laws of 2019, is amended to read as follows:
15 1. (a) i. [Teachers] Except as already provided for in paragraph (c)
16 of this subdivision, teachers and all other members of the teaching
17 staff, appointed prior to July first, two thousand fifteen and author-
18 ized by section twenty-five hundred fifty-four of this article, shall be
19 appointed by the board of education, upon the recommendation of the
20 superintendent of schools, for a probationary period of three years,
21 except that in the case of a teacher who has rendered satisfactory
22 service as a regular substitute for a period of two years or as a
23 seasonally licensed per session teacher of swimming in day schools who
24 has served in that capacity for a period of two years and has been
25 appointed to teach the same subject in day schools on an annual salary,
26 the probationary period shall be limited to one year; provided, however,
27 that in the case of a teacher who has been appointed on tenure in anoth-
28 er school district within the state, the school district where currently
29 employed, or a board of cooperative educational services, and who was
30 not dismissed from such district or board as a result of charges brought
31 pursuant to subdivision one of section three thousand twenty-a of this
32 chapter, the probationary period shall not exceed two years; provided,
33 however, that in cities with a population of one million or more, a
34 teacher appointed under a newly created license, for teachers of reading
35 and of the emotionally handicapped, to a position which the teacher has
36 held for at least two years prior to such appointment while serving on
37 tenure in another license area who was not dismissed as a result of
38 charges brought pursuant to subdivision one of section three thousand
39 twenty-a of this chapter, the probationary period shall be one year. The
40 service of a person appointed to any of such positions may be discontin-
41 ued at any time during such probationary period, on the recommendation
42 of the superintendent of schools, by a majority vote of the board of
43 education. Each person who is not to be recommended for appointment on
44 tenure shall be so notified by the superintendent of schools in writing
45 not later than sixty days immediately preceding the expiration of such
46 person's probationary period. In city school districts having a popu-
47 lation of four hundred thousand or more, persons with licenses obtained
48 as a result of examinations announced subsequent to the twenty-second
49 day of May, nineteen hundred sixty-nine appointed upon conditions that
50 all announced requirements for the position be fulfilled within a speci-
51 fied period of time, shall not acquire tenure unless and until such
52 requirements have been completed within the time specified for the
53 fulfillment of such requirements, notwithstanding the expiration of any
54 probationary period. In all other city school districts subject to the
55 provisions of this article, failure to maintain certification as
56 required by this article and by the regulations of the commissioner
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1 shall be cause for removal within the meaning of subdivision five of
2 this section.
3 ii. [Teachers] Except as otherwise provided for in paragraph (c) of
4 this subdivision, teachers and all other members of the teaching staff
5 appointed on or after July first, two thousand fifteen and authorized by
6 section twenty-five hundred fifty-four of this article, shall be
7 appointed by the board of education, upon the recommendation of the
8 superintendent of schools, for a probationary period of four years,
9 except that in the case of a teacher who has rendered satisfactory
10 service as a regular substitute for a period of up to two years, or such
11 teacher has rendered satisfactory service as a seasonally licensed per
12 session teacher of swimming in day schools who has served in that capac-
13 ity for a period of up to two years and has been appointed to teach the
14 same subject in day schools on an annual salary, the teacher shall be
15 appointed for a probationary period of a minimum of two years, depending
16 upon the length of the regular substitute service that shall shorten the
17 length of the probationary period; provided, however, that in the case
18 of a teacher who has been appointed on tenure in another school district
19 within the state, the school district where currently employed, or a
20 board of cooperative educational services, and who was not dismissed
21 from such district or board as a result of charges brought pursuant to
22 subdivision one of section three thousand twenty-a of this chapter, the
23 teacher shall be appointed for a probationary period of three years;
24 provided further, however, that in cities with a population of one
25 million or more, a teacher appointed under a newly created license, for
26 teachers of reading and of the emotionally handicapped, to a position
27 which the teacher has held for at least two years prior to such appoint-
28 ment while serving on tenure in another license area who was not
29 dismissed as a result of charges brought pursuant to subdivision one of
30 section three thousand twenty-a of this chapter, the teacher shall be
31 appointed for a probationary period of two years. The service of a
32 person appointed to any of such positions may be discontinued at any
33 time during such probationary period, on the recommendation of the
34 superintendent of schools, by a majority vote of the board of education.
35 Each person who is not to be recommended for appointment on tenure shall
36 be so notified by the superintendent of schools in writing not later
37 than sixty days immediately preceding the expiration of such person's
38 probationary period. In all city school districts subject to the
39 provisions of this article, failure to maintain certification as
40 required by this article and by the regulations of the commissioner
41 shall be cause for removal within the meaning of subdivision five of
42 this section.
43 (b) i. [Administrators] Except as otherwise provided for in paragraph
44 (c) of this subdivision, administrators, directors, supervisors, princi-
45 pals and all other members of the supervising staff, except executive
46 directors, associate, assistant, district and community superintendents
47 and examiners, appointed prior to July first, two thousand fifteen and
48 authorized by section twenty-five hundred fifty-four of this article,
49 shall be appointed by the board of education, upon the recommendation of
50 the superintendent or chancellor of schools, for a probationary period
51 of three years. The service of a person appointed to any of such posi-
52 tions may be discontinued at any time during the probationary period on
53 the recommendation of the superintendent of schools, by a majority vote
54 of the board of education.
55 ii. [Administrators] Except as otherwise provided for in paragraph (c)
56 of this subdivision, administrators, directors, supervisors, principals
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1 and all other members of the supervising staff, except executive direc-
2 tors, associate, assistant, district and community superintendents and
3 examiners, appointed on or after July first, two thousand fifteen and
4 authorized by section twenty-five hundred fifty-four of this article,
5 shall be appointed by the board of education, upon the recommendation of
6 the superintendent or chancellor of schools, for a probationary period
7 of four years provided that such probationary period may be extended in
8 accordance with paragraph (b) of subdivision five of this section;
9 provided, however, that in the case of a principal, administrator,
10 supervisor, or other member of the supervising staff who has been
11 appointed on tenure pursuant to this chapter as an administrator within
12 an authorized administrative tenure area in another school district
13 within the state, the school district where currently employed, or a
14 board of cooperative educational services, and who was not dismissed
15 from such district or board as a result of charges brought pursuant to
16 subdivision one of section three thousand twenty-a or section three
17 thousand twenty-b of this chapter, the principal, administrator, super-
18 visor or other member of the supervising staff shall be appointed for a
19 probationary period of three years. The service of a person appointed to
20 any of such positions may be discontinued at any time during the proba-
21 tionary period on the recommendation of the superintendent of schools,
22 by a majority vote of the board of education.
23 (c) Notwithstanding the provisions of paragraphs (a) and (b) of this
24 subdivision, the superintendent of the city school district of the city
25 of Staten Island shall have the authority to appoint, with the approval
26 of the school board, principals and city wide administrators. Such
27 superintendent may appoint assistant principals and other clerical and
28 administrative staff without the approval of the school board. Such
29 assistant principals, clerical and administrative staff shall serve in
30 accordance with the provisions of paragraphs (a) and (b) of this subdi-
31 vision.
32 § 4-018. Section 2576 of the education law is amended by adding a new
33 subdivision 4-a to read as follows:
34 4-a. In the city of Staten Island such estimate shall be filed with
35 the officer authorized to receive other department estimates and the
36 same acted on by such officer and by the common council of such city in
37 the same manner and with the same effect as other department estimates.
38 The common council is also authorized, in its discretion, to include in
39 such budget a sum for any of the purposes enumerated in paragraph c of
40 subdivision one of this section, and any further amount for such
41 purposes as may be authorized by a tax election held in such city pursu-
42 ant to the provisions of this chapter. After the adoption of such budget
43 the common council shall cause the amount thereof to be included in the
44 tax and assessment roll of the city and the same shall be collected in
45 the same manner and at the same time as other taxes of the city are
46 collected, and placed to the credit of the board of education of the
47 city school district of such city.
48 § 4-019. Section 2579 of the education law is amended by adding a new
49 subdivision 4 to read as follows:
50 4. If the city of Staten Island shall issue obligations to defray, in
51 whole or in part, the expense of the construction, improvement and
52 equipment of school buildings or the purchase or acquisition of school
53 sites, the proceeds of the sale of such bonds shall be paid into the
54 treasury of the city and placed to the credit of the board of education
55 of the city school district of such city. As such obligations become
56 due the municipal authorities of the city shall include in the tax levy,
S. 8578 162
1 and assess upon the property of the city, the amount necessary to pay
2 such bonds and interest thereon.
3 § 4-020. Additional transitory provisions relating to the city school
4 district of the city of Staten Island. 1. The board of education of the
5 city school district of the city of Staten Island shall possess those
6 powers and duties as are authorized for a city school district pursuant
7 to article 52 of the education law, as amended by this act. In further-
8 ance of such powers and duties the board shall confer with the mayor,
9 the comptroller and the common council of the city of Staten Island and
10 the board of education of the preceding municipality for the purpose of
11 preparing for submission and implementation of a budget for the school
12 year commencing on the first of July in the second year next succeeding
13 the date on which this act shall have become a law and to take such
14 other actions as may be necessary and appropriate to provide for the
15 operation of the city school district of the city of Staten Island on
16 and after the date of establishment of the city of Staten Island.
17 2. Fiscal and regulatory authority pertaining to the public schools to
18 be contained within the city school district of the city of Staten
19 Island shall remain with the board of education of the city school
20 district of the preceding municipality until the date of establishment
21 of the city of Staten Island.
22 3. All employees of the board of education of the city school district
23 of the preceding municipality and such other employees of any other
24 public entity as may be transferred pursuant to the provisions of this
25 act shall retain all rights, privileges, benefits and salaries to which
26 the employee was previously entitled as an employee of the board of
27 education of the preceding municipality. Transfers of employment to the
28 city school district of the city of Staten Island shall be conducted in
29 the same manner as is provided by for the city of Staten Island as
30 provided in this act. Such employees shall not suffer a loss of employ-
31 ment by reason of such transfer within a period of three years from the
32 effective date of such transfer nor shall any such employees be subject
33 to any additional employment probationary period by reason of such
34 transfer.
35 4. During the transition period as defined in section 1-003 of this
36 act, the city school district of the city of Staten Island may retain
37 the services of a superintendent of schools, a chief financial officer
38 and such other staff as to which funding shall have been provided by the
39 mayor and the common council of the city of Staten Island.
40 5. All actions deemed necessary and proper to implement the provisions
41 of sections 4-001 through 4-019 of this act are hereby authorized.
42 § 5-001. Transfer of the college of Staten Island. 1. The legislature
43 finds that due to the establishment of the city of Staten Island, the
44 transfer of the college of Staten Island from the city university of New
45 York to the state university of New York is a public purpose. Such
46 transfer shall not affect the title to the real property of the college
47 of Staten Island which shall continue to be held by the state of New
48 York, except that notwithstanding the provisions of paragraph b of
49 subdivision 1 of section 6219 of the education law if such real property
50 ceases to be used for college purposes, title to such property shall
51 revert to the city of Staten Island as successor in interest to the
52 prior municipal government of the geographical area of Staten Island.
53 The college of Staten Island is hereby transferred to the state univer-
54 sity of New York. Such transfers shall include all furnishings, equip-
55 ment, records and all other property normally allocated to the college
56 of Staten Island by the city university of New York.
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1 2. The college of Staten Island is hereby transferred from the city
2 university of New York to the state university of New York. The college
3 of Staten Island shall continue to offer a full range of baccalaureate
4 degree programs and associate degree programs, selected masters degree
5 programs and provide faculty participation in research and doctoral
6 programs at the graduate center of the city university of New York. The
7 city of Staten Island shall serve as local sponsor for the two year
8 component of the college of Staten Island and such component shall be
9 subject to the provisions of section 6304 of the education law. Such two
10 year component shall be a part of the state university of New York and
11 shall not be governed by a community college board of trustees.
12 3. (a) Whenever the term "city university of New York" is referred to
13 or designated in any law, general, special or local, contract, lease,
14 judgment, decision or document pertaining to the functions, powers and
15 duties relating to the college of Staten Island hereby continued in,
16 transferred and assigned to, or devolved upon, the state university of
17 New York, such reference or designation shall be deemed to refer to and
18 include the state university of New York, so far as such law, contract,
19 lease, judgment, decision or document pertains to matters which are
20 within its jurisdiction by reason of the redesignation, continuation,
21 transfer, assignment and devolution of functions, powers and duties made
22 by this act.
23 (b) All contracts, leases and other agreements entered into by the
24 city university of New York relating to the college of Staten Island
25 before the effective date of this section shall be conducted and
26 completed by the state university of New York in the same manner and
27 under the same terms and conditions and with the same effect as if the
28 same had been conducted and completed by the state university of New
29 York. In addition, any contracts, leases and other agreements entered
30 into by the state university of New York prior to the effective date of
31 this section shall remain in full force and effect and shall be
32 conducted and completed by the state university of New York.
33 (c) All rights, title and interest in personal property used for
34 educational or administrative purposes of the college of Staten Island
35 of the city university of New York vested in the city university of New
36 York on the effective date of this section are hereby transferred,
37 assigned and devolved upon the state university of New York.
38 (d) No existing right or remedy of any character shall be lost,
39 impaired or affected, nor shall any new right or remedy of any character
40 accrue to or for the benefit of any person by reason of the transfer of
41 the college of Staten Island pursuant to the provisions of this act.
42 (e) No action or proceeding based upon a cause of action which arose
43 prior to the effective date of this section brought by or against the
44 board of trustees of the city university of New York, the city universi-
45 ty construction fund, the board of trustees of the state university of
46 New York or the college of Staten Island shall be affected by any
47 provision of this act.
48 (f) Any lease entered into by the city university of New York for the
49 purposes of the college of Staten Island before the effective date of
50 this section is hereby transferred, assigned and devolved upon the state
51 university of New York, notwithstanding any provision that may be
52 contained therein providing for the nonassignability of such lease and
53 any such provision shall be deemed to be void as against the public
54 policy of the state and of no force and effect.
55 4. A council for the college of Staten Island is hereby established
56 pursuant to section 356 of the education law. It shall consist of ten
S. 8578 164
1 members, nine of whom shall be appointed by the governor and one of whom
2 shall be elected by and from among the students of the institution. Such
3 voting members shall be subject to every provision of any general,
4 special or local law, ordinance, charter, code, rule or regulation
5 applying to the voting members of such board with respect to the
6 discharge of their duties including, but not limited to those provisions
7 setting forth codes of ethics, disclosure requirements and prohibiting
8 business and professional activities. The election of the student member
9 shall be conducted in accordance with rules and regulations promulgated
10 by the respective representative campus student association in accord-
11 ance with guidelines established by the state university trustees. One
12 member shall be designated by the governor as chairman. Vacancies shall
13 be filled for the unexpired term in the same manner as original
14 selections. The term of office for each council member shall be seven
15 years. The term of office for the student member shall be one year. In
16 the event the student member ceases to be a student at the institution
17 such member shall be required to resign. Members appointed by the gover-
18 nor may be removed by the governor. Members elected by the students of
19 the institution may be removed by such students in accordance with rules
20 and regulations promulgated by the respective representative campus
21 student association in accordance with guidelines promulgated by the
22 state university trustees. Members of such council shall receive no
23 compensation for their services but shall be reimbursed for the expenses
24 actually and necessarily incurred by them in the performance of their
25 duties hereunder.
26 5. All employees of the college of Staten Island of the city universi-
27 ty of New York shall be transferred to employment in the state universi-
28 ty of New York and shall retain all rights, privileges, benefits and
29 salaries to which the employee was previously entitled as an employee of
30 the city university of New York.
31 Employees of the college of Staten Island of the city university of
32 New York transferred to employment in the state university of New York
33 pursuant to the provisions of this act shall not be involuntarily
34 assigned to work outside the geographical boundaries of the city of
35 Staten Island nor shall any such employees suffer a loss of employment
36 by reason of such transfer within a period of three years from the
37 effective date of such transfer nor shall any such employees be subject
38 to any additional employment probationary period by reason of their
39 transfer.
40 Employees transferred from the college of Staten Island of the city
41 university of New York to employment in the state university of New
42 York except for those designated managerial or confidential shall be
43 included in employer - employee negotiating units comparable to existing
44 units in the city university of the city of New York. With respect to
45 employees to be placed in such negotiating units, the public employee
46 organization recognized or certified to represent the employees in
47 comparable city university of the city of New York negotiating units
48 shall be recognized as the unit representative.
49 All rights, privileges and benefits provided by collectively bargained
50 agreements to employees of the city university of the city of New York
51 shall be continued for such employees transferred, reappointed or other-
52 wise employed until such time as successor collective bargaining agree-
53 ments are negotiated.
54 The state university of New York shall consult and bargain on all
55 terms and conditions of employment with the appropriate public employee
56 organization with respect to the establishment of any new titles which
S. 8578 165
1 are similar to or reasonably related to titles already represented by
2 such public employee organizations in the city university of the city of
3 New York.
4 Any such titles for which terms and conditions are bargained pursuant
5 to this subdivision shall be deemed to be successor titles within the
6 meaning of applicable law. So long as the responsibilities of employees
7 in these titles are reasonably related to the responsibilities of
8 employees currently represented by public employee organizations, such
9 titles shall be accredited or placed in a negotiating unit represented
10 by such public employee organizations.
11 If a dispute arises, the office of collective bargaining shall deter-
12 mine which public employee organization is appropriate to represent
13 transferees, other hires, or employees in a new title on the basis of
14 the title's community of interest with titles in the state university of
15 New York and the city university of the city of New York.
16 No existing right or remedy of any character shall be lost or impaired
17 or affected by reason of the adoption of this charter.
18 6. On and after the first of July in the second year next succeeding
19 the date on which this act shall have become a law, officers and employ-
20 ees who become employees of the state pursuant to this act shall become
21 members of the New York state employees' retirement system to the extent
22 permitted or required by the provisions of the retirement and social
23 security law, except that any employee who is a member of the New York
24 city employees' retirement system may elect to continue membership in
25 the New York city employees' retirement system. Any election pursuant to
26 this section shall be made no later than the one hundred twentieth day
27 after the effective date of this section, by filing a written notice
28 thereof with the administrative head of the New York state employees'
29 retirement system and the New York city employees' retirement system
30 and, once made and filed, shall be irrevocable. Upon the retirement of
31 an employee who has made such an election, the calculation of final
32 average salary by the New York city employees' retirement system shall
33 be performed as if the salary earned as a state employee on and after
34 such effective date were earned in New York city employment. In the case
35 of an employee who becomes a member of the New York state employees'
36 retirement system pursuant to this section, the New York city employees'
37 retirement system shall make a transfer of reserves, contributions and
38 credits to the New York state employees' retirement system, in the
39 manner required by section 43 of the retirement and social security law.
40 The comptroller of the city of New York shall certify to the state
41 administrator the amount of money required to be paid by the state of
42 New York for pension costs resulting from elections made pursuant to
43 this section. The comptroller of the state of New York shall pay to the
44 New York city employees' retirement system, upon approval by the state
45 administrator, the amounts so certified by the comptroller of the city
46 of New York. The comptroller of the city of New York shall also certify
47 to the state administrator the amount of money required to be contrib-
48 uted by each of such employees. The comptroller of the state of New
49 York shall be authorized to withhold the contributions of such employees
50 and pay that amount to the New York city employees' retirement system.
51 The amount so certified shall be the same as the amounts required to be
52 contributed for similarly situated city employees by the city of New
53 York and by employees of the city of New York.
54 § 5-002. Subdivision 3 of section 352 of the education law, as amended
55 by chapter 13 of the laws of 2021, is amended to read as follows:
S. 8578 166
1 3. The state university shall consist of the four university centers
2 at Albany, Binghamton, Buffalo and Stony Brook, the designated colleges
3 of arts and sciences at Brockport, Buffalo, Cortland, Fredonia, Geneseo,
4 New Paltz, Old Westbury, Oneonta, Oswego, Plattsburgh, Potsdam [and],
5 Purchase and Staten Island, empire state college, the agricultural and
6 technical colleges at Alfred, Canton, Cobleskill, Delhi, Farmingdale and
7 Morrisville, downstate medical center, upstate medical center, the
8 college of optometry, the college of environmental science and forestry,
9 maritime college, the college of technology at Utica/Rome, the statutory
10 or contract colleges at Cornell university and Alfred university, and
11 such additional universities, colleges and other institutions, facili-
12 ties and research centers as have been or hereafter may be acquired,
13 established, operated or contracted to be operated for the state by the
14 state university trustees.
15 § 5-003. Paragraphs (f) and (g) of subdivision 2 and paragraph (d) of
16 subdivision 3 of section 6204 of the education law, paragraph (f) of
17 subdivision 2 as amended by chapter 306 and paragraph (g) of subdivision
18 2 as added by chapter 305 of the laws of 1979, and paragraph (d) of
19 subdivision 3 as amended by chapter 98 of the laws of 2010, are amended
20 to read as follows:
21 (f) The five trustees appointed by the mayor shall include at least
22 one resident of each of the [five] boroughs of the city of New York.
23 (g) The trustees appointed by the governor shall include at least one
24 resident of each of the [five] boroughs of the city of New York.
25 (d) (i) The board of trustees shall hold at least one public hearing
26 each year in each of the [five] boroughs of the city of New York. The
27 purpose of such hearing shall be to receive testimony and statements
28 from concerned individuals about university issues.
29 (ii) The board of trustees shall fix the time, place, duration and
30 format of each hearing.
31 (iii) At least thirty days notice of the hearing shall be given by the
32 chairperson of the board of trustees to all of the trustees, to all
33 presidents of educational units, to the chair of faculty-senate bodies
34 of educational units, to all student government presidents of educa-
35 tional units, to the borough president, the members of the city council,
36 the members of the board of estimate, the local community boards of the
37 borough where the hearing is to be held and to the media. The notice
38 shall contain the time, place and date of the public hearing. Such
39 information shall be made electronically available on the city universi-
40 ty of New York website. Any such meeting of the board of trustees shall
41 be conducted in accordance with article seven of the public officers
42 law.
43 (iv) At least three trustees shall attend each hearing.
44 § 6-001. The judiciary law is amended by adding a new article 5-C to
45 read as follows:
46 ARTICLE 5-C
47 INTERIM COURT STRUCTURE FOR THE CITY OF STATEN ISLAND
48 Section 178. Declaration of legislative findings and intent.
49 178-a. Continuation of court proceedings.
50 178-b. Judicial transition.
51 178-c. Judiciary jurisdiction.
52 178-d. Judiciary; family court.
53 178-e. Judiciary; criminal court.
54 178-f. Judiciary; civil court.
55 178-g. Judicial transition; structure.
56 178-h. Unified court system; services.
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1 178-i. Judicial transition services.
2 178-j. Effect of existing collective bargaining agreements.
3 § 178. Declaration of legislative findings and intent. The interim
4 court structure established for the city of Staten Island by this arti-
5 cle is being enacted in the exercise of the legislature's constitutional
6 authority to provide for the creation and organization of units of local
7 government. The legislature finds that it is not possible to create,
8 fund and staff a new and jurisdictionally distinct court structure for
9 the city of Staten Island which would be fully operational on the effec-
10 tive date of such city's incorporation. The legislature also finds that
11 the creation of a jurisdictionally distinct court structure for the city
12 of Staten Island would likely disrupt the orderly administration of
13 justice in such city and the county of Richmond, unnecessarily inconven-
14 ience and confuse litigants, and increase significantly the cost of
15 conducting litigation within such city and county. The purpose of this
16 article is to prevent an interregnum in the operations of the unified
17 court system in connection with the incorporation of the city of Staten
18 Island and its organization as a functional unit of local government. By
19 establishing an interim court structure for such city, the legislature
20 intends to relieve taxpayers and litigants of the expense, inconven-
21 ience, confusion, and delay that would be occasioned by the creation of
22 a new court structure for such city. By preserving the existing trial
23 court structure in the county of Richmond during the period of govern-
24 mental reorganization following the incorporation of the city of Staten
25 Island, the legislature intends that all inhabitants of such county and
26 city will continue to possess the same rights and access to the unified
27 court system that they possessed immediately prior to the incorporation
28 of such city.
29 § 178-a. Continuation of court proceedings. The incorporation of the
30 city of Staten Island shall not alter the jurisdiction of any court
31 existing in the county of Richmond immediately prior to the effective
32 date of such city's incorporation. All courts in such county are contin-
33 ued, and no civil or criminal appeal, action or proceeding pending
34 before any court or any judge or justice on the effective date of incor-
35 poration shall abate or be impaired; and every such appeal, action or
36 proceeding shall be continued in the court in which such appeal, action
37 or proceeding was pending immediately prior to such effective date.
38 § 178-b. Judicial transition. There is established a judicial transi-
39 tion period for the city of Staten Island. Such period shall commence
40 on the effective date of such city's incorporation and terminate on
41 December thirty-first in the fifth year following such incorporation or
42 until the provisions of this article are specifically superseded by
43 state law.
44 § 178-c. Judiciary jurisdiction. During the judicial transition peri-
45 od:
46 (1) the county of Richmond shall be deemed to be a county within the
47 city of New York for all purposes of article six of the state constitu-
48 tion;
49 (2) the county of Richmond shall be deemed to be a county within the
50 city of New York for the purposes of section five hundred two of this
51 chapter;
52 (3) the city of Staten Island shall be deemed to be a part of the city
53 of New York for the purposes of section one hundred fifty-five and arti-
54 cles two-A and two-B of title two of the vehicle and traffic law; and
55 (4) the judge of the surrogate's court in the county of Richmond shall
56 be deemed to be a judge of a surrogate's court within the city of New
S. 8578 168
1 York for the purposes of subdivision c of section twelve of article six
2 of the state constitution.
3 § 178-d. Judiciary; family court. Notwithstanding section one hundred
4 twenty-one of the family court act, the county of Richmond shall be
5 deemed to be a county within the city of New York during the judicial
6 transition period, and there shall be no fewer than three judges of such
7 court who shall be residents of the county of Richmond. A vacancy occur-
8 ring in the office of any such judge during the judicial transition
9 period shall be filled by the mayor of the city of New York upon the
10 recommendation of the mayor of the city of Staten Island consistent with
11 the provisions of section two hundred sixteen-a of the family court act.
12 § 178-e. Judiciary; criminal court. Notwithstanding the provisions of
13 sections twenty and twenty-two of the New York city criminal court act,
14 the city of Staten Island shall be deemed to be part of the city of New
15 York during the judicial transition period, and there shall be no fewer
16 than three judges of such court who shall be residents of the city of
17 Staten Island. A vacancy occurring in the office of such judge during
18 the judicial transition period shall be filled by the mayor of the city
19 of New York upon the recommendation of the mayor of the city of Staten
20 Island consistent with the provisions of section twenty-two of the New
21 York city criminal court act.
22 § 178-f. Judiciary; civil court. Notwithstanding the provisions of
23 section one hundred two-a of the New York city civil court act, the city
24 of Staten Island shall be deemed to be part of the city of New York
25 during the judicial transition period, and there shall be no fewer than
26 three judges of such court who shall be residents of the city of Staten
27 Island. A vacancy occurring in the office of such judge otherwise than
28 by expiration of term during the judicial transition period shall be
29 filled by the mayor of the city of New York upon the recommendation of
30 the mayor of the city of Staten Island consistent with the provisions of
31 section one hundred two-a of the New York city civil court act.
32 § 178-g. Judicial transition; structure. The mayor and the common
33 council of the city of Staten Island, in consultation with the chief
34 administrator of the courts, shall develop a plan for an appropriate
35 court structure for the city of Staten Island following the judicial
36 transition period. Such plan shall include recommendations for the
37 jurisdiction of each court, the number of judges needed, a personnel
38 structure for nonjudicial officers and employees, necessary physical
39 facilities, and a fiscal analysis of each component of the plan. Such
40 plan shall be submitted to the governor, the legislature and to the
41 chief judge of the state, no later than three years following commence-
42 ment of the judicial transition period.
43 § 178-h. Unified court system; services. The chief administrator of
44 the courts is authorized to do all things necessary to continue the
45 efficient operation of the unified court system within the county of
46 Richmond and the city of Staten Island during and after the judicial
47 transition period.
48 § 178-i. Judicial transition services. During the judicial transition
49 period, the mayor and the comptroller of the city of Staten Island and
50 the mayor and the comptroller of the city of New York are authorized to
51 enter into agreements relating to the provision of municipal services
52 for the courts within the city of Staten Island. Such municipal services
53 may include, but shall not be limited to, correctional services.
54 § 178-j. Effect of existing collective bargaining agreements.
55 Notwithstanding any other provision of law:
S. 8578 169
1 (1) The provisions of this article shall not alter any existing
2 collective negotiating unit of nonjudicial employees or any provision of
3 a collective negotiating agreement in effect on the effective date of
4 this article.
5 (2) To the extent permitted by the state constitution, where a judi-
6 cial or nonjudicial officer or employee of the unified court system is
7 required as a condition of their continued employment to reside in the
8 city of New York and, on the effective date of this article, they reside
9 in the county of Richmond, such officer or employee shall be deemed to
10 reside in the city of New York for so long as they remain in their posi-
11 tion, provided such officer or employee continues to reside in the coun-
12 ty or in the city of New York.
13 (3) The nonjudicial personnel of the courts affected by this article
14 in office on the effective date of this article shall, to the extent
15 practicable, be continued without diminution of salaries and with the
16 same status and rights in the courts continued in the county of Rich-
17 mond.
18 § 7-001. Section 31 of the public housing law, as amended by chapter
19 829 of the laws of 1947, is amended to read as follows:
20 § 31. Scope of authority's jurisdiction. The territorial jurisdiction
21 of an authority established for a city or village shall be coterminous
22 with the territorial limits of such city or village, and the territorial
23 jurisdiction of an authority established for a town shall include all
24 such town, except that such territorial jurisdiction shall not include
25 any territory that lies within the boundaries of any village, whether
26 such village has or has not established an authority. The members of
27 such town authority shall if they consent and when authorized by resol-
28 utions of the town board and the village board, act as the authority in
29 and for said village, the same as if it had been created especially for
30 said village.
31 Notwithstanding the provisions of this section, the New York city
32 housing authority, the creation and establishment of which was validated
33 pursuant to section four hundred of this chapter, shall continue to have
34 territorial jurisdiction for the five counties which had constituted
35 parts of the city of New York prior to the establishment of the city of
36 Staten Island.
37 § 7-002. Subdivision 3 of section 402 of the public housing law, as
38 added by chapter 96 of the laws of 2013, is amended to read as follows:
39 3. a. The authority shall consist of seven members appointed by the
40 mayor, one of whom shall be designated by the mayor as [chairman] chair-
41 person removable at [his or her] the mayor's pleasure. The term of
42 office of each member other than the [chairman] chairperson shall be
43 three years, provided, however, that the initial appointments of the six
44 members other than the [chairman] chairperson shall be as follows: two
45 shall be appointed for one-year terms, two shall be appointed for two-
46 year terms, and two shall be appointed for three-year terms. The mayor
47 shall file with the commissioner of housing a certificate of appointment
48 of the [chairman] chairperson and of each member. Any member other than
49 the [chairman] chairperson may be removed by the mayor upon filing in
50 the office of the commissioner of citywide administrative services and
51 serving upon the member the reasons therefor. Such document setting
52 forth the reasons shall be made available to the general public, which
53 shall include but not be limited to publishing the reasons on the New
54 York city housing authority's website. Three of such members shall be a
55 tenant of record or an authorized member of the tenant household, in
56 good standing, residing in one of the federal projects owned or operated
S. 8578 170
1 by the authority, provided, however, that for the initial appointments
2 of the three such members, one shall be among the members initially
3 appointed for one-year terms, one shall be among the members initially
4 appointed for two-year terms, and one shall be among the members
5 initially appointed for three-year terms. A vacancy in the office of a
6 member other than the [chairman] chairperson occurring otherwise than by
7 expiration of term shall be filled for the unexpired term. Further, any
8 vacancy in the office of a tenant member shall only be filled by the
9 appointment of an eligible tenant member, and such appointment shall be
10 made within ninety days of such vacancy.
11 b. Notwithstanding paragraph a of this subdivision, upon the estab-
12 lishment of a city of Staten Island and for so long as the New York city
13 housing authority shall have territorial jurisdiction in the city of
14 Staten Island, such authority shall consist of eight members, the eighth
15 of whom shall be appointed by the mayor of Staten Island and shall serve
16 for a five-year term. The mayor of the city of Staten Island shall file
17 with the commissioner of housing and the chairperson of the New York
18 city housing authority a certificate of appointment of such member. Such
19 member may be removed by the mayor of Staten Island for cause after a
20 public hearing. Such member may be of any political party. A vacancy in
21 the office of such member occurring other than by expiration of a term
22 shall be filled for the unexpired term.
23 § 7-003. Section 455 of the education law, as amended by chapter 724
24 of the laws of 1976, is amended to read as follows:
25 § 455. Relationship with the board of education and the city of New
26 York. 1. In order most effectively to carry out its corporate purposes,
27 the fund shall cooperate with the director of management and budget and
28 the board of education of the city of New York in matters relating to
29 land acquisition and capital planning for school buildings and facili-
30 ties. During the course of construction, reconstruction, rehabilitation
31 and improvement of combined occupancy structures the fund shall consult
32 with personnel of such board as the work progresses in matters relating
33 to space requirements, site plans, architectural concept, and substan-
34 tial changes in the plans and specifications therefor, and in matters
35 relating to the original furnishings, equipment, machinery and apparatus
36 needed to furnish and equip the school portion of such buildings and
37 structures, upon the completion of work. The board, on its part, shall
38 perform such functions and services for the fund as may be requested and
39 the fund shall pay to the board, from any monies of the fund available
40 for such purpose, the reasonable cost of such functions and services.
41 2. Notwithstanding subdivision one of this section, upon the estab-
42 lishment of a city of Staten Island, with respect to any fund activities
43 to take place within such city of Staten Island, the fund shall cooper-
44 ate with the mayor and comptroller of such city of Staten Island and the
45 board of education of the city school district of the city of Staten
46 Island in matters relating to land acquisition and capital planning for
47 school buildings and facilities to the same extent as with the respec-
48 tive officials of the city of New York.
49 § 7-004. Paragraph (c) of subdivision 1 of section 462 of the educa-
50 tion law, as separately amended by chapters 724 and 729 of the laws of
51 1976, is amended to read as follows:
52 (c) (i) To assure the continued operation and solvency of the capital
53 reserve fund for the carrying out of the public purposes of this arti-
54 cle, provision is made in paragraph (a) of this subdivision for the
55 accumulation in the capital reserve fund of an amount equal to the maxi-
56 mum amount of principal and interest maturing and becoming due and sink-
S. 8578 171
1 ing fund payments required to be made in any succeeding fiscal year on
2 all bonds of the fund then outstanding secured by the capital reserve
3 fund. In order further to assure such maintenance of the capital
4 reserve fund, the board of education shall annually request from the
5 city of New York and pay over to the fund, for deposit in the capital
6 reserve fund, such sum, if any, as shall be certified by the [chairman]
7 chairperson of the fund to the board, the mayor and the director of
8 management and budget of the city of New York as necessary to restore
9 the capital reserve fund to an amount equal to the maximum amount of
10 principal and interest maturing and becoming due and sinking fund
11 payments required to be made in the next succeeding fiscal year on the
12 bonds of the fund then outstanding secured by the capital reserve fund;
13 provided, however, that such sum shall have been first appropriated by
14 the city to the board or shall otherwise have been made lawfully avail-
15 able to the board for such purpose. The [chairman] chairperson of the
16 fund shall annually, not later than the fifteenth day of February in
17 each year, make and deliver to the board, the mayor and the director of
18 management and budget [his] their certificate stating the amount, if
19 any, required to restore the capital reserve fund to the amount afore-
20 said and the amount so stated, if any, shall be paid to the fund by the
21 board during the then current fiscal year of the fund. In the event of
22 the failure or inability of the board to pay over the stated amount to
23 the fund on or before August first of the same year, the [chairman]
24 chairperson of the fund shall forthwith make and deliver to the comp-
25 troller of the state of New York and the mayor and comptroller of the
26 city of Staten Island a further certificate restating the amount so
27 required and, after the comptroller of the state of New York shall have
28 given written notice to the commissioner of education, the mayor and
29 director of management and budget and the mayor and comptroller of the
30 city of Staten Island, such amount shall be paid over to the fund by the
31 comptroller of the state of New York out of the next payment of state
32 aid apportioned, first, to the city of New York on behalf of the city
33 school district of the city of New York for the support of common
34 schools or such other aid or assistance payable in support of common
35 schools as shall supersede or supplement such state aid for the support
36 of common schools, including federal moneys apportioned by the state to
37 the city of New York on behalf of the city school district for the
38 support of common schools and, thereafter, if such amounts are insuffi-
39 cient, from such similar aid payable to the city of Staten Island. Any
40 amount so paid over to the fund shall be deducted from the corresponding
41 apportionment of state education aid or other aid or assistance for
42 education otherwise credited to the board of education for its purposes
43 and shall not obligate the state to make or entitle the city or the
44 board of education or city of Staten Island to receive any additional or
45 increased apportionment or payment of state aid for school purposes.
46 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after
47 the first of January next succeeding the date on which this subparagraph
48 shall have become a law, the fund shall not issue any bonds, notes or
49 other obligations secured by a capital reserve fund into which state aid
50 or other aid otherwise payable to the city of Staten Island is to be
51 deposited pursuant to this paragraph, provided, however, the fund may
52 issue refunding bonds to pay bonds previously issued, which refunding
53 bonds may be so secured if the fund gives reasonable adequate notice of
54 its intention to issue such refunding bonds to the mayor of the city of
55 Staten Island and the comptroller of the city of Staten Island and both
56 such officials are given a reasonable opportunity to participate at the
S. 8578 172
1 meeting or meetings of the board of the fund at which action is taken to
2 issue such refunding bonds.
3 § 7-005. Paragraph (c) of subdivision 3 of section 462 of the educa-
4 tion law, as amended by chapter 474 of the laws of 1996, is amended to
5 read as follows:
6 (c) (i) To assure the continued operation and solvency of the fund for
7 the carrying out of the public purposes of this article, provision is
8 made in paragraph (a) of this subdivision for the accumulation in a debt
9 service reserve fund of an amount equal to the debt service reserve fund
10 requirement on all bonds of the fund then outstanding secured by a debt
11 service or debt service reserve fund. In order further to assure such
12 maintenance of a debt service reserve fund, the board of education shall
13 annually request from the city of New York and pay over to the fund
14 after making the payment required by paragraph (c) of subdivision one of
15 this section for deposit in a debt service reserve fund, such sum, if
16 any, as shall be certified by the [chairman] chairperson of the fund to
17 the board, the mayor and the director of the budget of the city of New
18 York as necessary to restore such debt service reserve fund to an amount
19 equal to the debt service reserve fund requirement for the bonds of the
20 fund secured by such debt service reserve fund; provided, however, that
21 such sum shall have been first appropriated by the city to the board or
22 shall otherwise have been made lawfully available to the board for such
23 purpose. The [chairman] chairperson of the fund shall annually, not
24 later than the fifteenth day of February in each year, make and deliver
25 to the board, the mayor and the director of the budget [his] their
26 certificate stating the amount, if any, required to restore a debt
27 service reserve fund to the amount aforesaid and the amount so stated
28 after making the payment required by paragraph (c) of subdivision one of
29 this section if any, shall be paid to the fund by the board during the
30 then current fiscal year of the fund. In the event of the failure or
31 inability of the board to pay over the stated amount to the fund on or
32 before August first of the same year, the [chairman] chairperson of the
33 fund shall forthwith make and deliver to the comptroller of the state of
34 New York and the mayor and comptroller of the city of Staten Island a
35 further certificate restating the amount so required and, after the
36 comptroller of the state of New York shall have given written notice to
37 the commissioner, the mayor and director of the budget and the mayor and
38 comptroller of the city of Staten Island, such amount after making the
39 payment required by paragraph (c) of subdivision one of this section
40 shall be paid over to the fund by the comptroller of the state of New
41 York out of the next payment of state aid apportioned, first, to the
42 city of New York on behalf of the city school district of the city of
43 New York for the support of common schools or such other aid or assist-
44 ance payable in support of common schools as shall supercede or supple-
45 ment such state aid for the support of common schools, including federal
46 moneys apportioned by the state to the city of New York on behalf of the
47 city school district for the support of common schools and, thereafter,
48 if such amounts are insufficient, from such similar aid payable to the
49 city of Staten Island. Any amount so paid over to the fund under para-
50 graph (c) of subdivision one of this section shall be deducted from the
51 corresponding apportionment of state education aid or other aid or
52 assistance for education otherwise credited to the board of education or
53 the city of Staten Island for its purposes and shall not obligate the
54 state to make or entitle the city or the board of education or the city
55 of Staten Island to receive any additional or increased apportionment or
56 payment of state aid for school purposes.
S. 8578 173
1 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after
2 the first of January next succeeding the date on which this subparagraph
3 shall have become a law, the fund shall not issue any bonds, notes or
4 other obligations secured by a debt service reserve fund into which
5 state aid or other aid otherwise payable to the city of Staten Island is
6 to be deposited pursuant to this paragraph, provided, however, the fund
7 may issue refunding bonds to pay bonds previously issued, which refund-
8 ing bonds may be so secured if the fund gives reasonable adequate notice
9 of its intention to issue such refunding bonds to the mayor of the city
10 of Staten Island and the comptroller of the city of Staten Island and
11 both such officials are given a reasonable opportunity to participate at
12 the meeting or meetings of the board of the fund at which action is
13 taken to issue such refunding bonds.
14 § 7-006. Subdivision 1 of section 1045-c of the public authorities
15 law, as added by chapter 513 of the laws of 1984, is amended to read as
16 follows:
17 1. A corporation known as the New York city municipal water finance
18 authority is hereby created for public purposes and charged with the
19 duties and having the powers provided in this title. The authority shall
20 be a body corporate and politic constituting a public benefit corpo-
21 ration. It shall be administered by a board of directors consisting of
22 [seven] eight members as follows: the commissioner of environmental
23 protection of the city, the state commissioner of environmental conser-
24 vation, the director of management and budget of the city, the commis-
25 sioner of finance of the city, two public members to be appointed by the
26 mayor, one public member to be appointed by the mayor of Staten Island
27 and one public member to be appointed by the governor. One public
28 member appointed by the mayor shall serve for a term of one year, one
29 public member appointed by the mayor shall serve for a term of two
30 years, and the public [member] members appointed by the governor and
31 mayor of Staten Island shall serve for a term of two years from January
32 first next succeeding the date of their appointment. Their successors
33 shall serve for terms of two years each. Members shall continue in
34 office until their successors have been appointed and qualified. The
35 mayor, mayor of Staten Island or the governor shall fill any vacancy
36 which may occur by reason of death, resignation or otherwise in a manner
37 consistent with the original appointment. A public member may be
38 removed by the mayor, mayor of Staten Island, or the governor, [whichev-
39 er] whoever appointed [him] such member, for cause, but not without an
40 opportunity to be heard in person or by counsel, in [his] such member's
41 defense, upon not less than ten days' notice. The mayor shall select a
42 [chairman] chairperson from among the directors appointed by [him] such
43 mayor who shall serve in such capacity at [his] their pleasure. The
44 [chairman] chairperson shall preside over all meetings of the board of
45 directors and shall have such other duties as may be prescribed by the
46 board.
47 § 7-007. Subdivision 2 of section 1045-f of the public authorities
48 law, as added by chapter 513 of the laws of 1984, is amended to read as
49 follows:
50 2. The water board shall consist of seven members, six of which shall
51 be appointed by the mayor and, the seventh of which shall be appointed
52 by the mayor of Staten Island. The mayor of Staten Island shall fill
53 the earlier of the first expiration of a term or the first vacancy
54 occurring after the date of establishment of the city of Staten Island
55 and any successor thereto. Terms of office of the members shall be two
56 years except that the terms of four of the board members first appointed
S. 8578 174
1 shall be one year. At least one member shall have experience in the
2 science of water resource development. No member shall be a director of
3 the authority. The mayor shall appoint a [chairman] chairperson from
4 among the members of the board. All members shall continue to hold
5 office until their successors are appointed and qualified. Vacancies
6 shall be filled in the manner provided for original appointments. Vacan-
7 cies, occurring otherwise than by expiration of term of office, shall be
8 filled in the same manner as original appointments for the unexpired
9 terms.
10 § 7-008. Subdivision 5 of section 1045-f of the public authorities
11 law, as added by chapter 513 of the laws of 1984, is amended to read as
12 follows:
13 5. The appointing mayor may remove any member for inefficiency,
14 neglect of duty or misconduct in office after giving such member a copy
15 of the charges against such member and an opportunity to be heard and
16 defended, in person or by counsel, upon not less than ten days' notice.
17 If any member shall be so removed, the appointing mayor shall file in
18 the office of the clerk of the city a complete statement of charges
19 against such member, and the appointing mayor's findings thereon,
20 together with a complete record of the proceedings.
21 § 7-009. Paragraphs e and f of subdivision 1 of section 656 of the
22 private housing finance law, as amended by chapter 174 of the laws of
23 1992, are amended to read as follows:
24 e. (i) To assure the continued operation and solvency of the corpo-
25 ration for the carrying out of its corporate purposes, provision is made
26 in paragraph a of this subdivision for the accumulation in each capital
27 reserve fund of an amount equal to the maximum capital reserve fund
28 requirement. In order further to assure such maintenance of each capital
29 reserve fund, there shall be paid by the city to the corporation for
30 deposit in each capital reserve fund on or before the first day of
31 April, in each year, such amount, if any, needed for the purpose of
32 restoring each such capital reserve fund to the maximum capital reserve
33 fund requirement for such fund, as shall be certified by the chairperson
34 of the corporation to the mayor and the director of management and budg-
35 et on or before the first day of December next preceding; provided that
36 any such amount shall have been first appropriated by or on behalf of
37 the city for such purpose or shall have been otherwise made available
38 from the proceeds of notes or bonds of the city authorized and issued
39 pursuant to the local finance law for such purpose, which is hereby
40 determined to be a specific object or purpose having a period of proba-
41 ble usefulness of five years. In the event of the failure or inability
42 of the city to pay over to the corporation, in full, on or before such
43 first day of April the amount so certified the chairperson of the corpo-
44 ration shall forthwith certify to the comptroller of the state of New
45 York the amount remaining unpaid and thereupon the state comptroller
46 shall pay to the corporation, out of the first moneys available for the
47 next succeeding payments of [(i)] (A) state aid apportioned to the city
48 of New York and, to the extent the amounts available therefor are insuf-
49 ficient, state aid apportioned to the city of Staten Island, as per
50 capita aid for the support of local government pursuant to section
51 fifty-four of the state finance law or [(ii)] (B) such other aid or
52 assistance payable by the state to the city and to the extent the
53 amounts available therefor are insufficient, such aid or assistance
54 payable by the state to the city of Staten Island and not otherwise
55 allocated as shall supersede or supplement such state per capita aid,
56 including federal moneys apportioned to the city and, to the extent the
S. 8578 175
1 amounts available therefor are insufficient, such moneys apportioned to
2 the city of Staten Island by the state, such amount remaining unpaid,
3 after giving written notice to the director of management and budget of
4 each amount to be paid out of such state aid, until the amount in each
5 such capital reserve fund is restored to the maximum capital reserve
6 fund requirement thereof; provided, however, that prior to the issuance
7 of any notes or bonds of the corporation pursuant to this article the
8 city shall have enacted a local law authorizing payments from such
9 sources into such a fund so long as any notes or bonds of the corpo-
10 ration shall be outstanding and unpaid, and provided further that
11 moneys, if any, payable to the city university construction fund pursu-
12 ant to the provisions of the city university construction fund act shall
13 be paid, in full, to such fund, prior to any payments therefrom to the
14 corporation. Any amount so paid over to the corporation shall be
15 deducted from the corresponding apportionment of such per capita state
16 aid otherwise payable to the city of New York or the city of Staten
17 Island, as applicable, and shall not obligate the state to make nor
18 entitle the city or the city of Staten Island to receive any additional
19 apportionment or payment of per capita state aid. All amounts paid over
20 to the corporation as provided in this [paragraph] subparagraph, includ-
21 ing amounts paid by the state comptroller out of payments of such state
22 aid, shall constitute and be accounted for as non-interest bearing loans
23 by the city or the city of Staten Island, as applicable to the corpo-
24 ration and, subject, subordinate and junior to the rights of the holders
25 of any notes or bonds of the corporation theretofore or thereafter
26 issued, shall be repaid to the city from [(i)] (A) moneys in such capi-
27 tal reserve fund in excess of the maximum capital reserve fund require-
28 ment thereof or [(ii)] (B) any moneys of the corporation not required
29 for any other of its corporate purposes.
30 (ii) Notwithstanding subparagraph (i) of this paragraph, on or after
31 the first of January next succeeding the date on which this subparagraph
32 shall have become a law, the corporation shall not issue any bonds,
33 notes or other obligations secured by a capital reserve fund into which
34 per capita state aid or other aid otherwise payable to the city of
35 Staten Island is to be deposited pursuant to this subparagraph,
36 provided, however, the corporation may issue refunding bonds to pay
37 bonds previously issued, which refunding bonds may be so secured if the
38 corporation gives reasonable adequate notice of its intention to issue
39 such refunding bonds to the mayor of the city of Staten Island and the
40 comptroller of the city of Staten Island and both such officials are
41 given a reasonable opportunity to participate at the meeting or meetings
42 of the board of the corporation at which action is taken to issue such
43 refunding bonds.
44 f. In the event the chairperson of the corporation shall certify to
45 the mayor and director of management and budget or to the state comp-
46 troller any amount necessary to restore a capital reserve fund to the
47 maximum capital reserve fund requirement thereof pursuant to subdivision
48 e of this section, the chairperson shall simultaneously deliver to the
49 mayor of the city of Staten Island and the comptroller of the city of
50 Staten Island and additionally to such persons a statement of the cause
51 or causes of such capital reserve fund deficiency and the measures to be
52 taken by the corporation or the department of housing preservation and
53 development to insure repayment of any loans made by the city or the
54 city of Staten Island to the corporation, including amounts paid by the
55 state comptroller out of payments of state aid, for the purpose of
56 restoring such capital reserve fund to the maximum capital reserve fund
S. 8578 176
1 requirement thereof and to prevent the recurrence of any such deficien-
2 cy.
3 § 7-010. Subdivision 4 of section 1680-b of the public authorities
4 law, as amended by chapter 62 of the laws of 1988, is amended to read as
5 follows:
6 4. In the event that a participating municipality fails to pay to the
7 authority when due all or part of the rentals and other payments payable
8 pursuant to any lease, sublease or agreement with the authority, the
9 chairman or another officer of the authority shall certify at the times
10 provided in this subdivision the amount of rentals and other payments
11 then due from such participating municipality and unpaid. The state
12 comptroller, upon receipt of such certificate, shall deduct the amount
13 of such rentals and other payments as remains unpaid to the authority
14 first from the aid payable to such participating municipality from the
15 court facilities incentive aid fund established by section ninety-four
16 of the state finance law and, then, from the next succeeding payments of
17 state aid apportioned to such participating municipality, as revenue
18 sharing, per capita aid, and any other aid pursuant to section fifty-
19 four of the state finance law and, then, from the next succeeding
20 payments of state aid for any local governmental administrative costs
21 that are reimbursable to the participating municipality pursuant to
22 state law and, then, from the next succeeding payments of state aid from
23 moneys appropriated pursuant to section six hundred eight of the public
24 health law and pursuant to section ten-c of the highway law; provided,
25 however, that the right of the authority to the payment of any amount
26 deducted by the state comptroller pursuant to this section from per
27 capita aid apportioned to the city of New York or, to the extent insuf-
28 ficient, the city of Staten Island shall be subject and subordinate to
29 the rights of the city university construction fund pursuant to section
30 sixty-two hundred seventy-nine of the education law, the New York city
31 housing development corporation pursuant to section six hundred fifty-
32 six of the private housing finance law, the trustees of the police
33 pension fund pursuant to paragraph e of subdivision seven of section
34 fifty-four of the state finance law, and the municipal assistance corpo-
35 ration for the city of New York pursuant to section three thousand thir-
36 ty-six-a of this chapter and subdivision one of section ninety-two-e of
37 the state finance law. In order to insure that the amount of rentals
38 and other payments due and unpaid by a participating municipality are
39 paid, the authority on or within thirty days prior to January twenty-
40 fifth, April twenty-fifth, July twenty-fifth and October twenty-fifth of
41 each year shall certify to the state comptroller the amount of rentals
42 and other payments then due and unpaid by each participating munici-
43 pality pursuant to any lease, sublease or other agreement. The amount
44 required to be deducted by the state comptroller pursuant to this subdi-
45 vision shall be deducted from such aid, whether or not the state aid
46 from which such deduction is to be made is then payable to the partic-
47 ipating municipality, and thereupon paid to the authority. The amount of
48 state aid payable to such participating municipality shall be reduced by
49 the amount deducted by the state comptroller notwithstanding the amount
50 appropriated and apportioned by the state to such participating munici-
51 pality, and the state shall not be obligated to make and the participat-
52 ing municipality shall not be entitled to receive any additional appor-
53 tionment or payment of such state aid. Nothing shall be construed to
54 create an obligation upon the state to appropriate moneys, to preclude
55 the state from reducing the amount of moneys appropriated or level of
S. 8578 177
1 assistance provided, or to preclude the state from altering or modifying
2 the manner in which it provides for or provides assistance.
3 § 7-011. Section 1727 of the public authorities law is amended by
4 adding a new subdivision 9 to read as follows:
5 9. Notwithstanding the provisions of this section or any other
6 provision of law to the contrary, the authority shall continue its
7 corporate existence regardless of the alteration of the composition of
8 the board of education of the city school district of the city of New
9 York caused by the incorporation of the city of Staten Island and the
10 establishment of the city school district of the city of Staten Island.
11 § 8-001. Subdivision 1 of section 23 of the executive law, as amended
12 by chapter 385 of the laws of 2017, is amended to read as follows:
13 1. Each county, except Richmond county and those counties contained
14 within the city of New York, and each city with a population of one
15 million or more, shall prepare a comprehensive emergency management
16 plan. Each city with a population of less than one million, town and
17 village is authorized to prepare a comprehensive emergency management
18 plan. The disaster preparedness commission shall provide assistance and
19 advice for the development of such plans. Each city with a population of
20 less than one million, town and village plan shall be coordinated with
21 the county plan.
22 § 8-002. Subdivision 1 of section 101-b of the executive law, as
23 added by chapter 1214 of the laws of 1971, is amended to read as
24 follows:
25 1. Definitions. As used in this section,
26 a. "Agency" means any state board, bureau, commission, department,
27 division or officer authorized by law to adopt rules.
28 b. "Rule" means the whole or part of each agency statement of general
29 applicability or regulation or code that implements or applies law,
30 including the amendment, suspension or repeal thereof.
31 c. "Municipal corporation" means [a] any county outside the [city]
32 cities of New York and Staten Island, a city, a town, a village or a
33 school district.
34 d. "Governing body" means:
35 (1) In a county, a board of supervisors, county legislature or other
36 body vested by its charter, other law or other valid enactment with
37 jurisdiction to enact local laws;
38 (2) In a city, the board of aldermen, a common council, commission or
39 other body vested by its charter or other law with jurisdiction to enact
40 ordinances or local laws;
41 (3) In a town, the town board;
42 (4) In a village, the board of trustees; and
43 (5) In a school district, the board of education, board of trustees or
44 sole trustee.
45 § 8-003. Intentionally omitted.
46 § 8-004. Subdivisions 1, 2, 3, 4 and 6 of section 246 of the executive
47 law, subdivisions 1, 2 and 3 as amended by section 10 of part D of chap-
48 ter 56 of the laws of 2010, subdivision 4 as amended by section 102 of
49 part WWW of chapter 59 of the laws of 2017, and subdivision 6 as added
50 by chapter 479 of the laws of 1970 and as renumbered by chapter 813 of
51 the laws of 1985, are amended to read as follows:
52 1. The program of state aid to county probation services shall be
53 administered by the division of criminal justice services with the
54 advice of the state probation commission and the director of the office
55 of probation and correctional alternatives. Funds appropriated to the
56 division for distribution as state aid to county probation services
S. 8578 178
1 [and], to the probation services of New York city and to the probation
2 services of the city of Staten Island shall be distributed by the divi-
3 sion in accordance with rules and regulations adopted by the commission-
4 er of the division of criminal justice services after consultation with
5 the state probation commission and the director of the office of
6 probation and correctional alternatives.
7 2. State aid shall be granted to the city of New York, the city of
8 Staten Island and the respective counties outside [the city of New York]
9 such cities for expenditures to be incurred by the county or [city] such
10 cities in maintaining and improving local probation services subject to
11 amounts appropriated for this purpose. State aid grants shall not be
12 used for expenditures for capital additions or improvements, or for debt
13 service costs for capital improvements.
14 State aid shall be granted by the commissioner of the division of
15 criminal justice services after consultation with the state probation
16 commission and the director of the office of probation and correctional
17 alternatives, provided the respective counties or the city of Staten
18 Island or the city of New York conform to standards relating to the
19 administration of probation services as adopted by the commissioner of
20 the division of criminal justice services after consultation with the
21 state probation commission and the director of the office of probation
22 and correctional alternatives.
23 3. Applications from counties or the city of Staten Island or the city
24 of New York for state aid under this section shall be made by filing
25 with the division of criminal justice services, a detailed plan, includ-
26 ing cost estimates covering probation services for the fiscal year or
27 portion thereof for which aid is requested. Included in such estimates
28 shall be clerical costs and maintenance and operation costs as well as
29 salaries of probation personnel and such other pertinent information as
30 the commissioner of the division of criminal justice services may
31 require. Items for which state aid is requested under this section shall
32 be duly designated in the estimates submitted. The commissioner of the
33 division of criminal justice services, after consultation with the state
34 probation commission and the director of the office of probation and
35 correctional alternatives, shall approve such plan if it conforms to
36 standards relating to the administration of probation services as speci-
37 fied in the rules adopted by [him or her] such commissioner.
38 4. An approved plan and compliance with standards relating to the
39 administration of probation services promulgated by the commissioner of
40 the division of criminal justice services shall be a prerequisite to
41 eligibility for state aid.
42 The commissioner of the division of criminal justice services may take
43 into consideration granting additional state aid from an appropriation
44 made for state aid for county probation services for counties or the
45 city of Staten Island or the city of New York when a county or the city
46 of Staten Island or the city of New York demonstrates that additional
47 probation services were dedicated to intensive supervision programs and
48 intensive programs for sex offenders. The commissioner shall grant addi-
49 tional state aid from an appropriation dedicated to juvenile risk inter-
50 vention services coordination by probation departments which shall
51 include, but not be limited to, probation services performed under arti-
52 cle three of the family court act. The administration of such additional
53 grants shall be made according to rules and regulations promulgated by
54 the commissioner of the division of criminal justice services. Each
55 county and the city of Staten Island and the city of New York shall
56 certify the total amount collected pursuant to section two hundred
S. 8578 179
1 fifty-seven-c of this chapter. The commissioner of the division of crim-
2 inal justice services shall thereupon certify to the comptroller for
3 payment by the state out of funds appropriated for that purpose, the
4 amount to which the county or the city of Staten Island or the city of
5 New York shall be entitled under this section. The commissioner shall,
6 subject to an appropriation made available for such purpose, establish
7 and provide funding to probation departments for a continuum of
8 evidence-based intervention services for youth alleged or adjudicated
9 juvenile delinquents pursuant to article three of the family court act
10 or for eligible youth before or sentenced under the youth part in
11 accordance with the criminal procedure law. Such additional state aid
12 shall be made in an amount necessary to pay one hundred percent of the
13 expenditures for evidence-based practices and juvenile risk and
14 evidence-based intervention services provided to youth sixteen years of
15 age or older when such services would not otherwise have been provided
16 absent the provisions of [a] part WWW of chapter fifty-nine of the laws
17 of two thousand seventeen [that increased the age of juvenile jurisdic-
18 tion].
19 6. The director, after consultation with the state probation commis-
20 sion, may authorize or require the comptroller to withhold the payment
21 of state aid to any county, or the city of Staten Island or the city of
22 New York, in the event that such county, or the city of Staten Island or
23 the city of New York, (a) fails to conform to standards of probation
24 administration as formulated by the director pursuant to this section,
25 (b) discontinues or fails to follow an approved plan, or (c) fails to
26 enforce in a satisfactory manner rules promulgated pursuant to this
27 section, or laws now in effect or hereafter adopted which relate in any
28 manner to the administration of probation services.
29 § 8-004-a. The second undesignated paragraph of subdivision 4 of
30 section 246 of the executive law, as amended by section 103 of part WWW
31 of chapter 59 of the laws of 2017, is amended to read as follows:
32 The commissioner of the division of criminal justice services may take
33 into consideration granting additional state aid from an appropriation
34 made for state aid for county probation services for counties or the
35 city of Staten Island or the city of New York when a county or the city
36 of Staten Island or the city of New York demonstrates that additional
37 probation services were dedicated to intensive supervision programs and
38 intensive programs for sex offenders. The commissioner shall grant addi-
39 tional state aid from an appropriation dedicated to juvenile risk inter-
40 vention services coordination by probation departments which shall
41 include, but not be limited to, probation services performed under arti-
42 cle three of the family court act. The administration of such additional
43 grants shall be made according to rules and regulations promulgated by
44 the commissioner of the division of criminal justice services. Each
45 county and the city of Staten Island and the city of New York shall
46 certify the total amount collected pursuant to section two hundred
47 fifty-seven-c of this chapter. The commissioner of the division of crim-
48 inal justice services shall thereupon certify to the comptroller for
49 payment by the state out of funds appropriated for that purpose, the
50 amount to which the county or the city of Staten Island or the city of
51 New York shall be entitled under this section. The commissioner shall,
52 subject to an appropriation made available for such purpose, establish
53 and provide funding to probation departments for a continuum of
54 evidence-based intervention services for youth alleged or adjudicated
55 juvenile delinquents pursuant to article three of the family court act
S. 8578 180
1 or for eligible youth before or sentenced under the youth part in
2 accordance with the criminal procedure law.
3 § 8-005. Subdivision 1 of section 255 of the executive law, as added
4 by chapter 603 of the laws of 1973, is amended to read as follows:
5 1. There is hereby created a department of probation in and for the
6 city of New York to have charge of all probation work in the supreme,
7 family and criminal courts in the counties of Bronx, Kings, New York[,]
8 and Queens [and Richmond].
9 § 8-006. The executive law is amended by adding a new section 255-a to
10 read as follows:
11 § 255-a. Probation in the city of Staten Island. 1. There is hereby
12 created a department of probation in and for the city of Staten Island
13 to have charge of all probation work in the supreme, family and other
14 criminal courts in the county of Richmond.
15 2. The head of such department shall be a director of probation
16 appointed by the mayor of the city of Staten Island to serve during the
17 pleasure of the mayor. The director shall have charge of the adminis-
18 tration of the department and shall be responsible for carrying out the
19 functions of the department including intake, investigation, super-
20 vision, conciliation and pre-disposition social treatment in cases
21 coming to the courts referred to in this section. The director may,
22 from time to time, create, abolish, transfer and consolidate bureaus and
23 other units within the department as such director may determine neces-
24 sary for efficient operation thereof. The director also shall have the
25 power to appoint and remove such deputy directors, assistants, probation
26 officers and other employees as may be needed for the performance of the
27 duties of the department and may prescribe their duties and fix their
28 compensation, within appropriations made available therefor by the city
29 of Staten Island and subject to all applicable civil service laws and
30 rules and regulations. The director may, in such director's discretion,
31 appoint volunteer probation officers, when necessary, provided they have
32 the qualifications required of salaried officers, but no such volunteer
33 probation officer shall receive pay from the public funds for such offi-
34 cer's services. The city of Staten Island shall make the necessary
35 appropriation for the salaries of the director and of all officers and
36 employees of the department as referred to in this subdivision, as well
37 as for the expenses actually and necessarily incurred by such director,
38 officers and employees in the performance of their duties.
39 3. The director shall discharge such director's powers and responsi-
40 bilities in accordance with all laws and rules applicable to probation
41 and with the general rules regulating methods and procedure in the
42 administration of probation as adopted from time to time pursuant to
43 section two hundred forty-three of this chapter. The director may adopt
44 departmental rules, not inconsistent with law or the aforesaid general
45 rules, to regulate the policies, programs, standards, and methods of
46 procedure in relation to probation and the powers and duties of officers
47 and employees as in the director's judgment are deemed proper.
48 4. Notwithstanding any other provision of law or of the Staten Island
49 city charter or administrative code, any duly appointed officer or
50 employee of such probation department may reside in any county within
51 the state.
52 § 8-007. Subdivisions 1 and 4 of section 257-c of the executive law,
53 as added by chapter 55 of the laws of 1992, are amended to read as
54 follows:
55 1. Notwithstanding any other provision of law, every county, the city
56 of Staten Island and the city of New York, may adopt a local law requir-
S. 8578 181
1 ing individuals currently serving or who shall be sentenced to a period
2 of probation upon conviction of any crime under article thirty-one of
3 the vehicle and traffic law to pay to the local probation department
4 with the responsibility of supervising the probationer an administrative
5 fee of thirty dollars per month. The department shall waive all or part
6 of such fee where, because of the indigence of the offender, the payment
7 of said surcharge would work an unreasonable hardship on the person
8 convicted, [his or her] such person's immediate family, or any other
9 person who is dependent on such person for financial support.
10 4. In the event of non-payment of any fees which have not been waived
11 by the local probation department, the county, the city of Staten Island
12 or the city of New York may seek to enforce payment in any manner
13 permitted by law for enforcement of a debt.
14 § 8-008. Subdivision 3 of section 262 of the executive law, as amended
15 by section 28 of part A of chapter 56 of the laws of 2010, is amended to
16 read as follows:
17 3. Upon approval by the board, by a majority of its members, any coun-
18 ty outside the [city] cities of New York and Staten Island acting
19 through its county executive, and upon approval of the local legislative
20 body, may submit a proposed service plan to the office for approval. The
21 city of New York acting through the mayor and upon approval by the board
22 of estimate and the city of Staten Island acting through the mayor and
23 upon approval by the common council may submit a proposed service plan
24 to the office for approval.
25 § 8-009. Subdivisions 1 and 2 of section 266 of the executive law, as
26 added by chapter 338 of the laws of 1989, are amended to read as
27 follows:
28 1. Counties and the [city] cities of New York and Staten Island may
29 submit approved amendments for alcohol and substance abuse programs as
30 defined in this article as part of or in addition to an approved plan.
31 In accordance with this article, nothing in this section shall prohibit
32 the development of regional alcohol and substance abuse programs by two
33 or more counties, the city of Staten Island or cities with a population
34 of one million or more.
35 2. Such approved amendments shall include a statement by the county or
36 the city of New York or the city of Staten Island indicating such
37 municipality's understanding that funding for eligible alcohol and
38 substance abuse programs shall be in accordance with subdivision four of
39 this section and the municipality's commitment to meet the funding
40 requirements as set forth in such subdivision.
41 § 8-010. Section 267 of the executive law, as amended by section 33 of
42 part A of chapter 56 of the laws of 2010, is amended to read as follows:
43 § 267. Office reports. The office shall submit to the governor, the
44 temporary president of the senate, the speaker of the assembly, the
45 [chairman] chairperson of the senate crime and correction committee and
46 the [chairman] chairperson of the assembly committee on codes by October
47 first of each year its evaluation and assessment of this alternatives
48 planning and programming effort by the counties. Such report shall
49 include, but not be limited to, the status of the development of such
50 plans, the approval and implementation of such plans, the success of the
51 programs, in terms of their utilization, effect on jail population,
52 results of the analyses provided counties and the [city] cities of New
53 York and Staten Island on the relationship between alcohol, drugs and
54 crime and the success of the eligible alcohol and substance abuse
55 programs and sentencing decisions together with any recommendations with
56 respect to the proper operation or improvement of planning and implemen-
S. 8578 182
1 tation of effective alternatives to detention and alternatives to incar-
2 ceration programs in counties.
3 § 8-011. Subdivisions 1 and 7 of section 530 of the executive law,
4 subdivision 1 as amended by section 4 of subpart B of part Q of chapter
5 58 of the laws of 2011, subdivision 7 as amended by section 21 of part K
6 of chapter 56 of the laws of 2019, are amended to read as follows:
7 1. Definitions. As used in this section, the term "municipality" shall
8 mean a county, the city of Staten Island or a city having a population
9 of one million or more.
10 7. The agency administering detention for each county and the city of
11 Staten Island and the city of New York shall submit to the office of
12 children and family services, at such times and in such form and manner
13 and containing such information as required by the office of children
14 and family services, an annual report on youth remanded pursuant to
15 article three or seven of the family court act who are detained during
16 each calendar year including, commencing January first, two thousand
17 twelve, the risk level of each detained youth as assessed by a detention
18 risk assessment instrument approved by the office of children and family
19 services provided, however, that the report due January first, two thou-
20 sand twenty-one and thereafter shall not be required to contain any
21 information on youth who are subject to article seven of the family
22 court act. The office may require that such data on detention use be
23 submitted to the office electronically. Such report shall include, but
24 not be limited to, the reason for the court's determination in accord-
25 ance with section 320.5 or seven hundred thirty-nine of the family court
26 act to detain the youth; the offense or offenses with which the youth is
27 charged; and all other reasons why the youth remains detained. The
28 office shall submit a compilation of all the separate reports to the
29 governor and the legislature.
30 § 8-012. Subdivisions 1, 2 and 4 of section 214 of the elder law are
31 amended to read as follows:
32 1. Definitions. As used in this section, the following words shall
33 have the following meanings:
34 (a) "Designated agency" shall mean an agency which is designated by
35 the chief executive officer of the county if there be one, or otherwise
36 the governing board of such county, or the chief executive officer of
37 the city of New York or the mayor of the city of Staten Island, or the
38 governing board of an Indian tribal council; which is either a unit of
39 county government or the city of New York or the city of Staten Island
40 or an Indian tribal organization or a private non-profit agency, and
41 which is the area agency on aging created pursuant to the federal older
42 Americans act of 1965.
43 (b) "Elderly person" shall mean a person sixty years of age or older.
44 (c) "County" shall mean a county, as defined in section three of the
45 county law, except that the city of New York shall be considered one
46 county.
47 (d) "Base year expenditures" and "base year services" shall mean the
48 level of expenditures and services in the year prior to the first year
49 for which a county plan is submitted or in such county's two thousand
50 five fiscal year, whichever is greater.
51 (e) "Community services" shall mean services for elderly persons which
52 are provided by a public or governmental agency or non-profit agency,
53 and which are provided in the home of an elderly person or in community
54 settings such as senior citizens centers, housing projects, or agency
55 offices. Such services shall not include any services provided pursuant
56 to the public health law other than home care services.
S. 8578 183
1 (f) "Community service projects" shall mean community services
2 financed pursuant to paragraph (b) of subdivision four of this section.
3 (g) "County plan" shall mean a plan for community services prepared by
4 a county pursuant to this section.
5 (h) "Non-profit agency" shall mean a corporation organized or existing
6 pursuant to the not-for-profit corporation law.
7 (i) "Program year" shall mean the period from April first through
8 March thirty-first of the following calendar year.
9 (j) "First program year" for a county shall mean the initial year for
10 which the county has received approval for its county plan.
11 2. County plans for improving the availability of community services
12 to the elderly. (a) Counties with a designated agency are required to
13 submit a county plan for a two-, three-, or four-year period determined
14 by the director, with an annual update containing a budget request for
15 the forthcoming program year and such other information as shall be
16 required by the director, for improving the delivery of community
17 services for elderly persons in the format prescribed by the director.
18 The plan for the city of New York or the plan for the city of Staten
19 Island shall specifically address the needs of each county within such
20 city. Such plan shall be a comprehensive description of the manner in
21 which the county intends to address the needs of elderly persons living
22 in the county through improved coordination of existing community
23 services and by the development of any new or expanded community service
24 projects which will improve the delivery of services to the elderly.
25 Such plan shall contain:
26 (1) a statement of goals and objectives for addressing the needs of
27 elderly persons in the county, an assessment of the needs of elderly
28 persons residing in the county, a description of public and private
29 resources that currently provide community services to elderly persons
30 within the county, a description of intended actions to consolidate and
31 coordinate existing community services administered by county govern-
32 ment, a description of the intended actions to coordinate congregate
33 services programs for the elderly operated within the county pursuant to
34 section two hundred seventeen of this title with other community
35 services for the elderly, a description of the means to coordinate other
36 community services for elderly persons in the county with those adminis-
37 tered by county government, and a statement of the priorities for the
38 provision of community services during the program period covered by
39 such plan;
40 (2) an identification of community service projects to be developed to
41 improve the delivery of services, a budget request for approval for the
42 forthcoming year which individually identifies each community service
43 project to be funded pursuant to paragraph (b) of subdivision four of
44 this section, letters of comment from the appropriate local agencies on
45 the relationship and expected impact of the proposed community service
46 projects, assurances that community service projects will provide
47 services to those most in need, an indication of fee schedules by which
48 elderly persons participating in community service projects may contrib-
49 ute to the costs of such projects, and an indication of how the effec-
50 tiveness of such community service projects will be evaluated;
51 (3) an identification of planning, coordination, and administrative
52 activities necessary to achieve the goals and objectives of the plan,
53 together with a budget request for such activities for approval for the
54 forthcoming year to be funded pursuant to paragraph (a) of subdivision
55 four of this section, and assurances by the county that it will comply
56 with the requirements of state and federal law; and
S. 8578 184
1 (4) such other components as may be required pursuant to regulations
2 promulgated by the director.
3 (b) Such county plan for community services or annual update shall be
4 prepared by the designated agency and approved by the chief executive
5 officer of the county, if there be one, or otherwise the governing board
6 of the county, or the chief executive of the city of New York or the
7 mayor of the city of Staten Island and submitted to the director no
8 later than ninety days prior to the beginning of the program period
9 covered by such plan or annual update. Prior to a submission of a coun-
10 ty plan or annual update to the director for approval, the designated
11 agency shall conduct such public hearings as may be required by regu-
12 lations of the director, provided that there shall be at least one such
13 hearing, and one in each county contained within the city of New York or
14 the city of Staten Island.
15 (c) The director shall review such county plan and may approve or
16 disapprove such plan, or any part, program, or project within such plan,
17 and shall propose such modifications and conditions as are deemed appro-
18 priate and necessary. Compliance with paragraphs (a) and (b) of this
19 subdivision shall be the basis for approval of a county plan. The direc-
20 tor shall establish by regulation the dates for notifying the designated
21 agency of approval or disapproval of a county plan. In the event the
22 director shall disapprove the proposed county plan, the county submit-
23 ting such application shall be afforded an opportunity for an adjudica-
24 tory hearing, as prescribed by article three of the state administrative
25 procedure act.
26 (d) Notwithstanding any provision of this section, nothing contained
27 in this section shall give the director or a designated agency any
28 administrative, fiscal, supervisory, or other authority whatsoever over
29 any plans, programs or expenditures authorized pursuant to titles eigh-
30 teen, nineteen and twenty of the federal social security act, or over
31 any unit of state or local government.
32 (e) Counties with a designated agency may submit to the director a
33 letter of intent, in the form and by the date prescribed by the director
34 with the approval of the director of the budget, evidencing the commit-
35 ment of the county to develop a county home care plan for functionally
36 impaired elderly.
37 (f) Within the amounts appropriated therefor, counties submitting an
38 approved letter of intent pursuant to paragraph (e) of this subdivision
39 shall be eligible for reimbursement of one hundred percent of the
40 approved expenditures for preparing a county home care plan for func-
41 tionally impaired elderly. Such a grant-in-aid shall be available to a
42 county only once and shall be limited to one-half the amount available
43 to such county pursuant to subparagraph one of paragraph (a) of subdivi-
44 sion four of this section; provided however that in either of the two
45 years immediately following its first submission of a home care plan for
46 functionally impaired elderly, a county which does not receive state aid
47 during such year for expanded non-medical in-home services, non-institu-
48 tional respite services, case management services, and ancillary
49 services pursuant to paragraph (j) of subdivision four of this section,
50 may apply for reimbursement of one hundred percent of the approved
51 expenditures for revising such home care plan, limited to one-quarter
52 the amount available to such county pursuant to subparagraph one of
53 paragraph (a) of subdivision four of this section.
54 (g) County home care plans for functionally impaired elderly prepared
55 pursuant to this subdivision shall include a comprehensive description
56 of all aspects of home care, non-institutional respite, case management,
S. 8578 185
1 and ancillary services available to elderly persons in the county; a
2 description of intended actions to coordinate such home care, non-insti-
3 tutional respite, case management, and ancillary services to func-
4 tionally impaired elderly persons in their county provided under this
5 section with other services to elderly persons; a proposal for expanded
6 non-medical in-home services, non-institutional respite services, case
7 management services, and ancillary services for functionally impaired
8 elderly persons with unmet needs to support such persons' continued
9 residence in their homes; and such other components as may be required
10 pursuant to regulations promulgated by the director, including how the
11 proposed expanded non-medical in-home services, non-institutional
12 respite services, case management services, and ancillary services will
13 be delivered to unserved or underserved populations.
14 (h) Such county home care plan for functionally impaired elderly shall
15 be prepared by the designated agency after consultation with the social
16 services district and the local public health agency, and shall be
17 approved by the chief executive officer of the county, if there be one,
18 or otherwise the governing board of the county, or the chief executive
19 of the city of New York or the mayor of the city of Staten Island, and
20 submitted to the director for approval by such date as may be specified
21 by regulation. The director shall not approve such county home care plan
22 for functionally impaired elderly unless it complies with the standards
23 and regulations issued pursuant to this section.
24 4. State aid. (a) County plans for improving the availability of
25 community services to the elderly:
26 (1) within the amounts appropriated therefor, counties with an
27 approved county plan shall be eligible for reimbursement of one hundred
28 percent of the annual approved expenditures for the preparation and
29 revision of such county plan, evaluation of projects contained within
30 such county plan, execution of interagency agreements necessary to carry
31 out the plan, actions to consolidate, combine or collocate services
32 within the county, and such other costs of the designated agency neces-
33 sary to implement such county plan, provided that the total annual
34 amount payable to a county pursuant to this subparagraph shall not
35 exceed the sum of one dollar for each elderly person residing in the
36 county, or seventy-five thousand dollars, whichever is less, and further
37 provided that for the city of New York or the city of Staten Island such
38 amount shall not exceed one dollar for each elderly person residing in
39 [the] such city or three hundred seventy-five thousand dollars, whichev-
40 er is less. Notwithstanding the foregoing limitations, counties with a
41 population of less than twenty thousand elderly persons shall be eligi-
42 ble for reimbursement of one hundred percent of such annual approved
43 expenditures provided that the total annual amount of such reimbursement
44 per county shall not exceed twenty thousand dollars.
45 (2) within the amounts appropriated therefor, a county may receive a
46 grant-in-aid of up to twenty-five per centum of the total annual amount
47 that such county is eligible to receive pursuant to subparagraph one of
48 this paragraph for the cost of preparing an initial county plan in
49 accordance with this section. Such a grant-in-aid shall be available to
50 a county only once and shall be in addition to the reimbursement
51 received by the county pursuant to subparagraph one of this paragraph
52 for the first program year. A request for such a grant-in-aid shall be
53 accompanied by a letter of intent in the form prescribed by the director
54 evidencing the commitment of the county to develop a county plan for
55 community services and shall be submitted to the director at least six
56 months prior to the beginning of the first program year.
S. 8578 186
1 (b) Community service projects:
2 (1) within the amounts appropriated therefor, counties having an
3 approved county plan shall be eligible for reimbursement by the state
4 for expenditures for approved community service projects pursuant to
5 this section. Such state reimbursement shall not exceed thirty-three
6 thousand six hundred dollars or four dollars twenty cents for each
7 elderly person residing in the county, whichever is greater. The annual
8 state reimbursement eligibility shall be at a rate of seventy-five
9 percent of the total annual expenditures for such approved programs.
10 (2) the director shall provide by regulation that certain non-county
11 moneys and in-kind equivalents may be used to comprise the county share
12 of such total annual approved expenditures, provided that such county
13 share shall not include cost-sharing received from elderly persons
14 receiving expanded non-medical in-home services, non-institutional
15 respite services, case management services, and ancillary services
16 pursuant to paragraph (k) of this subdivision or moneys received from
17 the federal government for services for the elderly allocated to the
18 states or local governments according to population or other such non-
19 competitive basis.
20 (3) the director shall provide by regulation the requirements for any
21 participant contributions and fee schedules used for community service
22 projects and the manner for the accounting and use of any such revenue.
23 (c) Reimbursement pursuant to this section shall not be available for
24 expenditures for base year services otherwise provided without cost, or
25 to replace base year expenditures made by the county or any other
26 service provider irrespective of the source of funds for such services.
27 (d) Reimbursement shall not be available to community services
28 projects funded pursuant to paragraph (b) of this subdivision or to
29 expanded non-medical in-home services, non-institutional respite
30 services, case management services, and ancillary services funded pursu-
31 ant to paragraph (j) of this subdivision for services provided to elder-
32 ly persons who are eligible for or are receiving services to meet their
33 needs pursuant to titles eighteen, nineteen or twenty of the federal
34 social security act or any other governmental programs or for services
35 provided to residents in adult residential care facilities which had
36 previously been provided by the facility or which are required by law to
37 be provided by such facility.
38 (e) For the purpose of determining the amount of state reimbursement
39 for which a county is eligible pursuant to this section, the last
40 preceding federal census or other census data approved by the comp-
41 troller shall be used. Funds appropriated by the state for the purpose
42 of reimbursement for community services pursuant to this section shall
43 be apportioned among the counties pursuant to the formula set forth in
44 paragraph (b) of this subdivision by the director. Funds appropriated by
45 the state for the purpose of reimbursement for expanded non-medical
46 in-home services, non-institutional respite services, case management
47 services, and ancillary services pursuant to this section shall be
48 apportioned among the counties by the director pursuant to the formula
49 set forth in paragraph (j) of this subdivision.
50 (f) The comptroller may withhold the payment of state aid to any coun-
51 ty in the event that such county alters or discontinues the operations
52 approved by the director pursuant to this section or otherwise fails to
53 comply with the regulations or requirements of the director.
54 (g) Counties shall submit claims for reimbursement after the end of
55 each month or each quarter as required by and in accordance with proce-
56 dures prescribed by the director. Reimbursement shall be available for
S. 8578 187
1 approved expenditures incurred in accordance with an approved county
2 plan for community services.
3 (h) Reimbursement pursuant to subparagraph one of paragraph (b) or
4 paragraph (j) of this subdivision shall not be available for expendi-
5 tures for community or expanded non-medical in-home services, non-insti-
6 tutional respite services, case management services, and ancillary
7 services to elderly persons in the city of New York and in the city of
8 Staten Island unless expenditures for such services are apportioned for
9 services in each of the counties contained within such city in a manner
10 which the director has determined by regulation substantially reflects
11 the proportion that the number of elderly persons in that county bears
12 to the total number of elderly persons in [the] such city as a whole. In
13 determining whether reimbursement shall be available under paragraph (g)
14 of this subdivision, the director shall ensure that expenditures were
15 apportioned in accordance with the provisions of this paragraph.
16 (i) The director, within the amounts appropriated therefor and with
17 the approval of the director of the budget, may authorize a county which
18 has an approved home care plan for functionally impaired elderly to
19 provide expanded non-medical in-home services, non-institutional respite
20 services, case management services, and ancillary services pursuant to
21 such plan. Such services shall be limited to those services necessary to
22 meet otherwise unmet needs and which support such elderly persons'
23 continued residence in their homes. Needs will be determined pursuant to
24 a standardized evaluation of functional impairment, available resources
25 and such other relevant factors specified pursuant to regulations
26 promulgated by the director. No expanded non-medical in-home services,
27 non-institutional respite services, or ancillary services shall be
28 provided to any individual pursuant to this section unless such expanded
29 non-medical in-home services, non-institutional respite services, or
30 ancillary services are accompanied by ongoing case management services
31 in accordance with regulations promulgated by the director.
32 (j) Within the amounts appropriated therefor, counties authorized to
33 provide expanded non-medical in-home services, non-institutional respite
34 services, case management services, and ancillary services pursuant to
35 paragraph (i) of this subdivision shall be eligible for reimbursement by
36 the state of up to seventy-five percent of allowable expenditures for
37 approved services pursuant to this section up to the level authorized by
38 the director. The director shall not authorize a level of state
39 reimbursement pursuant to this paragraph which exceeds the sum of nine-
40 ty-one thousand two hundred fifty dollars or seven dollars thirty cents
41 for each elderly person residing in the county, whichever is greater,
42 and shall proportionately reduce such sum for each county in any years
43 for which appropriations are not sufficient to fully fund approved
44 expanded non-medical in-home services, non-institutional respite
45 services, case management services, and ancillary services for func-
46 tionally impaired elderly in all counties with approved home care plans;
47 provided however that in state fiscal years beginning on or after the
48 first day of April, two thousand five, the director, with the approval
49 of the director of the budget, may authorize state reimbursement in
50 excess of these levels to the extent appropriations are available there-
51 for.
52 (k) The director, with the approval of the director of the budget,
53 shall provide by regulation the extent of cost-sharing to be required of
54 elderly persons receiving expanded non-medical in-home services, non-in-
55 stitutional respite services, case management services, and ancillary
56 services pursuant to this section, which shall reflect such recipients'
S. 8578 188
1 means to pay for such services and which will not affect their ability
2 to remain in their homes; provided however that the director shall not
3 authorize or direct the withholding of state aid pursuant to paragraph
4 (f) of this subdivision prior to the first day of April, two thousand
5 five, based on any county's failure or inability to comply with regu-
6 lations promulgated pursuant to this paragraph. The full amount of cost-
7 sharing actually received by any county from elderly persons receiving
8 expanded non-medical in-home services, non-institutional respite
9 services, case management services, and ancillary services shall be used
10 by such county to expand either such county's program of community
11 services or such county's program of expanded non-medical in-home
12 services, non-institutional respite services, case management services,
13 and ancillary services pursuant to this section.
14 (l) Reimbursement pursuant to paragraph (j) of this subdivision shall
15 not be available for expenditures for base year services otherwise
16 provided without cost, or to replace base year expenditures made by the
17 county or any other service provider irrespective of the source of
18 funds, or to replace community services expenditures pursuant to para-
19 graph (b) of this subdivision.
20 (m) Counties shall submit claims for reimbursement for expanded
21 in-home services, non-institutional respite services, case management
22 services, and ancillary services to functionally impaired elderly as
23 required by and in accordance with procedures prescribed by the direc-
24 tor. Reimbursement shall be available for approved expenditures
25 incurred in accordance with an approved county home care plan for func-
26 tionally impaired elderly to the extent the director has authorized
27 state aid for such services pursuant to paragraph (i) of this subdivi-
28 sion.
29 (n) The director shall provide by regulation that certain non-county
30 moneys and in-kind equivalents may be used in part to compose the county
31 share of total allowable expenditures pursuant to paragraph (j) of this
32 subdivision, provided that such county share shall not include cost-
33 sharing received from elderly persons receiving expanded non-medical
34 in-home services, non-institutional respite services, case management
35 services, and ancillary services pursuant to paragraph (k) of this
36 subdivision or moneys received from the federal government for services
37 for the elderly allocated to the states or local governments according
38 to population or other such non-competitive basis.
39 § 8-013. Subdivision 9 of section 140 of the executive law, as amended
40 by chapter 861 of the laws of 1960, is amended to read as follows:
41 9. The clerks of the counties of New York, Kings, Queens, Richmond
42 and Bronx shall each keep a book or card index file in which shall be
43 registered the signature of the commissioners so filing such certif-
44 icates; and the county clerk of any county in the city with whom such
45 commissioner has filed a certificate of appointment shall, upon demand
46 and upon payment of the sum of fifty cents, authenticate a certificate
47 of acknowledgment or proof of oath taken before such commissioner of
48 deeds, without regard to the county in the city in which such [acknowlg-
49 ment] acknowledgment or proof was taken or oath administered, by
50 subjoining or attaching to the original certificate of acknowledgment or
51 proof or oath a certificate under [his] such clerk's hand and official
52 seal specifying that at the time of taking the acknowledgment or proof
53 or oath the officer taking it was duly authorized to take the same; that
54 the authenticating officer is acquainted with the former's handwriting,
55 or has compared the signature on the certificate of acknowledgment,
56 proof or oath with the autograph signature deposited in [his] such
S. 8578 189
1 clerk's office by such officer, and that [he] they verily believes the
2 signature is genuine.
3 § 8-014. Any person who resides in or maintains an office or other
4 place of business in the city of Staten Island and who resides in the
5 county of Richmond on the date of establishment of the city of Staten
6 Island who holds an appointment as a commissioner of deeds from the
7 preceding municipality shall be deemed to hold the appointment as
8 commissioner of deeds from the common council of the city of Staten
9 Island in accordance with the provisions of section 139 of the executive
10 law. Such person shall continue to hold such office until such person's
11 original appointment expires or is revoked pursuant to law.
12 § 8-015. Section 56 of the social services law, as amended by chapter
13 863 of the laws of 1977, is amended to read as follows:
14 § 56. City social services districts. The city of New York and the
15 city of Staten Island shall have all the powers and duties of a social
16 services district insofar as consistent with the provisions of the
17 special and local laws relating to such [city] cities. The officers
18 thereof charged with the administration of public assistance and care
19 shall have additional powers and duties of a commissioner of social
20 services not inconsistent with the laws relating to said [city] cities.
21 § 8-016. Section 57 of the social services law, as amended by chapter
22 863 of the laws of 1977, is amended to read as follows:
23 § 57. Cities in county social services districts. Each city, other
24 than the city of New York and the city of Staten Island, shall form part
25 of the county social services district of the county in which it is
26 situated and shall not assume any powers and responsibilities for the
27 administration or expense of public assistance and care, in addition to
28 those specified in subdivision two of section sixty-nine, except pursu-
29 ant to the provisions of sections seventy-four and seventy-four-a of
30 this chapter.
31 § 8-017. Section 61 of the social services law is amended by adding a
32 new subdivision 1-a to read as follows:
33 1-a. The city of Staten Island is hereby constituted a city social
34 services district.
35 § 8-018. Subdivision 1 of section 74 of the social services law, as
36 added by chapter 863 of the laws of 1977, is amended to read as follows:
37 1. Each city, other than the city of New York and the city of Staten
38 Island, which is responsible for one or more types of public assistance
39 and care on the date this section becomes effective shall function under
40 section seventy-four-a of this chapter.
41 § 8-019. Section 86-a of the social services law, as amended by chap-
42 ter 655 of the laws of 1978, is amended to read as follows:
43 § 86-a. City public welfare funds. The taxes levied for public
44 assistance and care in a city, or in a city public welfare district,
45 shall be paid to the city treasurer, [or] the commissioner of finance in
46 the city of New York or the comptroller in the city of Staten Island,
47 and disbursed in accordance with the provisions of law relating to such
48 city for the payment of bills and claims, provided such provisions of
49 law are not inconsistent with the provisions of this chapter.
50 § 8-020. Intentionally omitted.
51 § 8-021. Subdivision 2 of section 209 of the social services law, as
52 amended by chapter 71 of the laws of 1983, paragraphs (a), (b), (c),
53 (d), (e) and (f) as amended by section 2 of part R of chapter 56 of the
54 laws of 2025, is amended to read as follows:
55 2. The following amounts shall be the standard of monthly need for
56 determining eligibility for and the amount of additional state payments,
S. 8578 190
1 depending on the type of living arrangement and the geographic area in
2 which the eligible individual or the eligible couple resides:
3 (a) On and after January first, two thousand twenty-five, for an
4 eligible individual living alone, $1,054.00; and for an eligible couple
5 living alone, $1,554.00.
6 (b) On and after January first, two thousand twenty-five, for an
7 eligible individual living with others with or without in-kind income,
8 $990.00; and for an eligible couple living with others with or without
9 in-kind income, $1,496.00.
10 (c) On and after January first, two thousand twenty-five, (i) for an
11 eligible individual receiving family care, $1,233.48 if such individual
12 is receiving such care in the city of New York, the city of Staten
13 Island or the county of Nassau, Suffolk, Westchester or Rockland; and
14 (ii) for an eligible couple receiving family care in the city of New
15 York, the city of Staten Island or the county of Nassau, Suffolk, West-
16 chester or Rockland, two times the amount set forth in subparagraph (i)
17 of this paragraph; or (iii) for an eligible individual receiving such
18 care in any other county in the state, $1,195.48; and (iv) for an eligi-
19 ble couple receiving such care in any other county in the state, two
20 times the amount set forth in subparagraph (iii) of this paragraph.
21 (d) On and after January first, two thousand twenty-five, (i) for an
22 eligible individual receiving residential care, $1,402.00 if such indi-
23 vidual is receiving such care in the city of New York, the city of
24 Staten Island or the county of Nassau, Suffolk, Westchester or Rockland;
25 and (ii) for an eligible couple receiving residential care in the city
26 of New York, the city of Staten Island or the county of Nassau, Suffolk,
27 Westchester or Rockland, two times the amount set forth in subparagraph
28 (i) of this paragraph; or (iii) for an eligible individual receiving
29 such care in any other county in the state, $1,372.00; and (iv) for an
30 eligible couple receiving such care in any other county in the state,
31 two times the amount set forth in subparagraph (iii) of this paragraph.
32 (e) On and after January first, two thousand twenty-five, (i) for an
33 eligible individual receiving enhanced residential care, $1,661.00; and
34 (ii) for an eligible couple receiving enhanced residential care, two
35 times the amount set forth in subparagraph (i) of this paragraph.
36 (f) The amounts set forth in paragraphs (a) through (e) of this subdi-
37 vision shall be increased to reflect any increases in federal supple-
38 mental security income benefits for individuals or couples which become
39 effective on or after January first, two thousand twenty-six but prior
40 to June thirtieth, two thousand twenty-six.
41 § 8-022. Subdivision 1 of section 368-e of the social services law, as
42 amended by section 55 of part B of chapter 58 of the laws of 2009, is
43 amended to read as follows:
44 1. The department of health shall review claims for expenditures made
45 by counties, the city of Staten Island and the city of New York for
46 medical care, services and supplies which are furnished to preschool
47 children with handicapping conditions or such preschool children
48 suspected of having handicapping conditions, as such children are
49 defined in the education law. If approved by the department, payment for
50 such medical care, services and supplies which would otherwise qualify
51 for reimbursement under this title and which are furnished in accordance
52 with this title and the regulations of the department to such children,
53 shall be made in accordance with the department's approved medical
54 assistance fee schedules by payment to such county or [city] cities
55 which furnished the care, services or supplies either directly or by
56 contract. Notwithstanding any provisions of law, rule or regulation to
S. 8578 191
1 the contrary, any clinic or diagnostic and treatment center licensed
2 under article twenty-eight of the public health law, which as determined
3 by the state education department, in conjunction with the department of
4 health, has a less than arms length relationship with the provider
5 approved under section forty-four hundred ten of the education law
6 shall, subject to the approval of the department and based on standards
7 developed by the department, be authorized to directly submit such
8 claims for medical assistance, services or supplies so furnished for any
9 period beginning on or after July first, nineteen hundred ninety-seven.
10 The actual full cost of the individualized education program (IEP)
11 related services incurred by the clinic shall be reported on the New
12 York State Consolidated Fiscal Report in the education law section
13 forty-four hundred ten program cost center in which the student is
14 placed and the associated medical assistance revenue shall be reported
15 in the same manner.
16 § 8-023. Subdivision 13 of section 390 of the social services law, as
17 amended by chapter 160 of the laws of 2003, is amended to read as
18 follows:
19 13. Notwithstanding any other provision of law, this section[, except
20 for paragraph (a-1) of subdivision two-a of this section,] shall not
21 apply to child day care centers in the city of New York or in the city
22 of Staten Island.
23 § 9-001. Subdivision 1 of section 214 of the county law, as amended by
24 chapter 967 of the laws of 1973, is amended to read as follows:
25 1. Concurrent resolutions, election notices and official canvass.
26 The members of the county legislative body, whether such body be denomi-
27 nated board of supervisors, county legislature or otherwise, or, in the
28 [city] cities of New York and Staten Island, of the council of each such
29 city representing respectively each of the two principal political
30 parties into which the people of the state are divided, shall designate
31 annually the newspaper published within the county to publish the
32 concurrent resolutions of the legislature. Such designation shall be in
33 writing and signed by a majority of the members representing each of
34 said political parties. In making such designation, consideration shall
35 be given to the newspapers advocating the principles of such political
36 party, the support of its nominees and the extent of the circulation in
37 the county. However the fact that a newspaper is an independent newspa-
38 per not advocating the principles of any political party shall not
39 disqualify it from consideration. If there be but one newspaper
40 published in the county, such newspaper shall be designated. The desig-
41 nation shall be filed with the clerk of the county legislative body or,
42 in the [city] cities of New York and Staten Island, with the clerk of
43 the council of each such city, who shall not later than January tenth
44 cause notice of the name and address of such newspaper or newspapers to
45 be forwarded to the secretary of state. In like manner the members of
46 the county legislative body or, in the [city] cities of New York and
47 Staten Island, of the council of each such city representing each of the
48 two principal political parties into which the people of the state are
49 divided, shall designate the newspaper published within the county to
50 publish the election notices issued by the secretary of state and the
51 newspaper to publish the official canvass. In the event of a failure so
52 to designate in any year, or if either of such political parties has no
53 representatives among the body or, in the [city] cities of New York and
54 Staten Island, council membership, the last newspaper designated by the
55 members of such party shall be deemed duly designated.
S. 8578 192
1 § 9-002. Section 226-a of the county law, as added by chapter 80 of
2 the laws of 1969, is amended to read as follows:
3 § 226-a. Patriotic observances. The county legislature and/or board
4 of supervisors, as the case may be, of any county or borough outside the
5 city of New York or the city of Staten Island, is hereby authorized to
6 appropriate and set aside each year such sums it may deem proper for the
7 purpose of providing for the due and proper observance of any legal
8 holiday, including Columbus day.
9 § 9-003. Section 361-a of the county law, as amended by chapter 359 of
10 the laws of 1989, is amended to read as follows:
11 § 361-a. Expenses of boards of elections outside New York City and the
12 city of Staten Island; apportionment of. The board of elections in each
13 county, outside of the [city] cities of New York and Staten Island, on
14 or before the fifteenth day of December and not earlier than the first
15 day of October, in each year, shall certify to the clerk of the legisla-
16 tive body of the county, the total amount of the expenses of such board
17 of elections, including salaries for the preceding year, and, if the
18 legislative body of any county shall so direct, shall certify to such
19 clerk the portions of such expenses which under provisions of law are to
20 be borne by any city or cities in said county and the portion thereof
21 which is to be borne by the rest of such county and such clerk shall
22 thereupon notify the proper local official or officials, who, in spread-
23 ing upon the assessment-rolls the taxes to be levied upon the taxable
24 property in the city or any such cities, and in the rest of the county,
25 shall include in the amount so spread the amounts certified by the board
26 of elections to be borne by such city or cities, respectively, and in
27 the amount spread upon the assessment-rolls of the taxable property in
28 the several towns or other political subdivisions of the rest of the
29 county the amount so certified by said board of elections to be borne by
30 such towns or political subdivisions respectively. Whenever any addi-
31 tional expenses either for salaries or supplies in addition to the regu-
32 lar county-wide primary and election expenses are incurred by a board of
33 elections incidental to any election in any city, town or village, such
34 board of elections shall certify to the county legislative body a
35 detailed statement of such expenses and said county legislative body may
36 cause the amount thereof to be levied against such city, town or village
37 or may certify the amount thereof to such city, town or village and such
38 city, town or village shall upon such certification, include the amount
39 so certified in the next budget and tax levy and shall pay the same to
40 the county.
41 § 9-004. Subdivision 2 of section 390 of the county law, as added by
42 chapter 1 of the laws of 1951, is amended to read as follows:
43 2. Whenever a patient admitted to said hospital has local residence,
44 as defined in the public health law, in the county in which the hospital
45 is situated, [he] such patient shall be a charge upon such county. If
46 such patient admitted to said hospital has local residence in some other
47 county or in the city of New York or the city of Staten Island, [he]
48 such patient shall be a charge upon such other county or the city of New
49 York or the city of Staten Island, as the case may be, and the super-
50 intendent shall send a bill for such charge to the clerk of the board of
51 supervisors of such other county or to the comptroller of the city of
52 New York or of the city of Staten Island. Such charge shall be at a
53 rate to be fixed by the board of managers, which shall not exceed the
54 per diem per capita cost of care and treatment in said hospital, and if
55 the county operating said hospital is currently receiving state aid for
56 the care and treatment of tuberculosis patients pursuant to the public
S. 8578 193
1 health law, such charge may be an amount for each day of such patient's
2 care equivalent to the balance of the total per diem per capita cost of
3 operating such hospital during the preceding fiscal year, as computed
4 and approved by the state commissioner of health [pursuant to subdivi-
5 sion three of section fifty-four of the public health law]. Such bill
6 shall be audited and paid by the board of supervisors of said county,
7 except that a bill so submitted to the city of New York or the city of
8 Staten Island shall be paid by such city after audit and upon warrant of
9 the comptroller of such city. Any patient admitted to said hospital may
10 pay for [his] their care and treatment in whole or in part if [he] such
11 patient volunteers to do so.
12 § 9-005. Section 391 of the county law, as added by chapter 1 of the
13 laws of 1951, is amended to read as follows:
14 § 391. Admission of out of county patients. 1. Exclusive of the
15 city of New York and the city of Staten Island, and exclusive of coun-
16 ties served by state tuberculosis hospitals, any person in a county not
17 having a county hospital for the care and treatment of persons suffering
18 from tuberculosis may apply in person to the clerk of the board of
19 supervisors of such county or to the state commissioner of health for
20 admission to a tuberculosis hospital, providing that such person submit
21 with such application a statement signed by a reputable physician that
22 such physician has, within the ten days preceding the date of such
23 application, examined such person and that, in [his] such physician's
24 opinion, such person is suffering from tuberculosis or is suspected of
25 having tuberculosis and is in need of care and treatment therefor. Upon
26 receipt of such application, the clerk of the board of supervisors or
27 the state commissioner of health, as the case may be, shall forward the
28 same to the superintendent of any state, county or city hospital for the
29 care and treatment of tuberculosis.
30 2. Whenever the superintendent of such a hospital shall receive an
31 application for the admission of a patient in accordance with the
32 provisions of subdivision one of this section, if it appear from such
33 application that the person therein referred to is suffering from tuber-
34 culosis or is suspected of having tuberculosis and is in need of care
35 and treatment therefor, the superintendent shall notify said person to
36 appear in person at the hospital, provided there be a vacancy in such
37 hospital and there be no pending application from a patient living in
38 the county in which the hospital is located. If, upon personal examina-
39 tion of the patient, the superintendent is satisfied that such patient
40 is in need of care and treatment for tuberculosis, [he] such superinten-
41 dent shall admit [him] such patient to the hospital. Every patient so
42 admitted shall be a charge against the county in which [he] such patient
43 was living immediately prior to such admission. Such charge shall be at
44 a rate to be fixed by the board of managers, which shall not exceed the
45 per diem per capita cost of maintenance therein and any cost of trans-
46 portation to or from the hospital, except that if the county operating
47 said hospital is currently receiving state aid for the care and treat-
48 ment of tuberculosis patients pursuant to the public health law, such
49 charge shall be an amount for each day of such patient's care equivalent
50 to the balance of the total per diem per capita cost of operating such
51 hospital during the preceding fiscal year, as computed and approved by
52 the state commissioner of health [pursuant to subdivision three of
53 section fifty-four of the public health law]; and the bill therefor
54 shall be audited and paid by the board of supervisors of the said coun-
55 ty. However, if such patient has local residence, as defined in the
56 public health law, in some county other than the one in which [he] such
S. 8578 194
1 patient was living immediately prior to such admission or in the city of
2 New York or the city of Staten Island, [he] such patient shall be a
3 charge upon such other county or the city of New York or the city of
4 Staten Island, as the case may be, and in this event any amounts for the
5 cost of such care and treatment which shall have been paid by the county
6 from which [he] such patient was admitted shall be charged back and
7 reimbursed to such county by the aforesaid other county or the city of
8 New York or the city of Staten Island in which the patient has local
9 residence. Any patient admitted to a hospital in accordance with the
10 provisions of subdivision one of this section may pay for [his] their
11 care and treatment in whole or in part if [he] such patient volunteers
12 to do so.
13 § 9-006. Section 901 of the county law is amended by adding a new
14 subdivision 1-a to read as follows:
15 1-a. The commissioner of corrections of the city of Staten Island
16 shall have custody of the civil jails and persons lawfully committed to
17 such commissioner's custody and such jails shall be kept by them, or by
18 keepers appointed by such commissioner, for whose acts they shall be
19 responsible.
20 § 9-007. Subdivision 1 of section 902 of the county law, as amended by
21 chapter 950 of the laws of 1956, is amended to read as follows:
22 1. The offices of the county clerk in the counties constituting the
23 city of New York and the office of the Richmond county clerk shall
24 remain open for the transaction of business from nine o'clock in the
25 forenoon to four o'clock in the afternoon every day except Saturdays,
26 Sundays and holidays and except in the months of July and August when
27 said offices shall remain open for the transaction of business from nine
28 o'clock in the forenoon to two o'clock in the afternoon except Satur-
29 days, Sundays and holidays.
30 § 9-008. Section 904 of the county law, as amended by chapter 655 of
31 the laws of 1978, is amended to read as follows:
32 § 904. Court and trust fund register and liability of officers. The
33 county clerks of the counties comprising the city of New York and the
34 Richmond county clerk shall perform the same duties and shall be subject
35 to the same penalties imposed by the provisions of this chapter upon
36 other county clerks of the state with relation to court and trust fund
37 registers and the delivery of property or moneys to the commissioner of
38 finance in pursuance of any judgment, decree or order of a court of
39 record of this state.
40 § 9-009. The county law is amended by adding a new section 905-a to
41 read as follows:
42 § 905-a. Liability for loss of court and trust funds in the city of
43 Staten Island. The officer responsible for collection and management of
44 public funds for the city of Staten Island and such officer's surety or
45 sureties shall be liable in the same manner as county treasurers are
46 made liable under the provisions of this chapter for the loss of court
47 and trust funds.
48 § 9-010. The county law is amended by adding a new section 906-a to
49 read as follows:
50 § 906-a. Liability of city of Staten Island for loss of court and
51 trust funds. The city of Staten Island shall be responsible for all
52 property or moneys deposited with the officer responsible for collection
53 and management of public funds for the city of Staten Island by virtue
54 of any judgment, decree or order of a court of record in this state
55 provided, however, that the city shall not be held liable for any loss
56 due to the depreciated value of an investment legal at the time of its
S. 8578 195
1 purchase and which continued to be a legal investment during the period
2 of the trust. An action to recover any loss to or of such fund may be
3 brought against the city by any party aggrieved or by the state comp-
4 troller in a court of competent jurisdiction.
5 § 9-011. The county law is amended by adding a new section 931-a to
6 read as follows:
7 § 931-a. Employees of the district attorney of the county of Rich-
8 mond. The district attorney of Richmond county is vested with the power
9 to appoint any person to any position for which there is now provision
10 by appropriation or which shall hereafter be established. All positions
11 in the district attorney's office of Richmond county for which there is
12 now provision by appropriation shall be continued, except that the mayor
13 of the city of Staten Island may with the consent of the district attor-
14 ney increase or decrease the number of positions and the term, grade,
15 salary and compensation of any position.
16 § 9-012. The county law is amended by adding a new section 944 to read
17 as follows:
18 § 944. Applicability of article to the county of Richmond. For the
19 purposes of continuing the application of this article within the city
20 of Staten Island on and after the date of establishment of the city of
21 Staten Island, the county of Richmond shall be deemed to continue as a
22 county within the city of New York for the purposes of exercising those
23 powers and duties devolved upon said county of Richmond pursuant to this
24 article.
25 § 9-013. Subdivision 2 and paragraphs (a) and (c) of subdivision 3 of
26 section 9-124 of the election law, subdivision 2 as amended by chapter
27 437 of the laws of 2019, paragraphs (a) and (c) of subdivision 3 as
28 amended by chapter 481 of the laws of 2023, are amended to read as
29 follows:
30 2. Each box, envelope, or container containing the ballots and stubs,
31 if any, and all items described in subdivision one of this section shall
32 be deposited by an inspector designated for that purpose with the offi-
33 cer or board from whom or which the board of inspectors received it. In
34 the city of New York and the city of Staten Island, every such box,
35 envelope, or container shall be delivered at the polling place to police
36 or peace officers designated by the police commissioner of such [city]
37 cities, who shall deposit them with the appropriate board of elections.
38 (a) Except in the city of New York or the city of Staten Island, the
39 registration poll records or computer generated registration lists, the
40 returns of canvass with results tapes and tally sheets, if any, annexed,
41 the voted ballots, stubs, opened packages of unused ballots and ballot
42 envelopes, any early mail, absentee, military, special federal, or
43 special presidential ballots which may have been delivered to the poll
44 site during election day, the challenge report records, keys and the
45 package of protested and void ballots shall be filed with the appropri-
46 ate board of elections.
47 (c) In the city of New York and the city of Staten Island, the board
48 of inspectors shall deliver to police or peace officers designated by
49 the police commissioner of such [city] cities, at the polling place the
50 registration poll records or computer generated registration lists,
51 challenge report, records, keys, other election supplies, including two
52 copies of the returns of the canvass and any early mail, absentee, mili-
53 tary, special federal, or special presidential ballots which may have
54 been delivered to the poll site during election day, voted ballots,
55 stubs, open packages of unused ballots and ballot envelopes. Such police
56 or peace officers shall file the returns, the package of void and
S. 8578 196
1 protested ballots, if any, and the early mail, absentee, military,
2 special federal, or special presidential ballots which may have been
3 delivered to the poll site during election day; and emergency ballots,
4 stubs and ballot envelopes, if any, within twenty-four hours after the
5 close of the polls, in the office of the appropriate board of elections
6 or its branch office within the borough, as the case may be.
7 § 9-014. Subdivision 3 of section 9-124 of the election law is amended
8 by adding a new paragraph (d) to read as follows:
9 (d) In the city of Staten Island the board of inspectors, shall deliv-
10 er to the police or peace officer at the polling place the registration
11 poll records or computer generated registration lists, challenge report,
12 records, keys, the flag, other election supplies, the returns of the
13 canvass and the absentee and military, special federal, special presi-
14 dential and emergency ballots, stubs and ballot envelopes. The police
15 or peace officer shall file the returns, the package of void, protested
16 and wholly blank ballots, if any, and the absentee and military, special
17 federal, special presidential and emergency ballots, stubs and ballot
18 envelopes, if any, within twenty-four hours after the close of the
19 polls, in the office of the board of elections.
20 § 9-015. Section 88-b of the state finance law, as added by chapter 13
21 of the laws of 1987, subdivisions 2 and 6 as amended by chapter 65 of
22 the laws of 1988, is amended to read as follows:
23 § 88-b. Suburban transportation fund. 1. There is hereby established
24 in the joint custody of the commissioner of taxation and finance and the
25 comptroller a fund to be known as the "suburban transportation fund".
26 2. The suburban transportation fund shall consist of moneys from the
27 commuter railroad account of the metropolitan transportation authority
28 special assistance fund required to be paid by such authority to the
29 suburban transportation fund pursuant to subdivision three of section
30 twelve hundred seventy-a of the public authorities law and any moneys
31 from the metropolitan transportation authority Dutchess, Orange and
32 Rockland fund transferred pursuant to subdivision four of section twelve
33 hundred seventy-a of the public authorities law.
34 3. Moneys in the suburban transportation fund shall be kept separate
35 from and shall not be commingled with any other moneys in the custody of
36 the commissioner of taxation and finance and the comptroller. All depos-
37 its of such money shall, if required by the comptroller, be secured by
38 obligations of the United States or of the state of market value equal
39 at all times to the amount of the deposit and all banks and trust compa-
40 nies are authorized to give such securities for such deposits.
41 4. Moneys of the fund shall be made available for financing any of the
42 following types of capital projects within the counties comprising the
43 metropolitan commuter transportation district, except those counties
44 comprising the city of New York or the city of Staten Island, but only
45 to the extent that such projects are on an adopted transportation plan
46 and approved by a designated transportation coordinating committee, if
47 one exists, or by the metropolitan planning organization as created
48 pursuant to section fifteen-a of the transportation law if no designated
49 transportation coordinating committee exists: capacity and infrastruc-
50 ture improvements to state, county, town, city, village roads, highways,
51 parkways and bridges; or state, county, town, city or village mass
52 transportation projects; provided, however, that in Nassau and Suffolk
53 counties such moneys shall be available only for capacity improvements
54 to state roads, highways, parkways and bridges. The amount of state
55 funds historically appropriated statewide, other than bond funds, for
56 transportation capital purposes from other sources shall not be reduced
S. 8578 197
1 because of the availability of such moneys made available pursuant to
2 this chapter, nor shall such moneys be used to match federal aid. Prior
3 to the allocation of state advance funds appropriated pursuant to this
4 section, the municipality responsible for the project shall certify to
5 the commissioner of transportation that the amount of funds appropriated
6 for transportation capital purposes by that municipality shall not be
7 reduced because of the availability of such state advance funds, and
8 that such moneys shall not be used to match federal aid.
9 The designated transportation coordinating committee, if one exists,
10 or the metropolitan planning organization if no designated transporta-
11 tion coordinating committee exists, shall notify the municipalities
12 within its jurisdiction of which projects it has approved.
13 5. In the event that any county withdraws from the metropolitan commu-
14 ter transportation district, the withdrawing county shall pay to the
15 state comptroller any amount that is required so that the state is fully
16 reimbursed for funds advanced in anticipation of reimbursement from the
17 suburban transportation fund. In the event that any withdrawing county
18 shall fail to make a payment pursuant to this subdivision, the state
19 comptroller shall withhold and pay to the capital projects fund an
20 amount equal to the amount owed from the next general or specific state
21 aid payment and scheduled to be paid to that county.
22 6. Moneys in the suburban transportation fund transferred pursuant to
23 section twelve hundred seventy-a of the public authorities law shall be
24 made available to the state department of transportation for capital
25 projects in the counties of Nassau, Suffolk, Westchester, Putnam, Dutch-
26 ess, Orange and Rockland on the basis of each county's average pro rata
27 share of the mortgage recording tax receipts raised in such counties
28 pursuant to subdivision one of section two hundred sixty-one of the tax
29 law during the period January first, nineteen hundred eighty-four
30 through December thirty-first, nineteen hundred eighty-six as certified
31 by the metropolitan transportation authority. Moneys transferred to the
32 suburban transportation fund at the request of Dutchess, Orange or Rock-
33 land county pursuant to subdivision three of section twelve hundred
34 seventy-b of the public authorities law shall be used by the state
35 department of transportation to increase the proportionate share of such
36 capital projects in such county. Such projects shall be financed by
37 means of a state advance to be reimbursed by the New York state thruway
38 authority, or its successor agency, through the issuance of its bonds or
39 notes in the manner set forth in subdivision seven of this section, or
40 by means of a state advance to be reimbursed directly from the suburban
41 transportation fund.
42 7. (a) For projects funded by the suburban transportation fund, the
43 state department of transportation may enter into an agreement with the
44 New York state thruway authority, or its successor agency, for the
45 purpose of having the thruway authority, or its successor agency, issue
46 bonds or notes to pay the capital costs of such project. Such agreement
47 shall be subject to approval by the director of the division of the
48 budget.
49 (b) For projects funded pursuant to this subdivision, the affected
50 municipality shall enter into an agreement with the department of trans-
51 portation for the conveyance of all affected real property including
52 highways, roads and bridges to the thruway authority, or its successor
53 agency, for the term of the bonds or notes issued by the thruway author-
54 ity, or its successor agency, for such project or for such lesser period
55 that such bonds or notes are outstanding. During the period of such
56 conveyance to the thruway authority, or its successor agency, the
S. 8578 198
1 department of transportation or the municipality shall agree to maintain
2 the facility in a state of good repair, the responsibility for which
3 shall be with the state, or municipality, which had jurisdiction over
4 said facility prior to such agreement.
5 (c) Upon the final retirement of all bonds and notes issued by the
6 thruway authority, or its successor agency, for such purpose, such prop-
7 erty shall automatically revert to the conveying entity.
8 8. Payments to the thruway authority, or its successor agency, pursu-
9 ant to this section shall be subject to appropriation from the suburban
10 transportation fund. The thruway authority, or its successor agency,
11 shall utilize such moneys to pay the debt service on such bonds or notes
12 and to meet administrative costs in connection therewith.
13 § 9-016. Section 2302 of the surrogate's court procedure act, as
14 amended by chapter 460 of the laws of 1999, is amended to read as
15 follows:
16 § 2302. Award of costs and allowances
17 1. Upon a motion the court may award costs to any party in such
18 amount as it determines not exceeding $20 to each party, except in coun-
19 ties within the City of New York and in the city of Staten Island, where
20 such amount shall not exceed $40.
21 2. Upon rendering a decree or in granting or denying an application
22 to vacate a decree the court may award as costs such sum as it deems
23 reasonable to the petitioner and to any other party who has succeeded in
24 whole or in part in a contest or whose attorney, in the absence of a
25 contest, has rendered services of substantial benefit to him, her or it,
26 or to the estate, not exceeding
27 (a) in counties within the City of New York and in the city of Staten
28 Island:
29 (i) $100 where there has not been a contest, or
30 (ii) $300 where there has been a contest and $300 for each day, less
31 one, necessarily occupied in the trial or hearing and in addition $100
32 for each day necessarily occupied in preparing therefore and $100 addi-
33 tional if a motion for a new trial is granted.
34 (b) in all other counties:
35 (i) $50 where there has not been a contest, or
36 (ii) $150 where there has been a contest and $150 for each day, less
37 one, necessarily occupied in the trial or hearing and in addition $50
38 for each day necessarily occupied in preparing therefore and $50 addi-
39 tional if a motion for a new trial is granted.
40 3. In a contested probate proceeding:
41 (a) Costs payable out of the estate or otherwise may be awarded (1) to
42 an unsuccessful contestant only if [he, she or it] such contestant be a
43 guardian ad litem or guardian, committee or conservator of a person
44 under disability; (2) to an unsuccessful proponent named as executor in
45 the will when propounded by [him, her or it] such proponent in good
46 faith as the last will of the decedent; and (3) to a person named as
47 executor in a prior will on file in the court that is not admitted to
48 probate when such person participates in the proceeding in good faith.
49 Such nominated executor, guardian ad litem, guardian, committee or
50 conservator, whether successful or not may be awarded costs and an
51 allowance in such sum as the court deems reasonable for [his, her or
52 its] their counsel fees and other expenses incurred in the contest or
53 attempt to sustain the will. The court may direct that such costs and
54 allowances in whole or in part be payable by an unsuccessful contestant
55 except that an award of the successful proponent's counsel's fees may
S. 8578 199
1 only be allowed where the court finds that the contest was brought in
2 bad faith or was frivolous.
3 (b) Either before or after the decree granting probate the court may
4 order that a copy of the minutes of the trial be furnished to a contes-
5 tant for the purposes of appeal and charge the expense thereof initially
6 to the estate if satisfied that the contest is in good faith. If the
7 contestant be unsuccessful upon the appeal and [he, she or it] such
8 contestant is not the guardian of an infant, the committee of an incom-
9 petent, the conservator of a conservatee or a guardian ad litem [he, she
10 or it] such contestant shall refund to the estate any amount so paid by
11 the estate for the minutes.
12 4. In a proceeding for probate of a will when the public administra-
13 tor or county treasurer has been directed to probate a will or continue
14 the proceedings for the probate thereof, the court may award to either
15 of them such sum as it deems reasonable for [his, her or its] their
16 counsel fees and other expenses necessarily incurred therein.
17 5. After appeal, pursuant to the direction of the appellate court the
18 court may award a fiduciary such sum as it deems reasonable for counsel
19 fees and other expenses necessarily incurred on the appeal.
20 6. In a proceeding to construe a will or after appeal in such a
21 proceeding, pursuant to the direction of the appellate court the court
22 may award to a fiduciary or any party to the proceeding such sum as it
23 deems reasonable for [his, her or its] their counsel fees and other
24 expenses necessarily incurred in the proceeding or on the appeal.
25 7. Upon a final or intermediate judicial settlement a fiduciary may
26 be awarded for [his, her or its] such fiduciary's expenses and counsel
27 fees such sum as the court deems reasonable not exceeding:
28 (a) within the counties of the City of New York and in the city of
29 Staten Island: $100 for each day necessarily occupied in preparing the
30 account and in drawing, entering and executing the decree. Any sum so
31 awarded may be in addition to any costs, allowances or commissions
32 otherwise authorized and awarded by the court.
33 (b) in all other counties: $ 50 for each day necessarily occupied in
34 preparing the account and in drawing, entering and executing the decree.
35 Any sum so awarded may be in addition to any costs, allowances or
36 commissions otherwise authorized and awarded by the court.
37 8. In a proceeding for disposition of real property a fiduciary may
38 be awarded out of the proceeds of sale [his, her or its] such
39 fiduciary's commissions and such sum as the court deems reasonable for
40 counsel fees and expenses necessarily incurred in the proceeding.
41 § 9-017. The general municipal law is amended by adding a new section
42 929 to read as follows:
43 § 929. City of Staten Island industrial development agency. (a)
44 Legislative intent. It is the policy and intent of the city of Staten
45 Island to promote the economic welfare of its inhabitants and to active-
46 ly promote, attract, encourage and develop economically sound commerce
47 and industry through governmental action for the purpose of preventing
48 unemployment and economic deterioration by the creation of a city of
49 Staten Island industrial development agency. It is recognized that the
50 viability and integrity of the residential communities in the city of
51 Staten Island should be protected and maintained so that no person be
52 deprived of their place of residence by any condemnation for economic or
53 industrial development undertaken pursuant to this article.
54 (b) For the purpose of this section "city" means the city of Staten
55 Island.
S. 8578 200
1 (c) For the benefit of the city and the inhabitants thereof an indus-
2 trial development agency, to be known as the city of Staten Island
3 industrial development agency, is hereby established for the accomplish-
4 ment of any or all of the purposes specified in title one of this arti-
5 cle, except that it shall not have the power to construct or rehabili-
6 tate any residential facility or housing of any nature and kind
7 whatsoever, nor shall it use any of its funds to further the
8 construction or rehabilitation of any residential facility or housing of
9 any nature and kind whatsoever. It shall constitute a body corporate
10 and politic, and be perpetual in duration. It shall only have the
11 powers and duties conferred by title one of this article upon industrial
12 development agencies as of January first, nineteen hundred seventy-three
13 except it shall not have the power of condemnation. In the exercise of
14 the powers conferred upon such agency with respect to the acquisition of
15 real property by this article such agency shall be limited to the
16 geographical jurisdictional limits of the city.
17 (d) It shall be organized in a manner prescribed by and be subject to
18 the provisions of title one of this article, except that its board shall
19 consist of ten members. Among its membership shall be the city comp-
20 troller, the city commissioner of economic development, the corporation
21 counsel of such city and the director of the city planning commission of
22 such city, each of whom shall have the power to designate an alternate
23 to represent them at board meetings with all the rights and powers,
24 including the right to vote, reserved to all board members, provided
25 that such designation be in writing to the chairperson of the board.
26 The remaining six members shall be appointed by the mayor of such city.
27 (e) The mayor shall designate the chairperson of the board, who shall
28 serve at the pleasure of the mayor.
29 (f) The terms of the directors first appointed by the mayor, other
30 than the chairperson of the board shall be as follows:
31 (1) two shall serve for terms of one year each;
32 (2) two shall serve for terms of two years each;
33 (3) two shall serve for terms of three years each, thereafter the
34 successors of all such directors shall serve for terms of three years
35 each. The mayor shall fill any vacancy which may occur by reason of
36 death, resignation, or otherwise in a manner consistent with the
37 original appointment. Members may be removed by the mayor for cause
38 after a hearing upon ten days' written notice. Such members shall
39 receive no compensation for their services but shall be entitled to the
40 necessary expenses, including traveling expenses, incurred in the
41 discharge of their duties.
42 (g) The chief executive officer of the agency shall be appointed by a
43 two-thirds vote of the board of directors.
44 (h) The agency, its members, officers, and employees, shall be
45 subject to article fourteen of the civil service law and for all such
46 purposes the agency shall be deemed the "public employer" and its
47 members, officers and employees shall be deemed "public employees".
48 (i) The city shall have the power to make, or contract to make grants
49 or loans including, but not limited to grants or loans of money, to the
50 agency in such amounts, upon such terms and conditions and for such
51 period or periods of time as in the judgment of the city and the agency
52 are necessary or appropriate for the accomplishment of any of the
53 purposes of the agency.
54 (j) The city shall have the power to condemn property for transfer to
55 the city of Staten Island industrial development agency under title one
56 of this article upon the request of two-thirds of the members of the
S. 8578 201
1 board of directors of the city of Staten Island industrial development
2 agency. No property shall be condemned on behalf of the agency which is
3 zoned "residential" as defined in the zoning resolution of the city, if
4 any, or which is occupied in whole or in part as a dwelling or resi-
5 dence.
6 (k) For the purpose of this section "governing body" as used in title
7 one of this article shall mean the mayor of the city. Except as other-
8 wise provided in this section, the agency, its members, officers and
9 employees, and its operations and activities shall be governed by the
10 provisions of title one of this article.
11 (l) The city shall save harmless and indemnify any person who is
12 serving or has served as a director or officer or as employee of the
13 city of Staten Island industrial development agency against any finan-
14 cial loss arising out of or in connection with any claim, demand, suit
15 or judgment, based on a cause of action involving allegations that pecu-
16 niary harm was sustained by any person as a result of any transaction,
17 act or omission to act of the city of Staten Island industrial develop-
18 ment agency or of any action or inaction or vote of any director, offi-
19 cer or employee of such agency unless such individual is found by a
20 final judicial determination not to have acted in good faith for a
21 purpose such individual reasonably believed to be in the best interests
22 of the agency or not to have had reasonable cause to believe that such
23 conduct was lawful. Provided, however, that such individual must trans-
24 mit to the corporation counsel of the city of Staten Island any notice
25 of claim, summons or complaint or other analogous paper served on such
26 individual within ten days of its receipt unless prevented from doing so
27 by compelling circumstances. The corporation counsel shall, without
28 charge, represent any such individual unless unable to do so by reason
29 of conflict of interest. In the event that the corporation counsel is
30 unable to give such representation, the city of Staten Island shall
31 indemnify the individual for any reasonable litigation expense incurred
32 by such individual.
33 § 10-001. Legislative findings. It is the intention of the legisla-
34 ture that the incorporation of the city of Staten Island shall not alter
35 the existing landlord-tenant relationships within such city and that the
36 state and local laws regulating landlord-tenant relationships such as
37 legal regulated rents, maximum rents and tenancy issues shall continue
38 to provide such regulation until superseded by state law or local law of
39 the city of Staten Island and in accordance with such intent, such laws
40 and regulations are hereby continued. It is further provided that all
41 real property tax exemptions provided under article 4 of the real prop-
42 erty tax law shall be continued as shall all rent regulations and other
43 regulations and duties imposed on the owners of property receiving
44 exemptions pursuant to such article until superseded by state law or
45 local law of the city of Staten Island.
46 § 10-002. Section 1 of chapter 21 of the laws of 1962, constituting
47 the local emergency housing rent control act, is amended by adding a new
48 subdivision 2-a to read as follows:
49 2-a. Applicability. For the purposes of this act, a city which is
50 incorporated on or after the first of January next succeeding the date
51 on which this subdivision shall have become a law and which is comprised
52 of a geographical area with respect to which provisions of this act were
53 in effect on the date immediately prior to such incorporation and which
54 city had been wholly contained within a city with a population of one
55 million or more shall continue to be treated as a city with a population
56 of one million or more.
S. 8578 202
1 § 10-003. Section 4 of section 4 of chapter 576 of the laws of 1974,
2 constituting the emergency tenant protection act of nineteen seventy-
3 four, is amended by adding a new subdivision f to read as follows:
4 f. In the city of Staten Island, the rent guidelines board shall be
5 the rent guidelines board established pursuant to the local law enacted
6 as a successor to the New York city rent stabilization law of nineteen
7 hundred sixty-nine and provided with such powers under such local law.
8 § 10-004. Subdivision b of section 14 of section 4 of chapter 576 of
9 the laws of 1974, constituting the emergency tenant protection act of
10 nineteen seventy-four, is relettered subdivision c and a new subdivision
11 b is added to read as follows:
12 b. in the city of Staten Island; provided that for the purposes of
13 this act, the city of Staten Island shall continue to be treated as a
14 city with a population of one million or more and the reference to any
15 local law applicable to the geographical area of such city prior to its
16 incorporation shall refer to the appropriate successor legislation
17 enacted by the city of Staten Island; and
18 § 10-005. The section heading and subdivision 8 of section 352-eeee of
19 the general business law, as amended by section 1 of part N of chapter
20 36 of the laws of 2019, are amended to read as follows:
21 Conversions to cooperative or condominium ownership in the city of New
22 York or in the city of Staten Island.
23 8. The provisions of this section shall only be applicable in the city
24 of New York and the city of Staten Island.
25 § 10-006. Section 467-b of the real property tax law is amended by
26 adding a new subdivision 14 to read as follows:
27 14. For the purposes of this section, the city of Staten Island shall
28 continue to be treated as a city with a population of one million or
29 more and any reference to a local law enacted pursuant to the local
30 emergency housing rent control act shall also refer to the successor
31 local law enacted by the city of Staten Island.
32 § 10-007. The real property tax law is amended by adding a new section
33 498 to read as follows:
34 § 498. City of Staten Island. For the purposes of this article, the
35 city of Staten Island shall continue to be treated as a city with a
36 population of one million or more and the reference to any local law
37 applicable to the geographical area of such city prior to its incorpo-
38 ration shall be deemed to refer to the appropriate successor legislation
39 enacted by the city of Staten Island.
40 § 10-008. Applicability. It is the intention of the legislature that
41 the state and local laws regulating landlord-tenant relationships such
42 as legal regulated rents, maximum rents and tenancy issues shall contin-
43 ue to provide such regulation; provided, however, that within one
44 hundred twenty days after the date of establishment of the city of
45 Staten Island, the common council of such city must make a determination
46 of whether or not a public emergency exists requiring the continuation
47 of such regulations.
48 § 11-001. Legislative findings. The legislature recognizes that the
49 formation of the city of Staten Island was not contemplated in the
50 establishment of the constitutional real property tax limitations. To
51 the greatest extent practicable, the establishment of the city of Staten
52 Island is formulated to preserve existing local laws, regulations and
53 instrumentalities of government to preserve the status quo and prevent a
54 disruption of government injurious to the public good.
55 The unique factor which determined the establishment of the constitu-
56 tional real property tax limits for the city of New York was the inclu-
S. 8578 203
1 sion of counties wholly within the city with the city assuming the
2 responsibilities and expenditures for functions normally exercised by
3 the counties in areas outside the city of New York. Staten Island will
4 now share this unique factor with New York city, as the county of Rich-
5 mond is wholly contained within the city of Staten Island.
6 Real property located in cities outside the city of New York is
7 subject to a real property tax limit of four percent, of which two
8 percent is city tax and two percent is county tax. Real property located
9 within New York city is subject to a more restrictive real property tax
10 limit of two and one-half percent, all of which is city tax. County real
11 property tax is not permitted within the city of New York.
12 The people of the city of Staten Island and county of Richmond and the
13 New York state legislature have adopted a charter for the city of Staten
14 Island which continues the New York city form of government placing
15 governmental responsibility on the city rather than the county. The
16 county of Richmond has not assumed new responsibilities justifying an
17 interpretation of the constitutional real property tax limits which
18 would permit the county of Richmond to impose a real property tax. Like-
19 wise the maintenance of the New York city form of government with the
20 usual county responsibilities being a function of city government when
21 combined with the prohibition of a county real property tax, requires an
22 interpretation providing a city real property tax limit of two and one-
23 half percent for the city of Staten Island.
24 Therefore the legislature finds and declares that the existing more
25 restrictive real property tax limits for real property located within
26 the county of Richmond remain in effect, providing a city real property
27 tax limit of two and one-half percent for the city of Staten Island and
28 prohibiting the imposition of a real property tax by the county of Rich-
29 mond.
30 § 12-001. Subdivision (a) of section 1107 of the tax law, as amended
31 by section 1 of part C of chapter 407 of the laws of 1999, is amended to
32 read as follows:
33 (a) General. On the first day of the first month following the month
34 in which a municipal assistance corporation is created under article ten
35 of the public authorities law for a city of one million or more, in
36 addition to the taxes imposed by sections eleven hundred five and eleven
37 hundred ten, there is hereby imposed on such date, within the territo-
38 rial limits of such city (including, in the case of the municipal
39 assistance corporation for the city of New York, the city of Staten
40 Island), and there shall be paid, additional taxes, at the rate of four
41 percent, which except as provided in subdivision (b) of this section,
42 shall be identical to the taxes imposed by sections eleven hundred five
43 and eleven hundred ten. Such sections and the other sections of this
44 article, including the definition and exemption provisions, shall apply
45 for purposes of the taxes imposed by this section in the same manner and
46 with the same force and effect as if the language of those sections had
47 been incorporated in full into this section and had expressly referred
48 to the taxes imposed by this section.
49 § 12-002. Subdivision (c) of section 1107 of the tax law, as amended
50 by chapter 588 of the laws of 2000, is amended to read as follows:
51 (c) Tax on sale of service of parking, garaging or storing of motor
52 vehicles. On the first day of the first month following the month in
53 which a municipal assistance corporation is created under article ten of
54 the public authorities law for a city of one million or more, in addi-
55 tion to the taxes imposed by sections eleven hundred five, eleven
56 hundred ten and subdivision (a) of this section, there is hereby imposed
S. 8578 204
1 on such date, within the territorial limits of such city (including, in
2 the case of the municipal assistance corporation for the city of New
3 York, the city of Staten Island), and there shall be paid, additional
4 taxes at the rate of six percent on receipts from every sale of the
5 service of providing parking, garaging or storing for motor vehicles by
6 persons operating a garage (other than a garage which is part of prem-
7 ises occupied solely as a private one or two family dwelling), parking
8 lot or other place of business engaged in providing parking, garaging or
9 storing of motor vehicles provided, however, that this subdivision shall
10 not apply to such facilities owned and operated by such city or an agen-
11 cy or instrumentality of such city or a public corporation the majority
12 of whose members are appointed by the chief executive officer of such
13 city or the legislative body of such city or both of them; provided,
14 however, that receipts for such services paid to a homeowner's associ-
15 ation by its members or receipts paid by members of a homeowner's asso-
16 ciation to a person leasing the parking facility from the homeowner's
17 association shall not be subject to the tax imposed by this subdivision.
18 For purposes of this subdivision, a homeowner's association is an asso-
19 ciation (including a cooperative housing or apartment corporation) (i)
20 the membership of which is comprised exclusively of owners or residents
21 of residential dwelling units, including owners of units in a condomin-
22 ium, and including shareholders in a cooperative housing or apartment
23 corporation, where such units are located in a defined geographical area
24 such as a housing development or subdivision; and (ii) which owns or
25 operates a garage, parking lot or other place of business engaged in
26 providing parking, garaging or storing for motor vehicles located in
27 such area for use (whether or not exclusive) by such owners or resi-
28 dents. All provisions set forth in this article applicable to the taxes
29 imposed under section eleven hundred five, including the definition and
30 exemption provisions of this article, shall apply with respect to a tax
31 imposed under this subdivision, except as to rate and except as other-
32 wise provided herein. The transitional provisions contained in section
33 eleven hundred six shall not apply to the taxes imposed by this section.
34 § 12-003. Intentionally omitted.
35 § 12-004. Section 1210 of the tax law is amended by adding two new
36 subdivisions (k) and (l) to read as follows:
37 (k) In the case of the municipal assistance corporation for the city
38 of New York the power of the city of Staten Island to adopt and amend
39 local laws, ordinances or resolutions imposing taxes pursuant to the
40 authority of such section shall, notwithstanding any provisions of arti-
41 cle twenty-nine of this chapter to the contrary, be suspended until all
42 the notes and bonds of such municipal assistance corporation shall have
43 been fully paid and discharged together with interest on unpaid install-
44 ments of interest.
45 (l) Notwithstanding the provisions of subdivision (k) of this section,
46 the city of Staten Island is hereby authorized and empowered to adopt
47 and amend local laws, imposing taxes, at a rate not to exceed two
48 percent on the receipts of sales from the services of laundering, dry-
49 cleaning, tailoring, weaving, pressing, shoe repairing and shoe shining,
50 and charges to a patron for admission to, or use of, facilities for
51 sporting activities in which the patron is to be a participant such as
52 bowling alleys and swimming pools. Such taxes shall be administered,
53 collected and distributed by the state tax commission as provided in
54 subpart B of part three and in part four of this article.
55 § 12-005. Subdivisions 3 and 4 of section 92-d of the state finance
56 law, subdivision 3 as amended by section 4 of part A of chapter 88 of
S. 8578 205
1 the laws of 2000 and subdivision 4 as amended by section 11 of part SS1
2 of chapter 57 of the laws of 2008, are amended to read as follows:
3 3. The taxes, interest and penalties imposed, pursuant to sections
4 eleven hundred seven or eleven hundred eight (as the case may be) of the
5 tax law within the territorial limits of a city in aid of which a munic-
6 ipal assistance corporation has been created (including, in the case of
7 the municipal assistance corporation for the city of New York, the city
8 of Staten Island), and received by the commissioner of taxation and
9 finance, after deducting the amount which the commissioner of taxation
10 and finance shall determine to be necessary for reasonable costs of the
11 commissioner of taxation and finance in administering, collecting and
12 distributing such taxes, shall be appropriated (i) to the municipal
13 assistance corporation which has been created in aid of such city in
14 order to enable such corporation to fulfill the terms of any agreements
15 made with the holders of its notes and bonds and to carry out its corpo-
16 rate purposes, including the maintenance of the capital reserve fund,
17 and (ii) the balance, if any, to the city in aid of which such corpo-
18 ration has been created, or to a public benefit corporation to which the
19 tax may be otherwise payable pursuant to law, as hereinafter provided.
20 Notwithstanding the provisions of this subdivision, in the case of the
21 municipal assistance corporation for the city of New York, such balance,
22 if any, shall be divided between the city of New York and the city of
23 Staten Island and paid, as hereinafter provided.
24 4. On or before the twelfth day of each month, the commissioner of
25 taxation and finance shall certify to the comptroller the amount of all
26 revenues so received during the prior month as a result of the taxes,
27 interest and penalties so imposed and in addition on or before the last
28 day of June the commissioner shall certify the amount of such revenues
29 received during and including the first twenty-five days of June. In
30 the case of the municipal assistance corporation for the city of New
31 York, the commissioner of taxation and finance shall certify separately
32 the amounts of such revenues received from within the territorial limits
33 of the city of New York and the territorial limits of the city of Staten
34 Island. The amount of revenues so certified shall be deposited by the
35 comptroller in the municipal assistance tax fund and the amount attrib-
36 utable to the taxes, interest and penalties imposed within the territo-
37 rial limits of a city in aid of which a municipal assistance corporation
38 has been created including, in the case of the municipal assistance
39 corporation for the city of New York, the city of Staten Island shall be
40 credited to a special account established in such fund for such corpo-
41 ration. Notwithstanding the foregoing provisions, the commissioner of
42 taxation and finance may prorate revenue attributable to the first or
43 last quarterly return period during which the taxes imposed by section
44 eleven hundred seven or eleven hundred eight (as the case may be) of the
45 tax law apply so as to separate from the revenue collected for that
46 quarter pursuant to such taxes the revenue collected pursuant to local
47 legislation adopted by a city pursuant to section twelve hundred ten or
48 twelve hundred twelve-A of the tax law. Such a proration by the commis-
49 sioner of taxation and finance shall be made on the basis of the ratio
50 of the number of months during which such taxes were imposed during such
51 quarterly return period to the total number of months in such quarterly
52 return period when such proration is reasonably necessary to ascertain
53 the amount of such money which must be deposited by the comptroller in
54 such special account and the amount of such money which must be deposit-
55 ed pursuant to section twelve hundred sixty-one of the tax law. The
S. 8578 206
1 commissioner of taxation and finance shall not be held liable for any
2 inaccuracy in any certification under this subdivision.
3 § 12-006. Subdivision 6 of section 92-d of the state finance law, as
4 amended by section 4 of part A of chapter 88 of the laws of 2000, is
5 amended to read as follows:
6 6. Upon receipt by the comptroller of a certificate or certificates
7 from the [chairman] chairperson of a municipal assistance corporation
8 that such corporation requires a payment or payments in order to comply
9 with any agreement with the holders of its notes and bonds and to carry
10 out its corporate purposes, including the maintenance of the capital
11 reserve fund, from the special account established for such corporation,
12 each of which certificates shall specify the required payment or
13 payments and the date when the payment or payments is required, the
14 comptroller shall pay from such special account on or before the speci-
15 fied date or within thirty days after such receipt, whichever is later,
16 to such corporation, as the [chairman] chairperson thereof may direct in
17 any such certificate, the amount or amounts so certified. In the case
18 of the municipal assistance corporation for the city of New York, each
19 amount so paid shall be comprised of revenues attributable to receipts
20 from both the city of New York and the city of Staten Island in the same
21 proportion that such revenues were received during the period covered by
22 each such certification. The [chairman] chairperson of such corporation
23 shall furnish the commissioner of taxation and finance with copies of
24 such certificates. The comptroller shall from time to time, but in no
25 event later than the fifteenth day of October, January and April and the
26 last day of June of each fiscal year, pay over and distribute to the
27 chief fiscal officer of the city in aid of which such municipal assist-
28 ance corporation has been created to be paid into the treasury of such
29 city to the credit of the general fund, or pay over and distribute to a
30 public benefit corporation to which the tax may otherwise be payable
31 pursuant to law, all revenues in the special account established for
32 such corporation in the municipal assistance tax fund, if any, in excess
33 of the aggregate amount which the [chairman] chairperson of such corpo-
34 ration has certified to the comptroller and which has been previously
35 appropriated and paid to such corporation as hereinabove authorized.
36 Notwithstanding the provisions of this subdivision, in the case of the
37 municipal assistance corporation for the city of New York, the comp-
38 troller shall from time to time, but in no event later than the
39 fifteenth of October, January, and April and the last day of June of
40 each fiscal year, (a) apportion between the city of New York and the
41 city of Staten Island the revenues, if any, in the special account
42 established for such corporation in the municipal assistance tax fund on
43 the basis of the locus of their receipt and (b) pay over and distribute
44 to the chief fiscal officers of such cities to pay into their respective
45 treasuries to the credit of the general fund all such respective reven-
46 ues in excess of the aggregate amount which the chairperson of such
47 corporation has certified to the comptroller and which has been previ-
48 ously appropriated and paid to such corporation as hereinabove author-
49 ized. In no event shall the comptroller pay over and distribute any
50 revenues (other than the amount to be deducted for administering,
51 collecting and distributing such sales and compensating use taxes) to
52 any person other than the municipal assistance corporation unless and
53 until the aggregate of all payments certified to the comptroller as
54 required by such corporation as of such date in order to comply with its
55 agreements with the holders of its notes and bonds and to carry out its
56 corporate purposes, including the maintenance of the capital reserve
S. 8578 207
1 fund, which remain unappropriated or unpaid to such corporation shall
2 have been appropriated to such corporation and shall have been paid in
3 full; provided, however, that no person, including such corporation or
4 the holders of its notes or bonds shall have any lien on such revenues
5 and such agreement shall be executory only to the extent of such reven-
6 ues available to the state in such special account. On the day on which
7 the comptroller pays over and distributes to the chief fiscal officer of
8 such city or cities any revenues from such special account the commis-
9 sioner of taxation and finance shall certify to the comptroller the
10 amount to be deducted for administering, collecting and distributing the
11 tax imposed pursuant to section eleven hundred seven or eleven hundred
12 eight (as the case may be) of the tax law within the territorial limits
13 of such city or cities since [he] such commissioner last certified such
14 amount and the comptroller shall pay such amount into the general fund
15 of the state treasury to the credit of the state purposes fund therein.
16 § 12-007. Subdivision 3 of section 92-e of the state finance law, as
17 amended by chapter 187 of the laws of 1995, is amended to read as
18 follows:
19 3. Such amounts, including per capita aid apportioned to a city in aid
20 of which a municipal assistance corporation has been created (including,
21 in the case of the municipal assistance corporation for the city of New
22 York, the city of Staten Island), shall be deposited by the comptroller
23 to the credit of the special account established for the municipal
24 assistance corporation which has been created in aid of such city in
25 order to enable such corporation to fulfill the terms of any agreements
26 made with the holders of its notes and bonds and to carry out its corpo-
27 rate purposes, including the maintenance of the capital reserve fund
28 securing such bonds and notes, and, subject to the provisions of section
29 fifty-four of this chapter, and subdivisions five and five-a of this
30 section, the balance, if any, shall be paid to the chief fiscal officer
31 of the city in aid of which such corporation has been created as herein-
32 after provided. Notwithstanding the provisions of this subdivision, in
33 the case of the municipal assistance corporation for the city of New
34 York, such balance, if any, shall be divided between the city of New
35 York and the city of Staten Island and paid, as hereinafter provided.
36 § 12-008. Subdivision 5 of section 92-e of the state finance law, as
37 amended by chapter 55 of the laws of 1992, is amended to read as
38 follows:
39 5. Upon receipt by the comptroller of a certificate or certificates
40 from the [chairman] chairperson of a municipal assistance corporation
41 that such corporation requires a payment or payments in order to comply
42 with any agreement with the holders of its notes and bonds and to carry
43 out its corporate purposes, including the maintenance of the capital
44 reserve fund securing such bonds, from the appropriate special account
45 established for such corporation, each of which certificates shall spec-
46 ify the required payment or payments and the date when the payment or
47 payments is required, the comptroller shall pay from such special
48 account on or before the specified date or within thirty days after
49 receipt of such certificate or certificates, whichever is later, to such
50 corporation, as the [chairman] chairperson thereof may direct in any
51 such certificate, the amount or amounts so certified. In the case of
52 the municipal assistance corporation for the city of New York, each
53 amount so paid shall be comprised of per capita aid apportioned to the
54 city of New York and the city of Staten Island in the same proportion
55 that such amounts were so apportioned during the period covered by each
56 such certification. The comptroller shall from time to time, but in no
S. 8578 208
1 event later than the fifteenth day of October, January and April and the
2 last day of June of each fiscal year, pay over and distribute to the
3 chief fiscal officer of the city in aid of which such municipal assist-
4 ance corporation has been created to be paid into the treasury of such
5 city to the credit of the general fund all revenues in the special
6 account established for such corporation in the municipal assistance
7 state aid fund, if any, in excess of (i) the aggregate amount which the
8 [chairman] chairperson of such corporation has certified to the comp-
9 troller and which has been previously paid to such corporation as herein
10 above authorized, and (ii) amounts to be refunded to the general fund of
11 the state of New York pursuant to subdivision five-a of this section.
12 Notwithstanding the provisions of this subdivision, in the case of the
13 municipal assistance corporation for the city of New York, the comp-
14 troller shall from time to time, but in no event later than the
15 fifteenth of October, January and April and the last day of June of each
16 fiscal year, (a) apportion between the city of New York and the city of
17 Staten Island the revenues, if any, in the special account established
18 for such corporation in the municipal assistance state aid fund on the
19 basis of the amounts apportioned to each such city pursuant to section
20 fifty-four of this chapter and (b) pay over and distribute to the chief
21 fiscal officers of such cities to be paid into their respective treas-
22 uries to the credit of the general fund all such respective revenues in
23 excess of the aggregate amount which the chairperson of such corporation
24 has certified to the comptroller and which has been previously paid to
25 such corporation as hereinabove authorized. In no event shall the comp-
26 troller pay over and distribute any revenues to any person other than
27 the municipal assistance corporation unless and until the aggregate of
28 all payments certified to the comptroller as required by such corpo-
29 ration as of such date in order to comply with its agreements with the
30 holders of its notes and bonds and to carry out its corporate purposes,
31 including the maintenance of the capital reserve fund securing such
32 bonds, which remain unpaid to such corporation shall have been paid in
33 full to such corporation; provided, however, that no person, including
34 such corporation or the holders of its notes or bonds shall have any
35 lien on such revenues and such agreement shall be executory only to the
36 extent of such revenues available to the state in such special account.
37 § 12-009. Paragraph c of subdivision 6 of section 54 of the state
38 finance law, as added by chapter 430 of the laws of 1997, is amended to
39 read as follows:
40 c. Upon such certification of the amounts payable to counties, cities,
41 villages and towns for town-wide and town outside village purposes, such
42 per capita aid shall be apportioned and paid to the chief fiscal officer
43 of each such locality pursuant to this section on audit and warrant of
44 the state comptroller out of moneys appropriated by the legislature for
45 such purpose to the credit of the local assistance account in the gener-
46 al fund of the state treasury; provided however that upon such certif-
47 ication of amounts payable to the city of New York or, the city of
48 Staten Island, if applicable, such per capita aid shall be apportioned
49 and paid as follows: (i) any amounts required to be paid to the city
50 university construction fund pursuant to the city university
51 construction fund act, (ii) any amounts required to be paid to the New
52 York city housing development corporation pursuant to the New York city
53 housing development corporation act, (iii) any amounts required to be
54 paid by the city to the New York city transit authority pursuant to the
55 provisions of chapter seven of the laws of nineteen hundred seventy-two,
56 (iv) any amounts required to be paid by the city to the state to repay
S. 8578 209
1 an advance made in nineteen hundred seventy-four to subsidize the fare
2 of the New York city transit authority, (v) five hundred thousand
3 dollars to the chief fiscal officer of the city of New York for payment
4 to the trustees of the police pension fund of such city pursuant to the
5 provisions of paragraph e of this subdivision, (vi) eighty million
6 dollars to the special account for the municipal assistance corporation
7 for the city of New York in the municipal assistance tax fund created
8 pursuant to section ninety-two-d of this chapter to the extent that such
9 amount has been included by the municipal assistance corporation for the
10 city of New York in any computation for the issuance of bonds on a pari-
11 ty with outstanding bonds pursuant to a contract with the holders of
12 such bonds prior to the issuance of any other bonds secured by payments
13 from the municipal assistance state aid fund created pursuant to section
14 ninety-two-e of this chapter, (vii) the balance to the special account
15 for the municipal assistance corporation for the city of New York in the
16 municipal assistance state aid fund created pursuant to section ninety-
17 two-e of this chapter, and (viii) any amounts to be refunded to the
18 general fund of the state of New York pursuant to the annual appropri-
19 ation enacted for the municipal assistance state aid fund. Notwithstand-
20 ing any existing law, no payments of per capita aid payable to the city
21 of New York shall be paid to the state of New York municipal bond bank
22 agency, the New York state sports authority or the transit construction
23 fund so long as amounts of such aid are required to be paid into the
24 municipal assistance state aid fund, and thereafter, after payment of
25 the amounts described in subparagraphs (i) through (viii) of this para-
26 graph the balance shall be paid (A) to the state in repayment of the
27 appropriation of two hundred fifty million dollars made to the city
28 pursuant to chapter two hundred fifty-seven of the laws of nineteen
29 hundred seventy-five providing emergency financial assistance to the
30 city of New York at the extraordinary session held in such year, as
31 amended, (B) to the state of New York municipal bond bank agency to the
32 extent provided by section twenty-four hundred thirty-six of the public
33 authorities law, (C) to the New York state sports authority to the
34 extent provided by section twenty-four hundred sixty-three of the public
35 authorities law, (D) to the transit construction fund to the extent
36 provided by section twelve hundred twenty-five-i of the public authori-
37 ties law, and thereafter (E) to the city of New York.
38 § 12-010. Subparagraphs 1 and 2 of paragraph d of subdivision 6 of
39 section 54 of the state finance law, as added by chapter 430 of the laws
40 of 1997, are amended to read as follows:
41 (1) to the city of New York and the city of Staten Island, on the
42 twenty-fifth days of April, June, October and February;
43 (2) to every county, city, village or town, other than the city of
44 New York and the city of Staten Island, whose fiscal year commences on
45 the first day of June or July, on the twenty-fifth days of April, May,
46 September and December;
47 § 12-011. Subdivisions 1 and 2 of section 3034 of the public authori-
48 ties law, as added by chapter 169 of the laws of 1975, are amended to
49 read as follows:
50 1. The corporation shall be administered by a board of directors,
51 consisting of nine directors, none of whom shall be officers or employ-
52 ees of the federal government or of the state or political subdivisions
53 thereof. All of the directors shall be appointed by the governor with
54 the advice and consent of the senate, provided that four of such direc-
55 tors shall be appointed upon written recommendation of the mayor. Of
56 the directors initially appointed upon the written recommendation of the
S. 8578 210
1 mayor, one shall serve for a term ending December thirty-first, nineteen
2 hundred seventy-six; one shall serve for a term ending December thirty-
3 first, nineteen hundred seventy-seven; one shall serve for a term ending
4 December thirty-first, nineteen hundred seventy-eight; and one shall
5 serve for a term ending December thirty-first, nineteen hundred seven-
6 ty-nine. The provisions of this subdivision notwithstanding, of the
7 directors appointed upon the recommendation of the mayor, the director
8 whose term expires on the December thirty-first next preceding the
9 establishment of a city of Staten Island, and any successor thereto,
10 shall be appointed only upon the written recommendation of the mayor of
11 the city of Staten Island. Of the remaining directors initially
12 appointed by the governor, one shall serve for a term ending December
13 thirty-first, nineteen hundred seventy-six; one shall serve for a term
14 ending December thirty-first, nineteen hundred seventy-seven; one shall
15 serve for a term ending December thirty-first, nineteen hundred seven-
16 ty-eight; and two shall serve for a term ending December thirty-first,
17 nineteen hundred seventy-nine. Each director shall hold office until
18 [his] such director's successor has been appointed and qualified. There-
19 after each director appointed by the governor shall serve a term of four
20 years, except that any director appointed to fill a vacancy shall serve
21 only until the expiration of [his] their predecessor's term.
22 2. The speaker and the minority leader of the assembly, the president
23 pro-tem and the minority leader of the senate, the city board of esti-
24 mate acting by majority vote, [and] the [vice-chairman] vice-chairperson
25 of the city council, the comptroller of the city of Staten Island and
26 the common council of the city of Staten Island shall each be entitled
27 to appoint a representative to the board of directors. Each such
28 representative shall be entitled to receive notice of and to attend all
29 meetings of the board of directors but shall not be entitled to vote.
30 No representative shall be an employee or officer of the federal, state
31 or city governments. Each representative shall serve at the pleasure of
32 the appointing official or body, shall be eligible for reappointment,
33 and shall hold office until [his] such representative's successor has
34 been appointed.
35 § 12-012. Subdivision 1 of section 3036 of the public authorities law,
36 as amended by chapter 201 of the laws of 1978, is amended to read as
37 follows:
38 1. Not less than one hundred twenty days before the beginning of each
39 fiscal year of the corporation (but not later than July 1, 1975 for the
40 fiscal year ending June 30, 1976), the [chairman] chairperson of the
41 board of directors of the corporation shall certify to the state comp-
42 troller and to the mayor a schedule setting forth the cash requirements
43 of the corporation for such fiscal year and the time or times when such
44 cash is required. The total amount so certified by such [chairman]
45 chairperson for such fiscal year shall be equal to: (i) the amounts
46 which are required to be deposited in the capital reserve fund author-
47 ized to be created and established pursuant to subdivision three of this
48 section during such fiscal year in order to maintain such capital
49 reserve fund of the corporation at the level required in accordance with
50 subdivision five of this section; (ii) the amounts required to be depos-
51 ited in the debt service fund of the corporation to pay all interest and
52 all payments of principal and redemption premium, if any, on notes and
53 bonds secured by such debt service fund maturing or otherwise coming due
54 during such fiscal year; and (iii) the amounts required to be deposited
55 in the operating fund of the corporation, as determined by the corpo-
56 ration, to meet the operating requirements and other expenses of the
S. 8578 211
1 corporation during such fiscal year. If any increase shall occur in the
2 cash requirements specified above, or if payments are required at a time
3 or times earlier than previously certified or if the city shall for any
4 reason fail to make timely payment of the principal and accrued interest
5 due on any obligation issued by the city to the corporation and maturing
6 within the same fiscal year, such [chairman] chairperson shall certify a
7 revised schedule of cash requirements for such fiscal year to the state
8 comptroller and to the mayor. The schedule accompanying each certif-
9 ication (or revision thereof) shall provide for such payment dates as
10 the corporation deems appropriate to assure that sufficient funds will
11 be available from the sources identified below to enable it to meet its
12 current obligations as they come due. Upon receipt of such certif-
13 ication, or any revision thereof, the state comptroller shall pay such
14 amount to the corporation for deposit in the appropriate funds, in
15 accordance with such certification from the special account established
16 for the corporation in the municipal assistance tax fund, in accordance
17 with subdivision one of section ninety-two-d of the state finance law,
18 including any amount transferred to the municipal assistance tax fund
19 from the stock transfer tax fund pursuant to subdivision four of section
20 [92-b] ninety-two-b of the state finance law. Any such payment shall
21 be made within thirty days of receipt of the certification or at the
22 time specified in the certification, whichever is later; provided that
23 any such amounts shall have been first appropriated by the state for
24 such purpose or shall have been otherwise made available. Any amount so
25 paid to the corporation shall be deducted from the amount otherwise
26 payable to the city or the city of Staten Island, as the case may be,
27 from the municipal assistance tax fund established by section ninety-
28 two-d of the state finance law and shall not obligate the state to make,
29 nor entitle the city or the city of Staten Island, as the case may be,
30 to receive, any additional payments.
31 § 12-013. Subdivision 1 of section 3036-a of the public authorities
32 law, as amended by chapter 55 of the laws of 1992, is amended to read as
33 follows:
34 1. In addition to the total amount certified by such [chairman] chair-
35 person for such fiscal year, all as referred to in subdivision one of
36 section three thousand thirty-six, the [chairman] chairperson shall at
37 the same time certify to the state comptroller and to the mayor a sched-
38 ule setting forth additional cash requirements of the corporation which
39 shall be equal to: (i) the amounts which are required to be deposited in
40 the capital reserve fund authorized to be created and established pursu-
41 ant to subdivision two of this section (in this section called the capi-
42 tal reserve fund) during such fiscal year in order to maintain the capi-
43 tal reserve fund at the level required in accordance with subdivision
44 four of this section; (ii) the amounts required to be deposited in the
45 bond service fund of the corporation to pay all interest and all
46 payments of principal and redemption premium, if any, on notes and bonds
47 payable from the sources hereinafter identified in this section and
48 maturing or otherwise coming due during such fiscal year; and (iii) the
49 amounts required to be deposited in the operating fund of the corpo-
50 ration heretofore established, as determined by the corporation, to meet
51 the operating requirements and other expenses of the corporation during
52 such fiscal year. If any increase shall occur in such additional cash
53 requirements specified above, or if payments are required at a time or
54 times earlier than previously certified or if the city shall for any
55 reason fail to make timely payment of the principal and accrued interest
56 due on any obligation issued by the city to the corporation and maturing
S. 8578 212
1 within the same fiscal year, such [chairman] chairperson shall certify a
2 revised schedule of such additional cash requirements for such fiscal
3 year to the state comptroller and to the mayor. The schedule accompany-
4 ing each certification (or revision thereof) shall provide for such
5 payment dates as the corporation deems appropriate to assure that suffi-
6 cient funds will be available from the sources identified below to
7 enable it to meet its current obligations under this section as they
8 come due. Upon receipt of such certification, or any revision thereof,
9 the state comptroller shall pay such amount to the corporation for
10 deposit in the appropriate funds referred to in this section, in accord-
11 ance with such certification from the special account established for
12 the corporation in the municipal assistance state aid fund in accord-
13 ance with subdivision one of section ninety-two-e of the state finance
14 law and, subject to agreements with outstanding bond and note holders of
15 the corporation, from the special account established for the corpo-
16 ration in the municipal assistance tax fund, in accordance with subdivi-
17 sion one of section ninety-two-d of the state finance law, including any
18 amount transferred to the municipal assistance tax fund from the stock
19 transfer tax fund pursuant to subdivision four of section ninety-two-b
20 of the state finance law. Any such payment shall be made within thirty
21 days of receipt of the certification or at the time specified in the
22 certification, whichever is later; provided that any such amounts shall
23 have been first appropriated by the state for such purpose or shall have
24 been otherwise made available. Any amount paid to the corporation from
25 such municipal assistance state aid fund shall be deducted from the
26 amount otherwise payable to the city or the city of Staten Island, as
27 the case may be, as per capita aid pursuant to sections fifty-four and
28 ninety-two-e of the state finance law and shall not obligate the state
29 to make, nor entitle the city or the city of Staten Island, to receive,
30 any additional payments of per capita aid. Any amount so paid to the
31 corporation from the municipal assistance tax fund shall, in addition to
32 the amount deducted pursuant to subdivision one of section three thou-
33 sand thirty-six, be deducted from the amount otherwise payable to the
34 city or the city of Staten Island, as the case may be, from the munici-
35 pal assistance tax fund and shall not obligate the state to make, nor
36 entitle the city or the city of Staten Island to receive, any additional
37 payments from such municipal assistance tax fund.
38 § 12-014. Subdivision 1 of section 3036-b of the public authorities
39 law, as amended by chapter 55 of the laws of 1992, is amended to read as
40 follows:
41 1. In addition to the total amount certified by such [chairman] chair-
42 person for such fiscal year, all as referred to in subdivision one of
43 each of sections three thousand thirty-six and three thousand thirty-
44 six-a of this title, the [chairman] chairperson shall at the same time
45 certify to the state comptroller and to the mayor a schedule setting
46 forth additional cash requirements of the corporation which shall be
47 equal to: (i) the amounts required to be deposited in the bond payment
48 fund of the corporation to pay all interest and all payments of princi-
49 pal and redemption premium, if any, on bonds and notes payable from the
50 sources hereinafter identified in this section and maturing or otherwise
51 coming due during such fiscal year; (ii) the amounts required to be
52 deposited in the operating fund of the corporation heretofore estab-
53 lished, as determined by the corporation, to meet the operating require-
54 ments and other expenses of the corporation during such fiscal year to
55 the extent not otherwise provided for; and (iii) the amounts required to
56 be deposited in the bond reserve fund created and established pursuant
S. 8578 213
1 to the agreements of the corporation made with the holders of its bonds
2 or notes issued pursuant to subdivision two-b of section three thousand
3 thirty-three of this title during such fiscal year in order to maintain
4 the bond reserve fund at the level required in accordance with the
5 agreements of the corporation made with the holders of its bonds or
6 notes issued pursuant to subdivision two-b of section three thousand
7 thirty-three of this title. If any increase shall occur in such addi-
8 tional cash requirements specified above, or if payments are required at
9 a time or times earlier than previously certified or if the city shall,
10 for any reason, fail to make timely payment of the principal and accrued
11 interest due on any obligation issued by the city to the corporation and
12 maturing within the same fiscal year, such [chairman] chairperson shall
13 certify a revised schedule of such additional cash requirements for such
14 fiscal year to the state comptroller and to the mayor. The schedule
15 accompanying each certification, or revision thereof, shall provide for
16 such payment dates as the corporation deems appropriate to assure that
17 sufficient funds will be available from the sources identified below to
18 enable it to meet its current obligations under this section as they
19 come due. Upon receipt of such certification, or any revision thereof,
20 the state comptroller shall pay such amount to the corporation for
21 deposit in the appropriate funds referred to in this section, in accord-
22 ance with such certification and subject to agreements with holders of
23 outstanding bonds and notes of the corporation, from the special account
24 established for the corporation in the municipal assistance state aid
25 fund in accordance with subdivision one of section ninety-two-e of the
26 state finance law and from the special account established for the
27 corporation in the municipal assistance tax fund in accordance with
28 subdivision one of section ninety-two-d of the state finance law,
29 including any amount transferred to the municipal assistance tax fund
30 from the stock transfer tax fund pursuant to subdivision four of section
31 ninety-two-b of the state finance law. Any such payment shall be made
32 within thirty days of receipt of the certification or at the time speci-
33 fied in the certification, whichever is later; provided that any such
34 amounts shall have been first appropriated by the state for such purpose
35 or shall have been otherwise made available. Any amount paid to the
36 corporation from such municipal assistance state aid fund, in addition
37 to the amount deducted pursuant to subdivision one of section three
38 thousand thirty-six-a of this title, shall be deducted from the amount
39 otherwise payable to the city or the city of Staten Island, as the case
40 may be, as per capita aid pursuant to sections fifty-four and ninety-
41 two-e of the state finance law and shall not obligate the state to make,
42 nor entitle the city or the city of Staten Island to receive, any addi-
43 tional payments of per capita aid. Any amount so paid to the corporation
44 from the municipal assistance tax fund, in addition to the amount
45 deducted pursuant to subdivision one of each of section three thousand
46 thirty-six or three thousand thirty-six-a of this title, shall be
47 deducted from the amount otherwise payable to the city or the city of
48 Staten Island, as the case may be, from the municipal assistance tax
49 fund and shall not obligate the state to make, nor entitle the city or
50 the city of Staten Island to receive, any additional payments from such
51 municipal assistance tax fund.
52 § 12-015. Section 6 of section 2 of chapter 868 of the laws of 1975,
53 constituting the New York state financial emergency act for the city of
54 New York, subdivision 1 as amended by chapter 777 of the laws of 1978,
55 subdivision 3 as amended by chapter 869 of the laws of 1975 and subdivi-
S. 8578 214
1 sion 4 as amended by chapter 201 of the laws of 1978, is amended to read
2 as follows:
3 § 6. Administration of the board. 1. The membership of the board
4 shall be the governor, the state comptroller (pursuant to [his] such
5 official's authority to supervise the accounts of any political subdivi-
6 sion of the state), the mayor, the city comptroller, the mayor of the
7 city of Staten Island, the comptroller of the city of Staten Island, and
8 three members appointed by the governor with the advice and consent of
9 the senate. At least two of the appointed members shall be residents of
10 the city or have their principal place of business in the city. The
11 mayor of the city of Staten Island may recommend to the governor the
12 appointment of one such appointed member. Such appointed members shall
13 serve at the pleasure of the governor. The governor shall be the [chair-
14 man] chairperson of the board and the governor or [his] the governor's
15 representative shall preside over all meetings of the board. The board
16 shall act by majority vote of the entire board, provided, however, on
17 matters affecting only the city, as determined by the governor, the
18 state comptroller and the appointed members, the mayor of the city of
19 Staten Island and the comptroller of the city of Staten Island shall not
20 vote, and on matters affecting only the city of Staten Island, as deter-
21 mined by the governor, the state comptroller and the appointed members,
22 the mayor and the city comptroller shall not vote. Such officials not
23 voting shall not be considered members of the board for determining a
24 majority. The board shall maintain a record of its proceedings in such
25 form as it may determine, but such record shall indicate attendance and
26 all votes cast by each member. Every member of the board, who is other-
27 wise an elected official of the state or city, shall be entitled to
28 designate a representative to attend, in [his] such official's place,
29 meetings of the board and to vote or otherwise act in [his] such offi-
30 cial's behalf. Written notice of such designation shall be furnished to
31 the board by the designating member prior to any meeting attended by
32 [his] such official's representative. Any such representative shall
33 serve at the pleasure of the designating member. No such representative
34 shall be authorized to delegate any of [his] such representative's
35 duties or functions to any other person. The lieutenant governor,
36 temporary president of the senate, the minority leader of the senate,
37 speaker and minority leader of the assembly, the president of the coun-
38 cil of the city of New York, the city board of estimate acting by major-
39 ity vote, the speaker and the minority leader of the common council of
40 the city of Staten Island and the [vice-chairman] vice-chairperson and
41 the minority leader of the council of the city of New York, shall each
42 be entitled to appoint a representative to the board. Each such repre-
43 sentative shall be entitled to receive notice of and to attend all meet-
44 ings of the board but shall not be entitled to vote. No representative
45 shall be an employee or officer of the federal, state or city govern-
46 ments. Each representative shall serve at the pleasure of the appoint-
47 ing official or body, shall be eligible for reappointment, and shall
48 hold office until [his] such representative's successor has been
49 appointed.
50 2. Notwithstanding any inconsistent provisions of law, general,
51 special or local, no officer or employee of the state, or political
52 subdivision of the state, any governmental entity operating any public
53 school or college or other public agency or instrumentality or unit of
54 government which exercises governmental powers under the laws of the
55 state, shall forfeit [his] such person's office or employment by reason
56 of [his] such person's acceptance or appointment as a member, represen-
S. 8578 215
1 tative, officer, employee or agent of the board nor shall service as
2 such member, representative, officer, employee or agent of the board be
3 deemed incompatible or in conflict with such office or employment.
4 3. The members of the board appointed by the governor and all repre-
5 sentatives designated by members of the board shall serve without salary
6 or per diem allowance but shall be entitled to reimbursement for actual
7 and necessary expenses incurred in the performance of official duties
8 under this act, provided however that such members and representatives
9 are not, at the time such expenses are incurred, public employees other-
10 wise entitled to such reimbursement.
11 4. The governor and the mayor, jointly, shall appoint an executive
12 director of the board who shall serve at the pleasure of the board and
13 may be removed by the board. The board may delegate to the executive
14 director or to one or more of its other officers, employees or agents,
15 such powers and duties as the board may deem proper, except any duties
16 inconsistent with the duties and functions prescribed by any other
17 office or position any such person may hold.
18 § 12-016. Section 7 of section 2 of chapter 868 of the laws of 1975,
19 constituting the New York state financial emergency act for the city of
20 New York, paragraphs a, b, c, e, f and g of subdivision 1, paragraphs
21 (b) and (f) of subdivision 3 and subdivisions 4 and 6 as amended and
22 subdivision 7 as added by chapter 777 of the laws of 1978, paragraph h
23 of subdivision 1 as amended by chapter 870 of the laws of 1975, para-
24 graphs d and i of subdivision 1 as amended by chapter 830 of the laws of
25 1987, subdivisions 3 and 5 as added by chapter 201 of the laws of 1978,
26 and paragraph (i) of subdivision 3 as amended by chapter 285 of the laws
27 of 1985, is amended to read as follows:
28 § 7. Functions of the board. 1. In carrying out the purposes of this
29 act, the board shall perform the following functions:
30 a. In accordance with the provisions of section eight of this act, the
31 board shall (i) consult with the city and the covered organizations and
32 to the extent it deems it necessary or appropriate to accomplish the
33 purposes of this act, the city of Staten Island, in the preparation of
34 the financial plan, and certify to the city the revenue estimates
35 approved therein, (ii) prescribe the form of the financial plan and the
36 supporting information required in connection therewith, and (iii) exer-
37 cise the rights of approval, disapproval and modification with respect
38 to the financial plan, including but not limited to the revenue esti-
39 mates contained therein.
40 b. The board, to the extent it deems it necessary or appropriate in
41 order to accomplish the purposes of this act, shall establish and adopt
42 procedures with respect to the (i) proper maintenance of the board fund,
43 (ii) the deposit and investment of revenues in such fund and (iii)
44 disbursement of monies from such fund.
45 c. The board shall, from time to time and to the extent it deems
46 necessary or appropriate in order to accomplish the purposes of this
47 act, (i) review the operations, management, efficiency and productivity
48 of such city operations and of such covered organizations or of the city
49 of Staten Island or portions thereof as the board may determine, and
50 make reports thereon; (ii) audit compliance with the financial plan in
51 such areas as the board may determine; (iii) recommend to the city, the
52 city of Staten Island and the covered organizations such measures relat-
53 ing to their operations, management, efficiency and productivity as it
54 deems appropriate to reduce costs and improve services so as to advance
55 the purposes of this act; and (iv) obtain information of the financial
56 condition and needs of the city, the city of Staten Island and the
S. 8578 216
1 covered organizations. Nothing herein shall diminish the powers of the
2 comptroller otherwise provided by law and the board may request the
3 assistance of the comptroller in performing the above functions.
4 d. The board (i) shall receive from the city and review the reports to
5 be prepared by or on behalf of the city pursuant to section seven-a;
6 (ii) shall receive from the city, the city of Staten Island and the
7 covered organizations and from the deputy comptroller, and shall review
8 such financial statements and projections, budgetary data and informa-
9 tion, and management reports and materials as the board deems necessary
10 or desirable to accomplish the purposes of this act; and (iii) shall
11 inspect, copy and audit such books and records of the city, the city of
12 Staten Island and the covered organizations as the board deems necessary
13 or desirable to accomplish the purposes of this act.
14 e. All contracts entered into by the city or any covered organization
15 and, to the extent the board deems necessary or desirable to accomplish
16 the purposes of this act, by the city of Staten Island must be consist-
17 ent with the provisions of this act and must comply with the require-
18 ments of the financial plan as approved by the board. With respect to
19 all contracts or other obligations to be entered into by the city or any
20 covered organization after October fifteenth, nineteen hundred seventy-
21 five, requiring the payment of funds or the incurring of costs by the
22 city or any covered organization:
23 (i) Within twenty days from the effective date of this act the mayor
24 shall present to the board proposed regulations respecting the catego-
25 ries and types of contracts and other obligations required to be
26 reviewed by the board pursuant to this subdivision [e]. Within thirty
27 days from the effective date of this act, the board shall approve or
28 modify and approve such proposed regulations or promulgate its own in
29 the event that such proposed regulations are not submitted to it within
30 the twenty days as provided for herein. Such regulations may thereafter
31 be modified by the board from time to time on not less than thirty days
32 notice to the mayor and the mayor may from time to time propose modifi-
33 cations to the board. Unless expressly disapproved or modified by the
34 board within thirty days from the date of submission by the mayor, any
35 such proposed regulations or modifications shall be deemed approved by
36 the board;
37 (ii) Prior to entering into any contract or other obligations subject
38 to review of the board under its regulations, the city or any covered
39 organization and, to the extent the board deems necessary or desirable
40 to accomplish the purposes of this act, the city of Staten Island shall
41 submit a copy of such contract or other obligation to the board accompa-
42 nied by an analysis of the projected costs of such contract or other
43 obligation and a certification that performance thereof will be in
44 accordance with the financial plan, all in such form and with such addi-
45 tional information as the board may prescribe. The board shall promptly
46 review the terms of such contract or other obligation and the supporting
47 information in order to determine compliance with the financial plan;
48 (iii) During a control period the board shall, by order, disapprove
49 any contract or other obligation reviewed by it only upon a determi-
50 nation that, in its judgment, the performance of such contract or other
51 obligation would be inconsistent with the financial plan and the city,
52 the city of Staten Island or covered organization shall not enter into
53 such contract or other obligation;
54 (iv) During a control period if the board approves the terms of a
55 reviewed contract or other obligation, the city or covered organization
56 and, to the extent the board deems necessary or desirable to accomplish
S. 8578 217
1 the purposes of this act, the city of Staten Island may enter into such
2 contract or other obligation upon the terms submitted to the board.
3 Failure of the board to notify the city, the city of Staten Island or
4 covered organization within thirty days (or such additional time not
5 exceeding thirty days as the board shall have notified the city or
6 covered organization, that it requires to complete its review and analy-
7 sis) after submission to it of a contract or other obligation that such
8 contract or other obligation has been disapproved shall be deemed to
9 constitute board approval thereof.
10 f. Upon submission thereof by the city, the board shall review the
11 terms of each proposed long-term and short-term borrowing by the city
12 and any covered organization to be effected during a control period but
13 after October fifteenth, nineteen hundred seventy-five, and no such
14 borrowing shall be made unless approved by the board. To the extent the
15 board deems necessary or desirable to accomplish the purposes of this
16 act, during a control period, the city of Staten Island shall submit and
17 the board shall review the terms of each proposed long-term and short-
18 term borrowing by the city of Staten Island and no such borrowing shall
19 be made unless approved by the board. Each such proposed borrowing by a
20 covered organization shall be submitted to the city by the covered
21 organization before it may be considered by the board. Not more than
22 thirty days after any such submission by a covered organization the city
23 shall transmit any such proposed terms of borrowing to the board togeth-
24 er with the certification of the city as to whether such proposed terms
25 of borrowing are in accordance with the financial plan and are consist-
26 ent with the objectives and purposes of this act. Any such submission
27 to the city shall be accompanied by a certification of the covered
28 organization that the terms thereof are in accordance with the financial
29 plan and are consistent with the objectives or purposes of this act. The
30 transmittal by the city to the board shall include a recommendation by
31 the city for the approval or disapproval of such proposed terms of
32 borrowing pursuant to the terms of this paragraph. In the event the
33 city does not make such transmittal within such thirty day period, such
34 covered organization may submit such proposed borrowing directly to the
35 board. The board shall disapprove any borrowing if it determines that
36 such borrowing is inconsistent with the financial plan or the objectives
37 or purposes of this act. The board shall consult and coordinate with the
38 municipal assistance corporation for the city of New York with respect
39 to borrowings of the city and any covered organization and shall receive
40 reports from the [muncipal] municipal assistance corporation for the
41 city of New York on its review of borrowings by the city. No covered
42 organizations shall be prohibited from issuing bonds or notes to pay
43 outstanding bonds or notes.
44 g. The board and the comptroller shall receive quarterly reports from
45 the city comptroller setting forth the debt service requirements on all
46 bonds and notes of the city and the covered organizations for the
47 following quarter, which reports shall be in such form and contain such
48 information as the board shall determine. Such reports shall be issued
49 no later than sixty days prior to the start of the quarter to which they
50 pertain and shall be updated immediately upon each issuance of bonds or
51 notes after the date of such report to reflect any change in debt
52 service requirements as a result of such issuance. The board also shall
53 receive from the city monthly and quarterly financial reports, which
54 reports shall be in such form and contain such information as the board
55 shall determine and shall be made available by the city to the public.
56 In order to avoid duplicative reports and reporting requirements, to the
S. 8578 218
1 extent that the city is required to submit monthly or quarterly finan-
2 cial reports to the department of the treasury pursuant to any agreement
3 or arrangement made in connection with federal guarantees of notes or
4 boards issued by the city or a state financing agency, copies of such
5 reports shall be submitted to the board in satisfaction of the monthly
6 and quarterly reporting requirements set forth above, together with such
7 additional information as the board may require. Each monthly and quar-
8 terly report herein required to be submitted to the board must indicate
9 any variance between actual and budgeted revenues, expenses or cash for
10 the period covered by such report. During a control period, to the
11 extent the board deems necessary or desirable to accomplish the purposes
12 of this act, the city of Staten Island shall be subject to the same
13 reporting requirements as the city.
14 h. The board shall issue, to the appropriate officials of the city,
15 the city of Staten Island and the covered organizations, such orders as
16 it deems necessary to accomplish the purposes of this act, including but
17 not limited to timely and satisfactory implementation of an approved
18 financial plan. Any order so issued shall be binding upon the official
19 to whom it was issued and failure to comply with such order shall
20 subject the official to the penalties described in section eleven of
21 this act.
22 i. The board shall coordinate with the municipal assistance corpo-
23 ration for the city of New York and the deputy comptroller with respect
24 to the performance of its review and monitoring of the revenues and
25 expenditures of the city and the covered organizations.
26 2. In the event of any default by the city on its outstanding bonds or
27 notes, and so long as such default has not been cured by the city, the
28 board may, any provisions of this act notwithstanding, take any action
29 that it is authorized to take pursuant to title six-A of article two of
30 the local finance law, and may direct the city to take any action that
31 the city is authorized to take under such law.
32 3. (a) Notwithstanding any provision of the New York City Collective
33 Bargaining Law, codified as chapter [fifty-four] three of title twelve
34 of the New York city administrative code, or any general or special law
35 to the contrary, any report or recommendation of an impasse panel
36 constituted pursuant to such chapter which provides for an increase in
37 wages or fringe benefits of any employee of the city or covered organ-
38 ization, in addition to considering any standard or factor required to
39 be considered by applicable law, including the standards enumerated in
40 section [1173-7.0] 12-311(c)(3)(b) of such chapter, shall also take into
41 consideration and accord substantial weight to the financial ability of
42 the city and or covered organization to pay the cost of such increase in
43 wages or fringe benefits.
44 (b) The board of collective bargaining constituted pursuant to such
45 chapter, when reviewing such report or recommendation before proceeding
46 to other issues, shall make a threshold determination as to whether such
47 report or recommendation for an increase in wages or fringe benefits is
48 within the city's and or covered organization's financial ability to
49 pay. If the threshold determination is in the negative, the matter shall
50 be remitted to the impasse panel for further consideration. If the
51 threshold determination is in the affirmative, the further review of the
52 report or recommendation with respect to other issues, if any, shall
53 proceed as provided by law. Unless the parties stipulate otherwise, the
54 threshold determination shall be made within thirty days after
55 submission of the report or recommendation to the board of collective
56 bargaining.
S. 8578 219
1 (c) Any determination pursuant to article eight of the labor law or
2 any agreement or stipulation entered into in lieu thereof which provides
3 for an increase in wages or fringe benefits of any employee of the city
4 or covered organization shall, in addition to considering any standard
5 or factor required to be considered by applicable law, also take into
6 consideration and accord substantial weight to the financial ability of
7 the city and or covered organization to pay the cost of such increase.
8 (d) Any report or recommendation of a fact finding or similar type
9 panel or any interest arbitration award which provides for an increase
10 in wages or fringe benefits of any employee of the city or covered
11 organization not subject to the provisions of the New York City Collec-
12 tive Bargaining Law, codified as chapter [fifty-four] three of title
13 twelve of the New York city administrative code, shall, in addition to
14 considering any standard or factor required to be considered by applica-
15 ble law, also take into consideration and accord substantial weight to
16 the financial ability of the city and or covered organization to pay the
17 cost of such increase.
18 (e) Any party to a proceeding before the board of collective bargain-
19 ing as described in paragraph (b) or other body as described in para-
20 graphs (c) or (d) [hereof] of this subdivision may commence a special
21 proceeding in the appellate division, first department, supreme court,
22 state of New York, to review the threshold determination as to the city
23 and/or covered organization's financial ability to pay. Such proceeding
24 shall be commenced not later than thirty days after the final determi-
25 nation has been made by the board of collective bargaining in the case
26 of paragraph (b) or other body in the case of paragraphs (c) or (d) of
27 this subdivision. Such proceeding shall have preference over all other
28 causes in such appellate division, other than causes relating to the
29 election law.
30 (f) The court shall make a de novo review of the record solely for the
31 purpose of determining whether an award of an increase in wages or
32 fringe benefits was within the city's and or covered organization's
33 financial ability to pay. The court's findings as to such issue shall be
34 based upon a preponderance of all the evidence set forth in the record.
35 Unless the parties stipulate otherwise, arguments or submission shall be
36 had within fifteen days after commencement of the special proceeding and
37 the court shall render its decision within fifteen days thereafter. All
38 questions, other than the question relating to the threshold determi-
39 nation, shall be reviewed by the appellate division in the same proceed-
40 ing in the manner provided by articles seventy-five or seventy-eight of
41 the civil practice law and rules as may be appropriate, notwithstanding
42 that the issue would otherwise have been cognizable in the first
43 instance before a special or trial term of the supreme court. If an
44 appeal shall otherwise lie from such determination of the appellate
45 division to the court of appeals, notice of such appeal shall be filed
46 within thirty days after the entry of the final order or judgment of the
47 appellate division if such appeal is of right or within ten days after
48 entry of an order granting leave to appeal and such appeal shall have
49 preference over all other appeals other than appeals relating to the
50 election law.
51 (g) At any stage of any proceeding under paragraphs (a), (b), (c), (d)
52 and (e) hereof or any appeal from an order or judgment therefrom, the
53 board may intervene as a party on the issue of the financial ability of
54 the city and or covered organization to pay the cost of an increase in
55 wages or fringe benefits.
S. 8578 220
1 (h) For the purposes of this subdivision, financial ability to pay
2 shall mean the financial ability of the city and or covered organization
3 to pay the cost of any increase in wages or fringe benefits without
4 requiring an increase in the level of city taxes existing at the time of
5 the commencement of a proceeding under paragraph (a), (c) or (d) hereof.
6 [(i) The provisions of this subdivision shall terminate on June thir-
7 tieth, nineteen hundred eighty-six.]
8 4. During a control period, except upon approval by the board in
9 accordance with the provisions of paragraph e or f of subdivision one of
10 this section, as the board shall determine, neither the city nor a
11 covered organization nor, to the extent the board deems necessary or
12 desirable to accomplish the purposes of this act, the city of Staten
13 Island shall enter any agreement or other arrangement, whether or not it
14 creates a debt of the city, the city of Staten Island or a covered
15 organization, pursuant to which the revenues or credit of the city or
16 the city of Staten Island may be directly or indirectly pledged, encum-
17 bered, committed or promised, contingently or otherwise, for the payment
18 of obligations of a public benefit corporation. Nothing in this subdivi-
19 sion shall limit the right of the city to comply with the provisions of
20 any existing agreement or other arrangement in respect of the obli-
21 gations of a public benefit corporation.
22 5. The board may employ such consultants as it may deem necessary to
23 assist it in performing its functions required under this act.
24 6. The board shall have the authority to make and execute agreements
25 and all other instruments which the board deems necessary for the exer-
26 cise of its powers and functions including, in connection with any
27 agreement by the federal government or any agency or instrumentality
28 thereof to guarantee the payment of the principal of or interest on
29 bonds or notes issued by the city or by a state financing agency, to
30 enter into one or more agreements containing terms and conditions
31 required by the secretary of the treasury pursuant to the New York City
32 Loan Guarantee Act of l978, Public Law 95-339 with the federal govern-
33 ment or any agency or instrumentality thereof with respect to such guar-
34 antee or any matters related thereto and to comply with such terms and
35 conditions.
36 7. The board may appoint qualified individuals to participate as
37 members of such audit, productivity or similar committees or councils as
38 the city may from time to time establish in consultation with the board.
39 Such individuals, however, shall not be deemed to be officers, employees
40 or agents of the board. The board shall review and report on, not less
41 than annually, the development and implementation of methods for enhanc-
42 ing the productivity of the city's labor force proposed by any such
43 committee or council.
44 § 12-017. Section 8 of section 2 of chapter 868 of the laws of 1975,
45 constituting the New York state financial emergency act for the city of
46 New York, subdivisions 1, 2, 4, 5 and 6 as amended by chapter 201 of the
47 laws of 1978, the opening paragraph and paragraph c of subdivision 1,
48 subdivisions 2-a and 3 as amended by chapter 777 of the laws of 1978,
49 paragraph a of subdivision 1 as amended by chapter 118 of the laws of
50 2020, is amended to read as follows:
51 § 8. Development of the financial plan. 1. Pursuant to the proce-
52 dures contained in subdivision three of this section, each year the
53 city and to the extent the board deems necessary or desirable to accom-
54 plish the purposes of this act, the city of Staten Island shall develop,
55 and may from time to time modify, with the approval of the board during
S. 8578 221
1 a control period, a four year financial plan covering the city and the
2 covered organizations or the city of Staten Island, as applicable.
3 Each such financial plan and financial plan modification shall comply
4 with the requirements of subdivision four of this section and shall,
5 except as otherwise provided pursuant to subdivision two-a of this
6 section, conform to the following standards:
7 a. For its fiscal years ending June thirtieth, nineteen hundred seven-
8 ty-nine through June thirtieth, nineteen hundred eighty-one, the city's
9 budget covering all expenditures other than capital items shall be
10 prepared and balanced so that the results thereof would not show a defi-
11 cit when reported in accordance with the accounting principles set forth
12 in the state comptroller's uniform system of accounts for munici-
13 palities, as the same may be modified by the comptroller, in consulta-
14 tion with the city comptroller, for application to the city; subject to
15 the provision of subdivision four of section three thousand thirty-eight
16 of the public authorities law with respect to contributions by the city
17 or other public employer to any retirement system or pension fund and
18 subject to the provision of paragraph (c) of subdivision five of section
19 three thousand thirty-eight of the public authorities law with respect
20 to expense items included in the capital budget of the city. For the
21 fiscal year ending June thirtieth, nineteen hundred eighty-two, and for
22 each fiscal year thereafter, the city's budget covering all expenditures
23 other than capital items shall be prepared and balanced so that the
24 results thereof would not show a deficit when reported in accordance
25 with generally accepted accounting principles and would permit compar-
26 ison of the budget with the report of actual financial results prepared
27 in accordance with generally accepted accounting principles. With
28 respect to financial plans that include the fiscal years ending June
29 thirtieth, nineteen hundred seventy-nine through June thirtieth, nine-
30 teen hundred eighty-one, the city's budget covering all expenditures
31 other than capital items shall be prepared in accordance with generally
32 accepted accounting principles and there shall be substantial progress
33 in each such fiscal year towards achieving a city budget covering all
34 expenditures other than capital items the results of which would not
35 show a deficit when reported in accordance with generally accepted
36 accounting principles. The city shall eliminate expense items from its
37 capital budget not later than the commencement of the fiscal year ending
38 June thirtieth, nineteen hundred eighty-two. For the fiscal year ending
39 June thirtieth, nineteen hundred eighty-nine, and for each fiscal year
40 thereafter, the budgets covering all expenditures other than capital
41 items of each of the covered organizations shall be prepared and
42 balanced so that the results thereof would not show a deficit when
43 reported in accordance with generally accepted accounting principles;
44 and for each fiscal year prior thereto, there shall be substantial
45 progress towards such goal. Notwithstanding the foregoing and the
46 provisions of any general or special state law or local law to the
47 contrary, including but not limited to the New York city charter: (i)
48 all costs that would be capital costs in accordance with generally
49 accepted accounting principles, but for the application of governmental
50 accounting standards board statement number forty-nine, shall be deemed
51 to be capital costs for purposes of this act and any other provision of
52 state or local law, including but not limited to the New York city char-
53 ter, relevant to the treatment of such costs; and (ii) the determination
54 as to the existence of a deficit pursuant to this act and any other
55 provision of state or local law, including but not limited to the New
56 York city charter, shall be made without regard to changes in restricted
S. 8578 222
1 fund balances, as defined by the governmental accounting standards
2 board, where restrictions in relation to such fund balances are imposed
3 by state or federal law or regulation, or otherwise by private or
4 governmental parties other than the city of New York, and without regard
5 to funds held in the health stabilization fund, the school crossing
6 guards health insurance fund, any revenue stabilization fund established
7 pursuant to section fifteen hundred twenty-eight of the New York city
8 charter and the management benefits fund established by the city of New
9 York. Deposits into any such revenue stabilization fund shall be deemed
10 to be expenses of such city in the fiscal year in which such deposits
11 are made, and withdrawals from such fund shall be deemed to be revenues
12 of such city in the year in which such withdrawals are made; provided
13 however, that surpluses of such city, whether accumulated from fiscal
14 years ending prior to the effective date of the chapter of the laws of
15 two thousand twenty that amended this paragraph or existing at the close
16 of any fiscal year ending after such effective date, shall be deposited
17 into such revenue stabilization fund as soon as practicable, and such
18 deposits shall not be deemed expenses of the city in the fiscal year in
19 which such deposits are made.
20 b. The limitations on its outstanding short-term obligations required
21 by subdivision nine of section three thousand thirty-eight of the public
22 authorities law and by section nine-b of this act shall be observed at
23 all times, as each is amended from time to time.
24 c. Provision shall be made for the payment in full of the debt
25 service on all bonds and notes of the city and the covered organizations
26 (other than notes held by the municipal assistance corporation for the
27 city of New York to the extent that such corporation has evidenced its
28 intention not to present such notes for payment during the fiscal year
29 in which the determination is made provided that such notes were held by
30 such corporation on June thirtieth, nineteen hundred seventy-eight or
31 were issued in exchange for or in refunding or renewal of notes held by
32 such corporation on such date) and to the extent the board deems neces-
33 sary or desirable to accomplish the purposes of this act, the city of
34 Staten Island, for the adequate funding of programs of the city, the
35 city of Staten Island, if applicable and the covered organizations which
36 are mandated by state or federal law and for which obligations are going
37 to be incurred during the fiscal year and for payment of a guarantee fee
38 or any other amounts required by the United States of America or any
39 agency or instrumentality thereof in connection with the guarantee of
40 the payment of the principal of or interest on bonds or notes issued by
41 the city.
42 d. All projections of revenues and expenditures contained in a finan-
43 cial plan shall be based on reasonable and appropriate assumptions and
44 methods of estimation. All cash flow projections shall be based upon
45 reasonable and appropriate assumptions as to sources and uses of cash
46 (including but not limited to the timing thereof), and shall provide for
47 operations of the city, the city of Staten Island, if applicable and
48 covered organizations to be conducted within the cash resources so
49 projected.
50 e. The city shall provide a general reserve for each fiscal year to
51 cover potential reductions in its projected revenues or increases in its
52 projected expenditures during each such fiscal year. The amount
53 provided for such general reserve shall be estimated by the city in
54 accordance with paragraph d of this subdivision, but in no event shall
55 it be less than one hundred million dollars at the beginning of any
56 fiscal year.
S. 8578 223
1 f. For financial plans beginning with the fiscal year ending June
2 thirtieth, nineteen hundred eighty-three or any succeeding fiscal year,
3 the first fiscal year included in any financial plan shall make
4 provision for the repayment of any deficit incurred by the city during
5 the preceding fiscal year.
6 2. In developing the financial plan the city shall seek to achieve a
7 stabilized work force for the city and, to the extent a reduction in the
8 work force is required, primary recourse shall be had to the attrition
9 process to accomplish such reduction.
10 2-a. The city and the board shall confer concerning the projected
11 effect on the budgets of the city and the covered organizations of any
12 change in generally accepted accounting principles, or change in the
13 application of generally accepted accounting principles to the city and
14 the covered organizations, made after the effective date of this act.
15 If the board determines that immediate compliance with such change will
16 have a material effect on such budgets over a time period insufficient
17 to accommodate the effect without a substantial adverse impact on the
18 delivery of essential services, the board may authorize and approve a
19 method of phasing the requirements of such change into such budgets over
20 such reasonably expeditious time period as the board deems appropriate.
21 3. The financial plan shall be developed and, during a control peri-
22 od, shall be approved, and may from time to time be modified, in accord-
23 ance with the following procedures:
24 a. The city shall, by June first, nineteen hundred seventy-eight,
25 prepare and submit a financial plan to the board covering the four year
26 period which begins with the fiscal year ending June thirtieth, nineteen
27 hundred seventy-nine. Thereafter, at least fifty days prior to the
28 beginning of each fiscal year or on such other date as the board may
29 approve upon the request of the city or the city of Staten Island, if
30 applicable, the city, and, during a control period, to the extent the
31 board deems necessary or desirable to accomplish the purposes of this
32 act, the city of Staten Island shall prepare and submit a financial plan
33 to the board covering the four year period beginning with such fiscal
34 year. On such dates the mayor shall also submit to the board the city's
35 executive expense, revenue and capital budgets for the ensuing fiscal
36 year and a certificate of the mayor stating that such budgets are
37 consistent with the financial plan submitted therewith, that projections
38 contained in the budgets and financial plan are based upon reasonable
39 and appropriate assumptions and methods of estimation, and that opera-
40 tion within the budgets is feasible.
41 b. (i) During a control period the board shall promptly review each
42 financial plan and financial plan modification submitted by the city or,
43 the city of Staten Island, if applicable. Not more than forty-five days
44 after submission of a financial plan or more than thirty days after
45 submission of a financial plan modification the board shall determine
46 whether the financial plan or financial plan modification is complete
47 and complies with the standards set forth in subdivision one of this
48 section and shall approve or disapprove the financial plan or financial
49 plan modification in accordance with the provisions of this section. If
50 the board determines that the financial plan or financial plan modifica-
51 tion is complete and complies with the standards set forth in subdivi-
52 sion one of this section, the board shall approve the financial plan or
53 financial plan modification. Upon making such determination the board
54 shall make a certification to the city or, the city of Staten Island, if
55 applicable, setting forth revenue estimates approved by the board in
56 accordance with such determination.
S. 8578 224
1 (ii) At all times other than during a control period the board shall
2 promptly review each financial plan and financial plan modification
3 submitted by the city. If the board determines after such review that
4 the financial plan or financial plan modification submitted by the city
5 is not in accordance with the standards set forth in subdivision one of
6 this section, the board shall promptly so notify the city and may take
7 such other action under this act as it deems appropriate.
8 c. The board shall disapprove a financial plan or financial plan
9 modification if during a control period it determines that the financial
10 plan or financial plan modification is incomplete or fails to comply
11 with the provisions of subdivision one of this section. In disapproving
12 a financial plan or a financial plan modification the board may order
13 that one or more of the following actions be taken:
14 (i) expenditures or reserves to assure availability of amounts
15 required for debt service requirements on all bonds and notes of the
16 city, the city of Staten Island, if applicable and the covered organiza-
17 tions or expenditures required for adequate funding of programs of the
18 city, the city of Staten Island, if applicable and the covered organiza-
19 tions mandated by state or federal law and for which obligations are
20 going to be incurred during the fiscal year, be increased to the levels
21 required to provide for their payment in full;
22 (ii) the revenue projections (or any item thereof) during any period
23 be adjusted to comply with the standards set forth in subdivision one of
24 this section; and
25 (iii) the aggregate expenditures projected for any period be reduced
26 to conform to revenue estimates certified by the board in order to
27 comply with the standards set forth in subdivision one of this section.
28 d. During a control period in the event that the city or the city of
29 Staten Island, if applicable shall, for any reason, fail to submit a
30 financial plan prior to the beginning of a fiscal year, as required by
31 paragraph a of this subdivision, or in the event that the board has not,
32 for any reason permitted under this act, approved a financial plan
33 submitted by the city or the city of Staten Island, if applicable prior
34 to the beginning of a fiscal year, the board shall formulate and adopt a
35 financial plan to be effective until the board approves a financial plan
36 submitted by the city or the city of Staten Island, if applicable. Any
37 financial plan so formulated by the board shall comply with the stand-
38 ards set forth in subdivision one of this section. The budgets and
39 operations of the city or the city of Staten Island, if applicable and
40 the covered organizations at all times shall be in conformance and
41 compliance with the respective financial plan then in effect.
42 e. After the initial adoption by the city, or the approval by the
43 board during a control period, or, during a control period, to the
44 extent the board deems necessary or desirable to accomplish the purposes
45 of this act, the initial adoption by the city of Staten Island, of a
46 financial plan, projections of revenues and expenditures and other esti-
47 mates contained in the financial plan shall be reexamined by the board
48 at least quarterly in consultation with the city and the covered organ-
49 izations, and during a control period the city or the city of Staten
50 Island, as applicable shall prepare and submit to the board financial
51 plan modifications at such times, in such detail and within such time
52 periods as the board may require in order to modify the respective
53 financial plan to conform to the standards set forth in subdivision one
54 of this section. During a control period in the event the board deter-
55 mines that (i) revenue estimates (or any item thereof) must be adjusted
56 to ensure compliance with the standards set forth in subdivision one of
S. 8578 225
1 this section, or (ii) that the city or a covered organization or the
2 city of Staten Island, as applicable is expending funds at a rate that
3 would cause expenditures to exceed the aggregate expenditure limitation
4 for the city or covered organization or the city of Staten Island, as
5 applicable provided for in the financial plan then in effect, prior to
6 the expiration of the fiscal year, the city or the city of Staten
7 Island, as applicable shall submit a financial plan modification to
8 effect such adjustments in revenue estimates and reductions in total
9 expenditures as may be necessary to conform to such standards or aggre-
10 gate expenditure limitations. If during a control period the city fails
11 to submit such modification after such determination as to adjustments
12 in revenue estimates or such determination as to rates of expenditures,
13 or to submit a financial plan modification in the detail or within the
14 time period specified by the board, or if such modification is disap-
15 proved by the board as not conforming to the standards set forth in
16 subdivision one of this section, the board may formulate and adopt such
17 financial plan modification as it deems appropriate to ensure that the
18 financial plan with respect to such entity continues to meet such stand-
19 ards. Such modification shall become effective on its adoption.
20 Notwithstanding the provisions of this section, in the event the city or
21 the city of Staten Island, as applicable shall determine that, due to
22 unforeseen events during a fiscal year, compliance with the standards
23 set forth in paragraph a of subdivision one of this section would result
24 in a material adverse impact upon the delivery of essential services,
25 the city or the city of Staten Island, as applicable shall notify the
26 board of such determination, together with such information, projections
27 or analyses relating thereto as the board may require, and shall submit
28 a modification to the financial plan reflecting such determination.
29 During a control period the board shall disapprove any such modification
30 unless it finds that (i) [the city's] such determination is supported by
31 information, projections and analyses which the board deems substantial-
32 ly accurate in all material respects and (ii) such events, in its judg-
33 ment, warrant such modification to the financial plan to avoid such
34 adverse impact on the delivery of essential services.
35 f. The city or the city of Staten Island may, from time to time,
36 submit financial plan modifications to each plan for review by the
37 board. During a control period the board shall approve such modifica-
38 tions unless it determines that such modifications would constitute
39 grounds for disapproval of the financial plan pursuant to paragraph c of
40 this subdivision, or if applicable, pursuant to paragraph e of this
41 subdivision.
42 g. Anything contained in this act to the contrary notwithstanding,
43 during a control period the board may at any time disapprove or after
44 consultation with the city or the city of Staten Island, as appropriate,
45 revise the revenue estimates (or any item thereof) prepared by the city
46 or the city of Staten Island in connection with the preparation of a
47 financial plan or any modification thereto and determined by the board
48 not to be based on assumptions and methods of estimation which are
49 reasonable and appropriate under the circumstances and in view of the
50 objectives and purposes of the act. The board may after consultation
51 with the city or the city of Staten Island, as appropriate, determine
52 the estimated revenues of the city or the city of Staten Island, as
53 appropriate, and the covered organizations provided, however, that any
54 revenues estimated by the board shall be based on reasonable and appro-
55 priate assumptions and methods of estimation.
S. 8578 226
1 4. Each financial plan shall be in such form and shall contain such
2 information for each year during which the financial plan is in effect
3 as the board may specify, and shall, in such detail as the board may
4 from time to time prescribe, include projections of all revenues,
5 expenditures and cash flows (including but not limited to projected
6 capital expenditures and debt issuances) and a schedule of projected
7 capital commitments of the city or the city of Staten Island, as appro-
8 priate, and except in such instances as the board may deem appropriate
9 each of the covered organizations. In addition, each financial plan and
10 financial plan modification shall include a statement of the significant
11 assumptions and methods of estimation used in arriving at the projec-
12 tions contained therein, set forth in such form and in such detail as
13 the board may from time to time prescribe.
14 5. The city and the covered organizations and during a control period
15 to the extent the board deems necessary or desirable to accomplish the
16 purposes of this act, the city of Staten Island shall promptly furnish
17 the board with any information which the board may request to satisfy
18 itself that (i) projected employment levels, collective bargaining
19 agreements and other action relating to employee costs, capital
20 construction and such other matters as the board may specify, are
21 consistent with the provisions made for such costs in the financial
22 plan, (ii) the city and the covered organizations or the city of Staten
23 Island, as appropriate are taking whatever action is necessary with
24 respect to programs mandated by state and federal law to ensure that
25 expenditures for such programs are limited to and covered by the expend-
26 itures stated in the financial plan, and (iii) adequate reserves are
27 provided to maintain programs mandated by state and federal law and for
28 which obligations are going to be incurred in the fiscal year and other
29 essential programs in the event revenues have been overestimated or
30 expenditures underestimated for any period.
31 6. For each financial plan and financial plan modification to be
32 prepared and submitted by the city to the board pursuant to the
33 provisions of this section, the covered organizations shall submit to
34 the city such information with respect to their projected expenditures,
35 revenues, cash flows and a schedule of projected capital commitments
36 for each year covered by such financial plan or modification as the city
37 shall determine. Notwithstanding any other provision of law limiting
38 the authority of the city with respect to any covered organization, the
39 city, in the preparation and submission of the financial plan and
40 modifications thereof, shall (except for debt service or for other
41 expenditures to the extent that such expenditures are required by law)
42 have the power to determine the aggregate expenditures to be allocated
43 to any covered organization in the financial plan and any modifications
44 thereto.
45 § 12-018. Section 9 of section 2 of chapter 868 of the laws of 1975,
46 constituting the New York state financial emergency act for the city of
47 New York, as amended by chapter 201 of the laws of 1978 and the section
48 heading and subdivisions 1 and 4 as amended by chapter 777 of the laws
49 of 1978, is amended to read as follows:
50 § 9. Establishment and application of the board fund. 1. There is
51 hereby established a fund designated the board fund. Commencing on
52 October twentieth, nineteen hundred seventy-five, and for the duration
53 of a control period, all revenues received or to be received by the city
54 or any covered organization and to the extent the board deems necessary
55 or desirable to accomplish the purposes of this act, the city of Staten
56 Island shall, unless exempted by order of the board, be revenues of the
S. 8578 227
1 board fund and shall be for the account of the city, the city of Staten
2 Island or the appropriate covered organizations, except (i) to the
3 extent expressly prohibited by federal law, (ii) where revenues of the
4 city are deposited in the general debt service fund, the TAN debt
5 service account or the RAN debt service account, or (iii) where such
6 revenues are pledged to the payment of any outstanding bonds, notes or
7 other obligations of covered organizations or state public authorities
8 as defined in section two hundred one of the civil service law.
9 Disbursement from the board fund shall be made by the board in accord-
10 ance with the approved financial plan except as provided in subdivision
11 five of this section nine. Commencing on October twentieth, nineteen
12 hundred seventy-five, and for the duration of a control period, all
13 funds and accounts established or thereafter established by the city,
14 the city of Staten Island or the covered organizations shall, unless
15 exempted by order of the board, thereafter be funds and accounts of the
16 board fund except to the extent expressly prohibited by federal law or
17 to the extent pledged by covenants or agreements relating to any
18 outstanding bonds, notes or other obligations of covered organizations
19 or public authorities as defined in section two hundred one of the civil
20 service law; and no monies or funds held in the general debt service
21 fund, the TAN debt service account or the RAN debt service account shall
22 be part of the board fund. All such accounts of the board shall have
23 such captions and entries as the board shall determine to be necessary
24 to credit the foregoing revenues and receipts to the board fund. The
25 monies of the fund shall not be deemed to be money of the state or money
26 under its control.
27 2. The deposit of revenues into the board fund and the investment or
28 deposit of monies therein shall be made in accordance with and pursuant
29 to procedures established by the board.
30 3. In order to assure compliance with the financial plan, the board
31 shall from time to time adopt procedures controlling the disbursement of
32 monies from the board fund. The board shall authorize the city or, if
33 applicable, the city of Staten Island to make all disbursements of
34 [city] such entity's revenues from the board fund, which disbursements
35 shall be made in accordance with the approved financial plan; provided,
36 that the board may withdraw such authorization if it determines that (a)
37 any disbursements made or to be made by the city or, if applicable, the
38 city of Staten Island have not been or are likely not to be in compli-
39 ance with the approved financial plan, (b) the city or, if applicable,
40 the city of Staten Island has violated any other provisions of this act,
41 or (c) the city has violated an agreement with any holder or guarantor
42 of bonds or notes issued by the city or a state financing agency.
43 4. Within the board fund there is hereby established a special
44 account designated the debt service repayment account. The board shall
45 from time to time direct, in accordance with procedures adopted by the
46 board, the deposit in the debt service repayment account of such amounts
47 as the board shall, in its discretion, determine to be sufficient to
48 meet the debt service requirements of the covered organizations on their
49 bonds and notes (other than bonds and notes of covered organizations
50 payable from revenues not included in the board fund) as they become
51 due. Amounts in the debt service repayment account shall be used to
52 meet such debt service requirements of the covered organizations.
53 5. If at any time the board determines that the amount then held in
54 the board fund or the amount estimated by the board to be held in the
55 board fund is or will be insufficient to meet the expenditures in the
56 amounts and at the times required by the financial plan, the board shall
S. 8578 228
1 require disbursements from the board fund to be made in the following
2 order or priority unless otherwise required by law of the United States
3 of America: (i) the payment of amounts from the appropriate account of
4 the board fund to the debt service repayment account, the general debt
5 service fund, the TAN debt service account and the RAN debt service
6 account, to maintain therein the amount required, to meet debt service
7 requirements of the city, the city of Staten Island, if appropriate and
8 the covered organizations on their bonds and notes as they may become
9 due, (ii) the payment of other liabilities having statutory or contrac-
10 tual priority over remaining liabilities of the city , the city of
11 Staten Island, if appropriate and the covered organizations whose monies
12 are included in the board fund, and (iii) the payment of other obli-
13 gations on an allocated basis as specified by the city or, the city of
14 Staten Island, if appropriate, for expenditures in accordance with the
15 financial plan provided that, in the event that the city or, the city of
16 Staten Island, if appropriate, fails to so specify, the board may with-
17 hold payment of any of such other obligations or may direct their
18 payment pro rata.
19 6. The board shall cause to be performed such pre-audit and post-au-
20 dit reviews of the board funds and disbursements therefrom as it may
21 determine.
22 § 12-019. Section 9-a of section 2 of chapter 868 of the laws of 1975,
23 constituting the New York state financial emergency act for the city of
24 New York, as added by chapter 201 of the laws of 1978, subdivisions 1,
25 2, 3, 4, 6, 7, 8, 9 and 11 as amended, subdivision 10 as renumbered and
26 amended and subdivision 12 as added by chapter 777 of the laws of 1978,
27 is amended to read as follows:
28 § 9-a. Establishment and application of a general debt service fund.
29 1. Commencing on the first day of the first full fiscal quarter subse-
30 quent to the first sale of a federally guaranteed city obligation, the
31 city shall establish a general debt service fund for the purpose of
32 paying debt service due or becoming due in the then current fiscal year
33 and in subsequent fiscal years until the later of (i) the termination
34 date of this act or (ii) the date when all general obligation bonds of
35 the city outstanding as of the establishment of the city of Staten
36 Island have been paid or payment therefor has been provided for in
37 accordance with their terms. All monies in the fund shall be held by
38 the comptroller, who shall administer and maintain the fund in accord-
39 ance with the provisions of this section.
40 2. All payments of or on account of real estate taxes or assessments
41 due to the city or the city of Staten Island, other than the proceeds of
42 tax anticipation notes, shall be immediately upon receipt deposited in
43 an account designated for the municipality to which payment was due
44 established in such fund. The comptroller shall retain, disburse and
45 apply monies in the fund during each month as follows:
46 a. During the first month of each fiscal quarter, there shall be
47 retained in the fund, subject to the provisions of subdivision three of
48 this section, all real estate tax payments deposited in the fund until
49 there shall have been retained from monies so deposited during such
50 month in the applicable account an amount equal to the total monthly
51 debt service, computed as of the date of any disbursement of money from
52 the fund, for the second and third months of such fiscal quarter;
53 provided that such amount shall be reduced by any amount already on
54 deposit in the fund which may be used to pay the monthly debt service
55 for such months.
S. 8578 229
1 Amounts to be on deposit in such accounts shall be determined as
2 follows: (i) with respect to the account of the city, debt service shall
3 include payments with respect to (a) all bonds and notes of the city
4 issued on or after the date of establishment of the city of Staten
5 Island and (b) all bonds or notes of the city prior thereto multiplied
6 by a fraction, the numerator of which is the total assessed valuation of
7 all taxable real property located in the city as of the date of such
8 establishment and the denominator of which is the total assessed valu-
9 ation of all taxable real property located in the city and the city of
10 Staten Island combined as of the date of such establishment and (ii)
11 with respect to the account of the city of Staten Island, debt service
12 shall include payments with respect to (a) all bonds or notes of the
13 city of Staten Island and (b) all bonds or notes of the city issued
14 prior to the establishment of the city of Staten Island multiplied by a
15 fraction, the numerator of which is the total assessed valuation of all
16 taxable real property located in the city of Staten Island as of the
17 date of such establishment and the denominator of which is the same as
18 in clause (b) of subparagraph (i) of this paragraph. To the extent
19 either account contains insufficient amounts to make payments on the
20 respective allocable portion of city bonds or notes issued prior to the
21 establishment of the city of Staten Island and such municipalities own
22 bonds or notes issued subsequent thereto, amounts on deposit in the
23 account of the other municipality in excess of the amounts required to
24 provide for payment of such latter municipality's own bonds or notes
25 issued subsequent to such establishment and allocable portion of city
26 bonds or notes issued prior thereto, shall be retained in such account
27 and applied to the payment of bonds or notes of the city issued prior to
28 such establishment to the extent of any insufficiency in such accounts.
29 For purposes of this section, fiscal quarter shall mean the three-
30 month period beginning July first, October first, January first or April
31 first, and monthly debt service shall mean, as of any date of computa-
32 tion, the amount of monies equal to the aggregate of (i) all interest
33 payable during such month on bonds and notes of the city or the city of
34 Staten Island, as applicable, plus (ii) the amount of principal (includ-
35 ing payments into sinking funds) maturing or otherwise coming due during
36 such month on all bonds of the city or the city of Staten Island, as
37 applicable, (excluding principal payments made from sinking funds
38 required by the terms of certain city or the city of Staten Island, as
39 applicable, bonds), plus (iii) the amount of principal to be paid on
40 notes of the city or the city of Staten Island, as applicable, during
41 such month from sources other than the proceeds of bonds or renewal
42 notes (exclusive of revenue anticipation notes and tax anticipation
43 notes or renewals thereof issued less than two years prior to the date
44 of computation).
45 b. During the second and third months of each fiscal quarter, there
46 shall be retained in the fund, subject to the provisions of subdivision
47 three of this section, all real estate tax payments deposited in the
48 fund until there shall have been retained from monies so deposited
49 during such month an amount equal to the total monthly debt service,
50 computed as of the date of any disbursement of monies from the fund, for
51 the first month of the next succeeding fiscal quarter; provided that
52 such amount shall be reduced by any amount already on deposit in the
53 fund which may be used to pay the monthly debt service for such month.
54 c. During any month of a fiscal quarter, after the retentions
55 required by paragraphs a and b of this subdivision have been made for
56 such month, the comptroller shall deposit any remaining balance of real
S. 8578 230
1 estate taxes received during such month, first into the TAN debt service
2 account to the extent required under subdivision six of this section,
3 and second into the board fund to be applied in accordance with proce-
4 dures of the board.
5 d. The city may at any time pay into the fund any monies required by
6 law to be used to pay monthly debt service and any other monies avail-
7 able for such purpose.
8 3. The board may approve, subject to agreements made with the holders
9 or guarantors of outstanding notes or bonds issued by or for the benefit
10 of the city after the effective date of this act, criteria for calculat-
11 ing a proportion of real estate tax receipts to be retained in the fund
12 in order to provide for the retention of amounts required by the
13 provisions of subdivision two of this section in lieu of the retention
14 of all initial receipts as required by such subdivision; provided, that
15 if the board at any time determines that retentions in the fund pursuant
16 to the provisions of such subdivision are or are likely to be insuffi-
17 cient to provide for the payment of monthly debt service when due, in
18 order to ensure that the amounts on deposit in the fund will be suffi-
19 cient to pay monthly debt service when due, the board shall require (i)
20 that real estate tax receipts be retained in the fund in greater amounts
21 or at earlier dates than the provisions of such subdivision require, or
22 (ii) that other revenues or cash resources of the city be paid into the
23 fund. The board shall consider the impact of earlier or larger
24 retention of real estate tax receipts on the city's seasonal borrowing
25 requirements when determining whether it shall require such additional
26 retention or that other revenues or cash resources of the city be paid
27 into the fund. Prior to the issuance by the city of any bonds or notes,
28 the board shall review any criteria then in effect which determine the
29 proportion of real estate tax receipts to be retained in the fund to
30 determine whether the proposed debt service schedule for such bonds or
31 notes is consistent with the monies which will be available therefor or
32 whether such criteria should be revised. The board shall from time to
33 time take such action as it determines is necessary, including disap-
34 proval of a proposed issue pursuant to paragraph f of subdivision one of
35 section seven, so that the monies in the fund shall be adequate to meet
36 debt service requirements.
37 4. Commencing on the first day of the second month of the first full
38 fiscal quarter subsequent to the first sale of a federally guaranteed
39 city obligation, the payment of monthly debt service shall be made,
40 first, from amounts retained in the fund. Amounts retained in the fund
41 shall be used only to pay debt service of the city.
42 5. Upon the issuance of any tax anticipation notes following the
43 effective date of this act, the comptroller shall establish and, so long
44 as any tax anticipation notes shall be outstanding, shall maintain a tax
45 anticipation note debt service account within the fund for the purpose
46 of paying the principal of tax anticipation notes.
47 6. The city shall determine the date on which the principal due or to
48 become due on an outstanding issue of tax anticipation notes shall equal
49 ninety percent of the available tax levy with respect to such issue, and
50 upon reasonable notice thereof the comptroller shall commence on such
51 date to pay into the TAN debt service account from collections of such
52 taxes and assessments, after retaining amounts required to be deposited
53 in the fund, amounts sufficient to pay when due, the principal of such
54 issue of tax anticipation notes. The payments of the principal of tax
55 anticipation notes shall be made, first, from amounts retained in the
56 TAN debt service account.
S. 8578 231
1 7. Upon the issuance of any revenue anticipation notes following the
2 effective date of this act, the comptroller shall establish and, so long
3 as any revenue anticipation notes shall be outstanding, shall maintain a
4 revenue anticipation note debt service account within the fund for the
5 purpose of paying the principal of revenue anticipation notes. Each
6 specific type of revenue in anticipation of which such notes are issued
7 and available for such purpose shall be deposited in such account imme-
8 diately upon receipt by the city. Where such revenue consists of state
9 aid or other revenue to be paid to the city by the comptroller, on the
10 date such revenue is payable to the city, the comptroller shall deposit
11 such revenue directly into such account in lieu of payment to the city.
12 All revenues deposited in the RAN debt service account shall be paid
13 immediately into the board fund except as otherwise provided in subdivi-
14 sion eight of this section.
15 8. The city shall determine the date on which the principal due or to
16 become due on an outstanding issue of revenue anticipation notes shall
17 equal ninety percent of the total amount of revenue against which such
18 notes were issued remaining to be paid to the city on or before the
19 fifth day prior to the maturity date of such notes and upon reasonable
20 notice thereof the comptroller shall commence on such date to retain in
21 the RAN debt service account from amounts deposited or to be deposited
22 therein of each specific type of revenue in anticipation of which reven-
23 ue such anticipation notes were issued, an amount sufficient to pay,
24 when due, the principal of such revenue anticipation notes. Monies
25 retained in such account shall vest immediately in the comptroller in
26 trust for the benefit of the holders of the revenue anticipation notes
27 in anticipation of which such notes were issued. No person having any
28 claim of any kind in tort, contract or otherwise against such city shall
29 have any right to or claim against any monies of the state appropriated
30 by the state and in anticipation of which such notes have been issued,
31 other than a claim for payment by the holders of such notes, and such
32 monies shall not be subject to any order, judgment, lien, execution,
33 attachment, setoff or counter-claim by any such person; provided, howev-
34 er, that nothing contained in this paragraph shall be construed to
35 limit, impair, impede or otherwise adversely affect in any manner the
36 rights or remedies of the purchasers and holders and owners of any bonds
37 or notes of the state or any agency, instrumentality, public benefit
38 corporation or political subdivision thereof, including the city of New
39 York, under which such purchasers and holders and owners have any right
40 of payment of such bonds or notes by recourse to state aid or local
41 assistance monies held by the state or for the payment of which bonds or
42 notes state aid or local assistance monies are a designated source. The
43 payment of the principal of revenue anticipation notes shall be made
44 first from amounts retained in the RAN debt service account.
45 9. Whenever the amount contained in the TAN debt service account or
46 the RAN debt service account exceeds the amount required to be retained
47 in such account such excess monies, including earnings on investments of
48 monies in the fund, shall be withdrawn from such account and paid into
49 the board fund.
50 10. Subject to agreements made with holders or guarantors of
51 outstanding notes or bonds issued by or for the benefit of the city
52 after the effective date of this act, the comptroller shall invest the
53 monies retained in the fund in accordance with law.
54 11. The limitations imposed upon the city by this section shall be in
55 addition to any limitations imposed upon the city or the city of Staten
56 Island under the local finance law. In the event any provisions of the
S. 8578 232
1 local finance law shall be inconsistent with the provisions of this
2 section, the provisions of this section shall prevail. The requirements
3 of this section shall not apply to any note of the city held by the
4 municipal assistance corporation for the city of New York to the extent
5 that such corporation has evidenced its intention not to present such
6 notes for payment during the fiscal year in which the determination is
7 made provided that such notes were held by such corporation on June
8 thirtieth, nineteen hundred seventy-eight or were issued in exchange for
9 or in refunding or renewal of notes held by such corporation on such
10 date.
11 12. Notwithstanding any other provision of this section, the city and
12 the city of Staten Island, if applicable, may, at any time, subject to
13 approval by the comptroller, designate a trust company or bank having
14 its principal place of business in the state of New York and having the
15 powers of a trust company in the state of New York to hold all or any
16 part of the monies in the fund and to administer and maintain the monies
17 so held in accordance with the applicable provisions of this section and
18 any agreements made pursuant thereto.
19 § 12-020. Section 11 of section 2 of chapter 868 of the laws of 1975,
20 constituting the New York state financial emergency act for the city of
21 New York, subdivisions 1 and 3 as amended by chapter 777 of the laws of
22 1978, is amended to read as follows:
23 § 11. Prohibitions; penalties. 1. During a control period, (i) no
24 officer or employee of the city or of any of the covered organizations
25 or to the extent the board deems necessary or desirable to accomplish
26 the purposes of this act, the city of Staten Island shall make or
27 authorize an obligation or other liability in excess of the amount
28 available therefor under the financial plan as then in effect; (ii) no
29 officer or employee of the city or of any of the covered organizations
30 or the city of Staten Island shall involve the city, the city of Staten
31 Island, if applicable or any of the covered organizations in any
32 contract or other obligation or liability for the payment of money for
33 any purpose required to be approved by the board unless such contract,
34 obligation or liability has been so approved or deemed to be approved as
35 provided in paragraphs e and f of subdivision one of section seven and
36 unless such contract or obligation or liability is in compliance with
37 the financial plan as then in effect.
38 2. No officer or employee of the city or any of the covered organiza-
39 tions, or, the city of Staten Island, if applicable, shall take any
40 action in violation of any valid order of the board or shall fail or
41 refuse to take any action required by any such order or shall prepare,
42 present or certify any information (including any projections or esti-
43 mates) or report for the board or any of its agents that is false or
44 misleading, or, upon learning that any such information is false or
45 misleading, shall fail promptly to advise the board or its agents there-
46 of.
47 3. In addition to any penalty or liability under other law, any offi-
48 cer or employee of the city or any of the covered organizations, or, the
49 city of Staten Island, if applicable, who shall knowingly and willfully
50 violate subdivision one or two of this section shall be subject to
51 appropriate administrative discipline, including, when circumstances
52 warrant, suspension from duty without pay or removal from office by
53 order of either the governor or the mayor or the mayor of the city of
54 Staten Island, if applicable, and shall, upon conviction, be guilty of a
55 misdemeanor.
S. 8578 233
1 4. In the case of a violation of subdivision one or two of this
2 section by an officer or employee of the city, or, the city of Staten
3 Island, if applicable, or any of the covered organizations, the mayor or
4 the mayor of the city of Staten Island, if applicable, or the chief
5 executive officer of such covered organization shall immediately report
6 to the board all pertinent facts together with a statement of the action
7 taken thereon.
8 § 13-001. Section 25-a of the general city law is amended by adding a
9 new undesignated paragraph to read as follows:
10 For the purposes of this article, a city which is incorporated on or
11 after the first of January next succeeding the date on which this para-
12 graph shall have become a law and which is comprised of a geographical
13 area which on the date immediately prior to such incorporation had been
14 wholly contained within a city with a population of one million or more
15 shall continue to be treated as a city with a population of one million
16 or more.
17 § 13-002. Section 25-w of the general city law is amended by adding a
18 new subdivision (g) to read as follows:
19 (g) For the purposes of this article, a city which is incorporated on
20 or after the first of January next succeeding the date on which this
21 subdivision shall have become a law and which is comprised of a
22 geographical area which on the date immediately prior to such incorpo-
23 ration had been wholly contained within a city with a population of one
24 million or more shall continue to be treated as a city with a population
25 of one million or more.
26 § 13-003. Section 1 of chapter 772 of the laws of 1966 relating to
27 imposition of a city business tax is amended by adding a new undesig-
28 nated paragraph to read as follows:
29 For the purposes of this section, a city which is incorporated on or
30 after the first of January next succeeding the date on which this para-
31 graph shall have become a law and which is comprised of a geographical
32 area which on the date immediately prior to such incorporation had been
33 wholly contained within a city with a population of one million or more
34 shall continue to be treated as a city with a population of one million
35 or more.
36 § 13-004. Section 2 of chapter 772 of the laws of 1966 relating to
37 imposition of a city business tax is amended by adding a new undesig-
38 nated paragraph to read as follows:
39 For the purposes of this section, a city which is incorporated on or
40 after the first of January next succeeding the date on which this para-
41 graph shall have become a law and which is comprised of a geographical
42 area which on the date immediately prior to such incorporation had been
43 wholly contained within a city with a population of one million or more
44 shall continue to be treated as a city with a population of one million
45 or more.
46 § 13-005. Section 1301 of the tax law is amended by adding a new
47 subsection (f) to read as follows:
48 (f) For the purposes of this article, a city which is incorporated on
49 or after the first of January next succeeding the date on which this
50 subsection shall have become a law and which is comprised of a geograph-
51 ical area which on the date immediately prior to such incorporation had
52 been wholly contained within a city with a population of one million or
53 more shall continue to be treated as a city with a population of one
54 million or more.
55 § 14-001. The administrative code of the city of Staten Island is
56 enacted to read as follows:
S. 8578 234
1 Title 6 - General Services and Contracting
2 § 6-101 Definitions. As used in this title:
3 1. "Commissioner" shall mean the commissioner of the department of
4 general services and contracting.
5 2. "Department" shall mean the department of general services and
6 contracting.
7 § 6-102 Commissioner. The head of the department shall be the commis-
8 sioner.
9 § 6-103 Powers and duties. The commissioner shall have the power and
10 it shall be his or her duty to perform all the functions and operations
11 of the city of Staten Island relating to the construction, maintenance
12 and care of public buildings and facilities; the procurement of goods
13 and other personal property; the disposition of surplus property; the
14 providing to city agencies of services other than personal services; the
15 acquisition, disposition and management by the city of real property
16 other than housing; the providing of automotive, communication, energy
17 and data processing services including without limitation:
18 1. Procurement of goods, other personal property and services. With
19 respect to the procurement and disposal of goods and other personal
20 property and the procurement of services other than personal services,
21 the commissioner shall have the following power and duties:
22 (a) to purchase, inspect, store and distribute all goods, supplies,
23 materials, equipment and other personal property required by any city
24 agency, except as otherwise provided by law, or by any office of any
25 county wholly included in the city for which supplies, materials or
26 equipment are required, payment for which is made from the city treas-
27 ury;
28 (b) to establish and maintain one or more city storehouses, operating
29 therein a modern system of stores control to supply the estimated
30 current needs of the agencies for which the commissioner is authorized
31 to purchase. All purchases other than such purchases for stock for
32 estimated needs and all deliveries from such stock shall be upon justi-
33 fied requisitions. The commissioner shall also oversee the establish-
34 ment of efficient and economical systems of stores control in other city
35 agencies and review the operations of such storehouses to assure their
36 efficient and economical management;
37 (c) to receive all surplus and obsolete personal property not required
38 by any agency for which the commissioner has the power to make purchases
39 and all such agencies shall surrender such property to the commissioner
40 who shall dispose thereof pursuant to rules promulgated by him or her
41 governing its redistribution, exchange, transfer, sale or other disposi-
42 tion;
43 (d) to procure, supply and manage contractual services other than
44 personal or professional services for the use of city agencies;
45 (e) to promulgate rules governing the purchase, payment, storage, and
46 delivery of goods, supplies, materials and equipment by agencies of the
47 city and the disposal of surplus and obsolete materials, and to super-
48 vise their enforcement; and
49 (f) to classify all goods, supplies, materials and equipment.
50 2. Energy; gas and electricity. The commissioner shall have charge and
51 control of furnishing the city or any part thereof, by contract or
52 otherwise, with gas, electricity, steam, hot water or other energy
53 source, except such functions as are exercised by the public utility
54 service of the city.
55 3. Data processing services; information technology and telecommuni-
56 cations. (a) For purposes of this title "telecommunications" shall mean
S. 8578 235
1 transmission of writings, signals, pictures, numbers and sounds or
2 intelligence of all kinds by and of wire, cable, optical fiber, radio,
3 satellite, electromagnetic wave, microwave or other like connection
4 between points of origin and reception of such transmission, including
5 all instrumentalities, facilities, apparatus and services incidental to
6 such transmission.
7 (b) The commissioner shall provide data processing support, program-
8 ming, and computer systems analysis services for city agencies when
9 necessary or desirable, in accordance with executive orders promulgated
10 by the mayor.
11 (c) In addition, the commissioner shall have further powers and
12 duties:
13 (i) to plan, formulate, coordinate and advance information technology
14 and telecommunications policy for the city;
15 (ii) to develop, maintain and implement a long range telecommuni-
16 cations strategy;
17 (iii) to administer, subject to the approval of the council where
18 applicable, all franchises and revocable consents relating to telecommu-
19 nications including without limitation, proposing authorizing resol-
20 utions for telecommunications, franchises, developing and issuing
21 requests for proposals or other solicitations of proposals for telecom-
22 munications franchises, selecting telecommunications franchises, review-
23 ing and approving petitions for revocable consents relating to telecom-
24 munications, negotiating the terms of contracts or other agreements
25 relating to telecommunications franchises and revocable consents,
26 enforcing the terms and conditions of such agreements;
27 (iv) to develop municipal uses of cable television and coordinate
28 interagency uses of cable television and other telecommunications;
29 (v) to ensure that priority is given on at least one municipal channel
30 to the cable casting of the public proceedings of the council and its
31 committees, the city planning commission and other state and city agen-
32 cies;
33 (vi) to provide to city agencies such land-based and wireless voice,
34 data, video or other communication facilities, and technical assistance
35 or other assistance with respect to such facilities, as they may require
36 for the effective discharge of their responsibilities;
37 (vii) to participate in developing, maintaining and implementing a
38 long-range computer system and data communications strategy for the
39 city;
40 (viii) to assist in providing interagency coordination on matters
41 related to data communications activities and interfacing of computers;
42 (ix) to provide appropriate, reliable, cost-effective and responsive
43 computer and data communications services to agencies that require such
44 services by purchasing and maintaining hardware, software and such other
45 goods and services as may be necessary to effectively discharge the
46 powers and duties of the department;
47 (x) to provide assistance to agencies in meeting their data processing
48 and data communications objectives;
49 (xi) to provide agencies using or proposing to use the services of
50 this department with technical assistance in determining feasibility and
51 resource requirements;
52 (xii) to simplify access to shared information, reduce communication
53 costs and provide access to multiple computer systems by connecting
54 computers and terminals of various city agencies, and of other public
55 entities requesting such connection where such provision to such other
S. 8578 236
1 entities would in the judgment of the commissioner be in the city's
2 interests;
3 (xiii) to plan and provide telecommunications coordination in support
4 of disaster recovery;
5 (xiv) to ensure security for data and other information handled by
6 this department;
7 (xv) to institute procedures to assure restrictions of access to
8 information to the appropriate individuals, where such restrictions are
9 required by law; and
10 (xvi) to perform such other responsibilities with respect to informa-
11 tion technology and telecommunications matters, including responsibil-
12 ities delegated elsewhere by the code, as the mayor shall direct.
13 4. Automotive services. The commissioner shall acquire by purchase,
14 lease or otherwise, vehicles and other automotive equipment for the use
15 of city agencies; manage, maintain, store and operate a fleet of motor
16 vehicles; assign fleets to agencies in accordance with the direction of
17 the mayor and ensure the effective operation of all shops, yards,
18 garages, fuel depots and other facilities required for the maintenance
19 of fleets operated by agencies; and ensure the maintenance of records
20 for all city owned vehicles.
21 5. Right of entry. The commissioner, officers and employees of the
22 department may, in accordance with law, enter upon public or private
23 property for the purpose of making surveys, borings or other investi-
24 gations necessary for the exercise of powers or the performance of the
25 duties of the commissioner and the department. Refusal to permit such
26 entry shall be a misdemeanor punishable by not more than thirty days
27 imprisonment or by a fine of not more than $50.00, or both.
28 § 6-104 Emergency communications systems of other agencies. With
29 respect to emergency communications systems and emergency communications
30 facilities administered by another agency or another municipality, the
31 department shall exercise its powers and duties only as the mayor shall
32 direct or at the request of such agency.
33 § 6-105 Records and information services. Within the department there
34 shall be a division of records and information services which shall
35 include, but not be limited to, municipal archives, a municipal refer-
36 ence and research center and a municipal records management division.
37 1. The division shall be responsible for the maintenance, access to
38 and preservation of records of the city. In addition, the division shall
39 develop and promulgate standards and procedures to effectively perform
40 those duties.
41 The division shall provide appropriate information and assistance to
42 the mayor and to members of the council. It shall also provide, within
43 reasonable limits, access to the public to records, books and documents
44 within its care and control.
45 2. The division is authorized to arrange for the exchange, sale,
46 purchase and loan of information materials from and with legislative
47 research services, libraries and institutions in other municipalities,
48 governmental bodies and public authorities.
49 3. The division shall:
50 (a) provide for the distribution of publications of the city, where
51 such authority is not vested in another city agency, and issue at regu-
52 lar intervals, no less than quarterly, a bulletin describing its facili-
53 ties and resources;
54 (b) institute actions in replevin to recover any historical and/or
55 other documents properly owned by, or originating from, the county of
56 Richmond prior to the creation of the preceding municipality;
S. 8578 237
1 (c) report annually by the thirtieth of September to the mayor, and
2 council on the powers and duties herein-mentioned including, but not
3 limited to, the cost of savings effectuated by the division during the
4 preceding fiscal year.
5 § 6-106 Departmental libraries. The commissioner shall analyze the
6 needs of each city agency, except the law department, with respect to
7 the establishment and maintenance of any library or research facility
8 therein, and make such recommendations as may be appropriate in the
9 circumstances. Any libraries or research facilities so established
10 shall, among any of its other duties, be responsible for the mainte-
11 nance, access to and preservation of records within its care and
12 control.
13 Title 7 - Legal Affairs
14 § 7-102 Department; corporation counsel. 1. There shall be a law
15 department the head of which shall be the corporation counsel.
16 2. The first assistant corporation counsel, appointed by the corpo-
17 ration counsel, during absence, disability or the vacancy of the office
18 of the corporation counsel, shall assume all powers and perform all
19 duties of the corporation counsel and shall act as corporation counsel
20 until a new appointment is made.
21 3. The corporation counsel may empower, by written authority filed
22 and remaining on record in the department, any of the assistants to
23 perform certain duties of the corporation counsel.
24 § 7-103 Powers and duties. The corporation counsel shall:
25 1. be attorney and counsel for the city and every agency thereof and
26 shall have charge of and conduct all the law business of the city and
27 its agencies;
28 2. have charge of and conduct the legal proceedings necessary in open-
29 ing, widening, altering and closing streets and in acquiring real estate
30 or in city condemnation proceedings;
31 3. have charge of and conduct the preparation of all leases, deeds,
32 contracts, bonds and all other legal papers for the city or connected
33 agency or officer thereof; and the corporation counsel shall approve the
34 form of all such deeds, bonds, contracts, leases and legal papers;
35 4. have the right to institute actions in law or equity to maintain,
36 defend and establish the rights, interests, revenues, property, privi-
37 leges, franchises or demands of the city or the people thereof, and to
38 collect any money, debts, fines or penalties or enforce the laws;
39 5. not be empowered to compromise, settle or adjust any rights,
40 claims, demands or causes of action in favor of or against the city, to
41 offer or confess judgment against the city or accept any offer of judg-
42 ment in favor of the city without the approval of the comptroller; and
43 6. have the authority to assign one or more assistants to any agency;
44 and the head of each agency may employ staff counsel to assist in legal
45 affairs of the agency.
46 § 7-104 Legal authority. 1. All actions and proceedings for the
47 recovery of penalties for the violation of any law shall be brought in
48 the name of the city and not in that of any agency.
49 2. The mayor may delegate to any agency, after consultation with the
50 corporation counsel and head of the agency, responsibility for the
51 conduct of routine legal affairs of the agency.
52 3. The mayor may assign or transfer attorneys from the law department
53 of the agency to assist in such delegated functions.
54 4. The corporation counsel shall monitor and evaluate on a regular
55 basis the exercise of authority delegated.
S. 8578 238
1 5. The mayor, upon recommendation of the corporation counsel, may
2 suspend or withdraw any delegated authority whenever in his or her judg-
3 ment the interests of the city justify such action.
4 § 7-105 City sheriff; powers and duties. 1. There shall be a city
5 sheriff who shall be appointed by the mayor.
6 2. Except as otherwise provided by law, the functions, powers and
7 duties formerly exercised by the sheriff of the preceding municipality
8 as of the date of establishment of the city of Staten Island shall
9 remain with the city sheriff.
10 § 7-106 City clerk; powers and duties. The city clerk shall:
11 1. be the chief archivist of the city and shall advise the mayor and
12 council on those matters concerning the preservation of the city's
13 historical documentation;
14 2. act as the chief reference and research librarian for the mayor and
15 council and shall ensure that all significant materials pertaining to
16 operations of the city be preserved and readily available for use;
17 3. act as the chief public records officer for the mayor and council
18 and shall, except as otherwise provided by law, establish standards for
19 the proper records management in any agency or government instrumentali-
20 ty funded in whole or in part from local tax levy monies; and
21 4. have the power formerly exercised or delegate any of the functions
22 and duties vested in such city clerk by law of the preceding munici-
23 pality as it existed on the date of establishment.
24 Title 8 - Reserved
25 Title 9 - Criminal Justice
26 Chapter 1
27 Department of Corrections
28 § 9-101 Definitions. As used in this title:
29 1. "Commissioner" shall mean the commissioner of the department of
30 corrections.
31 2. "Department" shall mean the department of corrections.
32 3. "Division" shall mean the division of juvenile justice.
33 § 9-102 Commissioner. The head of the department shall be the commis-
34 sioner of corrections.
35 § 9-103 Powers and duties of commissioner. 1. The commissioner shall
36 have:
37 a. charge and management of all institutions of the city (including
38 all hospital wards) for the care and custody of felons; misdemeanants;
39 all prisoners under arrest and waiting arraignment (including those who
40 require hospital care and/or psychiatric observation or treatment);
41 violators of ordinances or local laws and for the detention of any
42 witnesses who are unable to furnish security for their appearance in
43 criminal proceedings;
44 b. sole power and authority concerning the care, custody and control
45 of all court pens for the detention of prisoners while in custody of the
46 state of New York within the city of Staten Island, the family court of
47 the state of New York, the supreme court in the county of Richmond and
48 of all vehicles employed in the transportation of prisoners who have
49 been sentenced, are awaiting trial or being held for other cause;
50 c. charge and management of persons or any other institution of the
51 city placed under his or her jurisdiction;
S. 8578 239
1 d. all authority concerning the care and custody of felons, misdemean-
2 ants or violators of local laws held in institutions under his or her
3 jurisdiction;
4 e. all authority in relation to the custody and transportation of
5 persons held for any criminal proceedings, all prisoners under arrest
6 and waiting arraignment (including those requiring hospital care and/or
7 psychiatric treatment) in the city; and
8 f. supervision and responsibility for the planning and implementation
9 of re-training, counseling, and rehabilitative programs for felons,
10 misdemeanants and violators of local laws who are held in institutions
11 under his or her charge.
12 2. The commissioner shall maintain and operate buildings and struc-
13 tures under his or her jurisdiction and may construct additions and make
14 repairs to such buildings by use of the labor of persons under his or
15 her care and custody.
16 § 9-104 Labor of prisoners. 1. Every inmate of an institution under
17 the authority of the commissioner shall be employed in some form of
18 industry, farming operations or other employment and any products there-
19 of shall be utilized in the institutions under the commissioner's juris-
20 diction.
21 2. Any persons held for trial may be employed in the same manner as
22 sentenced prisoners; however, such sentenced prisoners must give their
23 consent in writing.
24 3. Inmates and/or prisoners held for trial may be detailed by the
25 commissioner to perform work or service on the grounds, buildings, or on
26 any public improvement under the charge of any other agency.
27 Chapter 2
28 Division of Juvenile Justice
29 § 9-201 The division of juvenile justice; director. 1. There shall be
30 within the department of corrections a division of juvenile justice.
31 2. The head of the division shall be the director of juvenile justice.
32 § 9-202 Powers and duties of director. The director shall:
33 1. establish, initiate, control, maintain and operate secure and non-
34 secure facilities for the temporary care and maintenance of children
35 alleged to be or adjudicated as juvenile delinquents.
36 2. have the power to contract with other public and private agencies
37 for services in order to ensure adequate, suitable and accessible accom-
38 modations and that proper care will be available when required for
39 detention.
40 3. establish regulations for the operation of secure and non-secure
41 detention facilities and shall provide or secure the availability of
42 accessible and adequate non-secure detention facilities certified by
43 the state division of youth.
44 4. develop, implement and maintain systems to collect, store and
45 disseminate information concerning juvenile delinquency, juvenile crime
46 and the juvenile justice system.
47 5. participate with other city agencies in development, implementation
48 and maintenance of juvenile justice information.
49 Title 10 - Reserved
50 TITLE 11
51 TAXATION AND FINANCE
52 CHAPTER 1
53 DEPARTMENT OF FINANCE
S. 8578 240
1 § 11-001 Definitions and applicability. Any terms in this title refer-
2 ring to a governmental entity of the preceding municipality shall be
3 deemed to refer to such entity of the preceding municipality or its
4 successor entity under the city of Staten Island. Any action taken in
5 compliance with the provisions of this title prior to the incorporation
6 of the city of Staten Island shall be deemed to comply with the require-
7 ments of this title. For the purposes of this title, the term preceding
8 municipality shall mean the city government for the geographical area of
9 the city of Staten Island which existed immediately prior to the incor-
10 poration of the city of Staten Island.
11 § 11-101 Power of department of finance to adopt a seal. The depart-
12 ment of finance is authorized to adopt a seal.
13 § 11-102 Finance department; records; copies when in evidence. A
14 copy of any paper, record, book, document or map, filed in the depart-
15 ment of finance, or the minutes, records or proceedings, or any portion
16 thereof, of any board or commission of which the commissioner of
17 finance, is or may become a member, when certified by the commissioner
18 of finance, or a deputy commissioner of finance, to be a correct copy of
19 the original, shall be admissible in evidence in any trial, investi-
20 gation, hearing or proceeding in any court, or before any commissioner,
21 board or tribunal, with the same force and effect as the original.
22 Whenever a subpoena is served upon the commissioner of finance, or any
23 member of a board or commission of which the commissioner of finance is
24 a member, or upon any officer or employee of the department of finance,
25 or upon any officer or employee of such boards or commissions, requiring
26 the production upon any trial or hearing of an original paper, document,
27 book, map, record, minutes or proceedings, the commissioner of finance,
28 in his or her discretion, may furnish a copy certified as herein
29 provided, unless the subpoena be accompanied by an order of the court or
30 other tribunal before which trial or hearing is had requiring the
31 production of such original.
32 § 11-102.1 Authorization to require identifying numbers. a. The
33 commissioner of finance in the proper discharge of his or her duties in
34 the administration and collection of taxes, assessments, arrears or
35 other charges payable to the city may require any person to furnish such
36 identifying number as the commissioner may prescribe for securing proper
37 identification of such person including, but not limited to, a social
38 security account number or federal employer identification number.
39 b. Any person who fails to supply such identifying number within thir-
40 ty days after written demand therefor shall be liable for a civil penal-
41 ty of not more than one thousand dollars. Upon application in writing
42 and for good cause shown, the commissioner of finance may extend the
43 time for compliance with such written demand.
44 c. The civil penalty prescribed by this section shall be recovered by
45 the corporation counsel in an action or proceeding in any court of
46 competent jurisdiction. In addition, the corporation counsel may insti-
47 tute any other action or proceeding in any court of competent jurisdic-
48 tion that may be appropriate or necessary for the enforcement of the
49 provisions of this section.
50 § 11-103 Bond of commissioner of finance. The commissioner of
51 finance, within ten days after receiving notice of his or her appoint-
52 ment and before such commissioner enters upon his or her office, shall
53 give a bond to the city and to the people of the state of New York in
54 the sum of three hundred thousand dollars, with not less than four
55 sufficient sureties to be approved by the comptroller, conditioned that
56 he or she will faithfully discharge the duties of the commissioner's
S. 8578 241
1 office and all trusts imposed on him or her by law in virtue of the
2 commissioner's office, including all duties in connection with the tax
3 on mortgages as prescribed by article eleven of the tax law. Such bond
4 shall be deemed to extend to the faithful execution of the duties of the
5 office until a new appointment shall be made and confirmed, and the
6 person so appointed enters upon the performance of the commissioner's
7 duties. In case of any official misconduct or default on the part of
8 such commissioner of finance, or his or her subordinates, an action upon
9 such bond may be begun and prosecuted to judgment by the city, which,
10 after first paying therefrom the expenses of the litigation, shall cause
11 the proceeds of such judgment to be distributed as shall be lawful and
12 equitable among the persons and objects injured or defrauded by such
13 official misconduct or default of the commissioner of finance or any of
14 his or her subordinates.
15 § 11-104 Commissioner of finance to keep accounts. a. The commission-
16 er of finance shall keep books showing the receipts of moneys from all
17 sources, and designating the sources of same, and also showing the
18 amounts paid from time to time on account of the several appropriations,
19 the forms of which shall be prescribed by the comptroller.
20 b. The city collector or the deputy collector in receiving moneys
21 payable to the city, from whatever source derived, shall not issue a
22 receipt to the payor for a payment made by personal, business or corpo-
23 rate check unless specifically requested.
24 § 11-105 Agreements with financing agencies or card issuers; payment
25 of fines, civil penalties, taxes, fees, rates, rent, charges or other
26 amounts by credit card. 1. As used in this section, the following terms
27 shall have the following meanings:
28 a. "Card issuer" shall mean an issuer of a credit card, charge card or
29 other value transfer device.
30 b. "Credit card" means any credit card, credit plate, charge card,
31 charge plate, courtesy card, debit card or other identification card or
32 device issued by a person to another person which may be used to obtain
33 a cash advance or a loan or credit, or to purchase or lease property or
34 services on the credit of the person issuing the credit card or a person
35 who has agreed with the issuer to pay obligations arising from the use
36 of a credit card issued another person.
37 c. "Financing agency" means a person engaged, in whole or in part, in
38 the business of purchasing retail installment contracts, obligations or
39 credit agreements or indebtedness of buyers under credit agreements from
40 one or more retail sellers or entering into credit agreements with
41 retail buyers but shall not include a retail seller. The term includes
42 but is not limited to a bank, trust company, private banker, industrial
43 bank or investment company, if so engaged, but shall not include a
44 retail seller.
45 d. "Person" means an individual, partnership, corporation or any other
46 legal or commercial entity.
47 2. The city may enter into agreements with one or more financing agen-
48 cies or card issuers to provide for the acceptance by the city of credit
49 cards as an alternate means of payment of fines, civil penalties, taxes,
50 fees, rent, rates, charges or other amounts owed by a person to the
51 city. Any such agreement shall govern the terms and conditions upon
52 which a credit card proffered as a means of payment of a fine, civil
53 penalty, tax, fee, rent, rate, charge or other amount shall be accepted
54 or declined and the manner in and conditions upon which the financing
55 agency or card issuer shall pay to the city the amount of fines, civil
56 penalties, taxes, fees, rent, rates, charges or other amounts paid by
S. 8578 242
1 means of credit cards pursuant to such agreement. Any such agreement may
2 provide for the payment by the city to such financing agency or card
3 issuer of fees for the services rendered by such financing agency or
4 card issuer pursuant to such agreement, which fees may consist of a
5 discount deducted from or payable in respect of the amount of each such
6 fine, civil penalty, tax, fee, rent, rate, charge or other amount or
7 otherwise as the agreement may provide.
8 3. Notwithstanding any other provision of law to the contrary, any
9 agency or department of the city which, pursuant to an agreement entered
10 into under this section, accepts credit cards as a means of payment of
11 fines, civil penalties, taxes, fees, rent, rates, charges or other
12 amounts owed by a person to the city shall be authorized to charge and
13 collect from any person offering a credit card as a means of payment of
14 a fine a reasonable and uniform fee as a condition of accepting such
15 credit card in payment of a fine, civil penalty, tax, fee, rent, rate,
16 charge or other amount. Such fee shall not exceed the cost incurred by
17 the agency or department in connection with such credit card trans-
18 action, which cost shall include any fee payable by the city to the
19 financing agency.
20 § 11-106 Weekly reports by commissioner of finance to mayor and comp-
21 troller. The commissioner of finance shall report weekly in writing to
22 the mayor and to the comptroller all moneys received by the commission-
23 er, the amount of all warrants paid by him or her since the commission-
24 er's last report, and the amount remaining to the credit of the city.
25 § 11-107 Report to comptroller. The commissioner of finance, when
26 required by the comptroller, shall furnish to him or her such informa-
27 tion as the comptroller may demand in relation to the finances of the
28 city, within such reasonable time as the commissioner may direct.
29 § 11-108 Rules in signing warrants. No warrant shall be signed by
30 the comptroller or countersigned by the commissioner of finance, except
31 upon vouchers for the expenditures of the amount named therein, duly
32 prepared and audited according to the methods prescribed by the comp-
33 troller, and filed with the comptroller, except in the case of judg-
34 ments, in which case a transcript thereof shall be filed.
35 § 11-109 Commissioner of finance to exhibit bank book. The commis-
36 sioner of finance shall exhibit his or her bank book to the comptroller
37 on the first Tuesday of every month and more often when required.
38 § 11-110 When commissioner of finance to close accounts. The accounts
39 of the commissioner of finance shall be annually closed on the last day
40 of June.
41 § 11-111 Withdrawal of moneys by heads of agencies. Notwithstanding
42 any provision of the charter, any city treasury or sinking fund moneys
43 which have been duly withdrawn from any bank or trust company upon prop-
44 er warrant and check to the order of the head or heads of any agency or
45 agencies may be redeposited by such head or heads of such agency or
46 agencies in a properly designated deposit bank and thereafter such rede-
47 posited moneys may be withdrawn upon check signed by him or her or them
48 without additional warrant.
49 § 11-112 Authorization of subordinates to sign checks and warrants.
50 Notwithstanding any provision of the charter, the comptroller or commis-
51 sioner of finance may designate and authorize any deputies, assistant
52 deputies, or employees to sign, each in his or her own name and in place
53 of and for the comptroller or commissioner of finance, respectively, any
54 or all checks or warrants, including those issued against sinking fund
55 and trust fund bank accounts. A warrant or check so signed shall be of
56 the same force and effect as if signed by the comptroller or commission-
S. 8578 243
1 er of finance, respectively. The designation or designations of depu-
2 ties shall be made in writing in the manner set forth in section nine-
3 ty-four of the charter of the preceding municipality as it existed
4 January first, nineteen hundred ninety-four. The designation or desig-
5 nations of assistant deputies or employees shall be in writing, signed
6 in duplicate by the comptroller or the commissioner of finance, respec-
7 tively, and shall be duly filed and remain of record in the office of
8 the comptroller and the department of finance. The period for which
9 each such designation of deputies, assistant deputies and employees
10 shall continue in force shall be specified therein and may be terminated
11 by the comptroller or commissioner of finance, respectively, at any time
12 by filing in the same office or offices in which the designation has
13 been filed a written notice of such termination signed by the comp-
14 troller or commissioner of finance, respectively.
15 § 11-113 Acceptance of facsimile signatures by banks or trust compa-
16 nies. Notwithstanding any provision of the charter, checks drawn upon
17 any bank or trust company for payment of payrolls or disbursements for
18 relief, required to be signed by the head of an agency or his or her
19 authorized designee, may be signed by the facsimile signature or signa-
20 tures of the person or persons authorized to sign such checks, if the
21 head of such agency so authorizes by an instrument in writing signed by
22 the head of such agency and filed with the comptroller; and, in such
23 event, any bank or trust company shall, acting in good faith and without
24 notice of any defect or invalidity, be authorized to pay and be
25 protected in paying any checks bearing or purporting to bear the facsim-
26 ile signature or signatures of the person or persons duly authorized to
27 sign such checks, regardless of the person by whom or the means by which
28 the actual or purported facsimile signature or signatures thereon may
29 have been affixed thereto, if such facsimile signature or signatures
30 closely resemble the facsimile specimens from time to time filed with
31 such banks or trust companies by the head of the agency in question;
32 provided, however, that nothing herein contained shall release such bank
33 or trust company from any liability arising from any cause or fact other
34 than the fact that such facsimile signature is not a genuine facsimile
35 signature affixed with appropriate authority.
36 § 11-115 City collector; appointment; bond. The mayor shall appoint
37 the city collector. The city collector, before entering upon the duties
38 of his or her office, shall enter into a bond to the city of Staten
39 Island to be approved by the commissioner of finance and comptroller in
40 the penal sum of twenty-five thousand dollars, which bond shall be
41 conditioned for the faithful performance of the duties of the office by
42 the officer giving such bond. Such bond shall be a lien on all the real
43 estate held by the collector executing the same, or any surety thereto,
44 in the city at the time of the filing thereof, unless there be named and
45 described in or on any such bond, real estate in such city equal in
46 value to the amount of such bond and owned by a surety, in which case
47 the bond shall be a lien on such real estate so described and upon all
48 the real estate of such city collector, and no other, and shall continue
49 to be such lien until the condition, together with all costs and charges
50 which may accrue by the prosecution thereof, shall be fully satisfied,
51 or until such lien be released, not to exceed, however, the period of
52 ten years after the time when the officer who has given such bond shall
53 have ceased to hold his or her office, unless an action thereon has been
54 commenced and shall then be pending.
55 § 11-116 Deputies to give bond; duties. The city collector shall
56 take from each deputy a bond, in such penal sum and with such sureties
S. 8578 244
1 as may be approved by the city collector and by the comptroller and
2 commissioner of finance, which bond shall run to the city collector, the
3 city and to whom it may concern, and shall be conditioned for the faith-
4 ful performance of the duties of such deputy. Each bond taken in
5 pursuance of the provisions of this section shall be filed with the
6 comptroller. Each deputy collector shall have all the powers and be
7 subject to all the duties of the city collector in respect to the
8 collection and receipt of taxes, assessments, water rents and arrears.
9 § 11-117 Renewal of bond. If at any time during the continuance in
10 office of the city collector or deputy collectors the comptroller or
11 commissioner of finance shall deem any surety of them to be insuffi-
12 cient, he or she may require the city collector or deputy collectors to
13 enter into a new bond to be approved in like manner as prescribed in
14 section 11-115 of this chapter, within such time as the comptroller may
15 direct, not being less than ten days after requiring such new bond to be
16 given. In case of the neglect or refusal of any such officer to furnish
17 such bond within the time so directed, the comptroller or commissioner
18 of finance may declare his or her office vacant.
19 § 11-118 Bureau of city collections; duties. The duties of the bureau
20 of city collections shall also include the collection of water rents,
21 charges, fines and penalties in connection with the water supply,
22 including arrears, sewer rents, sewer surcharges, charges, fines and
23 penalties in connection with the sewer system as defined in sections
24 24-514 and 24-523 of the code of the preceding municipality, including
25 arrears, interest on bonds and mortgages and revenue arising from the
26 sale of property belonging to or managed by the city.
27 § 11-119 City collector; absence; suspension of. a. In case of
28 inability of the city collector to perform the duties of his or her
29 office by reason of sickness or absence from the city, the mayor shall
30 designate some suitable person to perform the duties of the city collec-
31 tor's office during such inability or absence, and shall, if the comp-
32 troller so requires, take from such person a bond, with sufficient sure-
33 ties, in the manner hereinafter prescribed.
34 b. If the city collector or any deputy collector shall on any day omit
35 or neglect to furnish to the commissioner of finance or to the comp-
36 troller, respectively, the statements and vouchers required in section
37 11-121 of this chapter, or to make the prescribed daily payments, it
38 shall be the duty of the commissioner of finance forthwith to suspend
39 him or her from office. In case of such suspension, the commissioner of
40 finance shall appoint a suitable person to perform the duties of the
41 officer so suspended, who shall continue to act as such officer until
42 the person suspended shall be restored or another person shall have been
43 appointed. On making such temporary appointment, the commissioner of
44 finance shall be required to take from the person so appointed a bond,
45 with two sufficient sureties, to be approved by the comptroller and
46 filed with the comptroller, in such penal sum as the comptroller may
47 deem just, conditioned for the faithful performance of the duties of the
48 office during the continuance of the person appointed therein; and all
49 the provisions of law prescribing the duties of the city collector and
50 deputy collectors shall apply to the person or persons so appointed.
51 § 11-120 Bond of city collector to be filed. The bond given by the
52 city collector shall be filed and remain in the office of the comp-
53 troller, and true copies thereof, certified by the comptroller, shall be
54 filed in the office of the clerk, and shall be public records. In case
55 a certificate of the adjustment of the accounts of the city collector be
56 made, a true copy thereof, certified by the comptroller, shall be filed
S. 8578 245
1 in each of the offices in which a copy of the bond of the city collector
2 shall have been filed.
3 § 11-121 City collector; daily statements and accounts. a. The city
4 collector or the deputy collector shall enter upon accounts, to be main-
5 tained in each such office for each parcel of property, the payment of
6 taxes, assessments, sewer rents or water rents thereon, the amount
7 therefor, and the date when paid. The city collector shall daily enter
8 into suitable books to be kept for the purpose of such accounts, such
9 payments and the respective parcels on account of which the same were
10 paid.
11 b. At close of office hours each day, the city collector shall render
12 to the commissioner of finance a statement of the sums so received, and
13 at the same time pay over to such commissioner of finance, the amount
14 received on such day. The city collector shall thereupon receive from
15 such commissioner of finance a voucher for the payment of such sums
16 which he or she shall exhibit to the comptroller not later than the next
17 succeeding business day.
18 c. At the close of office hours each day, the city collector shall
19 also furnish a statement to the comptroller who shall file the same in
20 his or her office. Such statement shall indicate in detail such sums so
21 received and the respective parcels on account of which the same were
22 paid. The comptroller shall, on each day, immediately after receiving
23 such statement, compare it with a voucher furnished to him or her by the
24 commissioner of finance indicating the sums which have been paid on such
25 day to the commissioner of finance and if the aggregate amounts thereof
26 shall correspond, shall credit the city collector in his or her books
27 with such amount.
28 § 11-122 Exemption from taxes granted to REMICs. An entity that is
29 treated for federal income tax purposes as a real estate mortgage
30 investment conduit, hereinafter referred to as a REMIC, as such term is
31 defined in section 860D of the internal revenue code, shall be exempt
32 from all taxation under chapters five and six of this title. A REMIC
33 shall not be treated as a corporation, partnership or trust for purposes
34 of chapter six of this title. The assets of a REMIC shall not be
35 included in the calculation of any tax liability under chapter six. This
36 provision does not exempt the holders of regular or residual interests,
37 as defined in section 860G of the internal revenue code, in a REMIC from
38 tax on or measured by such regular or residual interests, or on income
39 from such interests.
40 § 11-123 Interest compounded daily.
41 In computing the amount of any interest required to be paid under
42 section 11-224 (except subdivision j thereof), 11-224.1, 11-264, 11-306,
43 11-307, 11-312, 11-313, 17-151, 19-152, 24-317, 24-512, 24-605, 26-128,
44 26-517.1, 27-2144 or 27-4029.1 of the code, such interest shall be
45 compounded daily.
46 § 11-124 Conciliation conferences. a. The commissioner of finance may
47 establish a procedure for providing conciliation conferences for
48 purposes of settling contested determinations of taxes or charges or
49 denials of refunds or credits with respect to taxes or charges imposed
50 under chapter five, six, seven, eight, nine, eleven, twelve, thirteen,
51 fourteen, fifteen, twenty-one, twenty-two, twenty-four, twenty-five or
52 twenty-seven of this title, or for the purpose of settling disputes
53 arising from the notification of the refusal to grant, the suspension or
54 the revocation of a license issued pursuant to chapter thirteen of this
55 title. If such a procedure is established, a conciliation conference
56 shall be provided at the option of any taxpayer or any other person
S. 8578 246
1 subject to the provisions of any of such chapters. For purposes of this
2 subdivision, if the commissioner of finance fails to act with respect to
3 a refund application before the expiration of the time period after
4 which the taxpayer may file a petition for refund with the tax appeals
5 tribunal established by section one hundred sixty-eight of the charter
6 of the preceding municipality as it existed January first, nineteen
7 hundred ninety-four pursuant to subdivision (c) of section 11-529 or
8 subdivision three of section 11-680 of the code, such failure shall be
9 deemed to be the denial of a refund.
10 b. A request for a conciliation conference shall be made in the manner
11 set forth in rules promulgated by the commissioner of finance and,
12 notwithstanding any provision of law to the contrary, shall suspend the
13 running of the period of limitations for the filing of a petition with
14 such tax appeals tribunal under chapter five, six, seven, eight, nine,
15 eleven, twelve, thirteen, fourteen, fifteen, twenty-one, twenty-two,
16 twenty-four, twenty-five or twenty-seven of this title until such time
17 as a conciliation decision is rendered by the commissioner of finance,
18 or until the person who requested the conciliation conference makes a
19 written request to discontinue or withdraw from the conciliation
20 proceeding.
21 c. Nothing contained herein shall prevent any taxpayer or any other
22 person who has received a notice of determination, notice of deficiency
23 or notice of denial of a claim for refund from filing a petition with
24 such tax appeals tribunal if the time for filing such a petition has not
25 elapsed.
26 d. The commissioner of finance is authorized and empowered to make,
27 adopt and amend rules appropriate to the carrying out of this section
28 and the purposes thereof.
29 § 11-126 Definitions. When used in this title, the term "partnership"
30 shall mean an entity classified as a partnership for federal income tax
31 purposes, including a subchapter K limited liability company, and the
32 term "partner" or the term "member" when used in relation to a partner-
33 ship shall include a member of a subchapter K limited liability company,
34 unless the context requires otherwise. The term "subchapter K limited
35 liability company" shall mean a limited liability company classified as
36 a partnership for federal income tax purposes. The term "limited liabil-
37 ity company" means a domestic limited liability company or a foreign
38 limited liability company, as defined in section one hundred two of the
39 state limited liability company law, a limited liability investment
40 company formed pursuant to section five hundred seven of the banking
41 law, or a limited liability trust company formed pursuant to section one
42 hundred two-a of the banking law. Notwithstanding anything herein to
43 the contrary, this section shall not apply for purposes of chapter
44 seventeen or nineteen of this title.
45 § 11-128 Payment of real property taxes by electronic funds transfer.
46 a. Definition. "Electronic funds transfer" shall mean any transfer of
47 funds, other than a transaction originated by check, draft or similar
48 paper instrument, which is initiated through an electronic terminal,
49 telephonic instrument or computer or magnetic tape so as to order,
50 instruct or authorize a financial institution to debit or credit an
51 account.
52 b. Authority. Notwithstanding any provision of law to the contrary,
53 the department of finance may accept and, as authorized by this section,
54 require payment of real property taxes by electronic funds transfer, and
55 may authorize a designee to accept such payments. The department of
56 finance, or its designee, may take all actions necessary to complete and
S. 8578 247
1 administer such transactions, including but not limited to requesting
2 and collecting necessary information and the debiting of specified
3 accounts as provided for by this section.
4 c. Participation. Notwithstanding any provision of law to the contra-
5 ry, the commissioner may require the payment of real property taxes by
6 electronic funds transfer for properties with annual real property tax
7 liability equal to or greater than three hundred thousand dollars. The
8 owner of any such real property, or the person or entity authorized by
9 such owner to pay real property taxes on such real property, shall be
10 required to enroll in an electronic payment program to make such
11 payments, including any arrears in real property taxes on such real
12 property, by electronic funds transfer, either by payment initiated by
13 the taxpayer as described in paragraph one of subdivision d of this
14 section or by authorizing the department of finance to debit the rele-
15 vant account as described in paragraph two of subdivision d of this
16 section.
17 1. Notwithstanding any other provision of this section, where a
18 taxpayer pays real property taxes for more than one property by a single
19 payment, and the total annual real property tax liability for such prop-
20 erties is equal to or greater than three hundred thousand dollars, the
21 total annual real property tax liability for such properties shall be
22 used to determine whether the taxes for a property must be paid by elec-
23 tronic funds transfer.
24 2. (i) Where real property taxes are paid for more than one taxpayer
25 by a single bill or paid by a single entity, including but not limited
26 to a mortgage escrow agent as defined in subparagraph (ii) of this para-
27 graph, if the total amount paid is equal to or greater than three
28 hundred thousand dollars annually, such amount shall be used to deter-
29 mine whether the taxpayer or entity is required to participate in an
30 electronic funds transfer program.
31 (ii) For purposes of this paragraph, the term "mortgage escrow agent"
32 shall include every banking organization, federal savings bank, federal
33 savings and loan association, federal credit union, bank, trust company,
34 licensed mortgage banker, savings bank, savings and loan association,
35 credit union, insurance corporation organized under the laws of any
36 state other than New York, or any other person, entity or organization
37 which, in the regular course of its business, requires, maintains or
38 services escrow accounts in connection with mortgages on real property
39 located in the city.
40 d. Electronic payment program. The owner of real property, or other
41 person or entity authorized by such owner to pay real property taxes on
42 real property for which payment must be made by electronic funds trans-
43 fer under this section, may choose between participating in a taxpayer
44 initiated payment program or an automatic debit program, as set forth in
45 this subdivision and described in rules promulgated by the commissioner
46 of finance.
47 1. Taxpayer initiated program. In such a program, taxpayers initiate
48 payment by electric funds transfer, including payment by fedwire.
49 2. Automatic debit program. In such a program, taxpayers authorize the
50 department of finance, or the department's designee as determined by the
51 commissioner of finance, to debit the taxpayer's account for the amounts
52 due.
53 e. Notification of participation requirements. For taxpayers or enti-
54 ties subject to this section, the department of finance shall mail
55 notice of such requirement to the property owner or other party who has
56 been designated to receive real property tax bills on an owner's regis-
S. 8578 248
1 tration card filed by such owner. Such notice shall include the date by
2 which the owner or other party designated by such owner to pay real
3 property taxes on the property must enroll in the electronic payment
4 program.
5 f. Authorization. To administer the payment of real property taxes by
6 electronic funds transfer by automatic debit as described in paragraph
7 two of subdivision d of this section, the department of finance may
8 require that the party responsible for the payment of real property
9 taxes:
10 1. execute an electronic funds transfer agreement with the department
11 of finance or its designee, on a form approved by the department of
12 finance. Such form may be in a format designated by the commissioner,
13 including an electronic format. The agreement shall require that the
14 taxpayer authorize the department of finance or its designee to debit
15 such account on the last date by which the real property taxes may be
16 paid without the accrual of interest in accordance with applicable law;
17 and
18 2. furnish the department of finance or its designee with information
19 to enable the department of finance to complete the electronic funds
20 transfer transaction. Such information shall include, but not be limited
21 to, the name and address of the bank from which an electronic funds
22 transfer shall be authorized, the account number from which the payment
23 shall be authorized, the American Bankers Association (ABA) routing
24 number of the bank where the taxpayer maintains an account and the
25 borough, block and lot of the real property for which such payments are
26 authorized.
27 g. Timely payment. Notwithstanding any provision of law to the contra-
28 ry, where real property taxes are required to be made by electronic
29 funds transfer pursuant to subdivision c of this section, payment of
30 real property tax by electronic funds transfer shall be deemed timely
31 and not subject to interest charges if:
32 1. for taxpayers enrolled in a taxpayer initiated program pursuant to
33 paragraph one of subdivision d of this section, (i) the taxpayer proper-
34 ly initiates payment on the last date by which the real property taxes
35 may be paid without the accrual of interest in accordance with applica-
36 ble law; and (ii) on the last date by which the real property taxes may
37 be paid without the accrual of interest in accordance with applicable
38 law, such account contains sufficient funds to enable the successful
39 completion of the electronic funds transfer; or
40 2. for taxpayers enrolled in an automatic debit program pursuant to
41 paragraph two of subdivision d of this section, (i) the department of
42 finance or its designee has been authorized to debit the taxpayer's
43 account on the last date by which the real property taxes may be paid
44 without the accrual of interest in accordance with applicable law; (ii)
45 such account is properly identified; and (iii) on the date such payment
46 is due, such account contains sufficient funds to enable the successful
47 completion of the electronic funds transfer.
48 h. Charge on returned payments. Where the department of finance or its
49 designee attempts to debit a taxpayer's account pursuant to a valid
50 electronic funds transfer agreement and is unable to successfully
51 complete the electronic funds transfer due to insufficient funds or
52 other cause not attributable to the department of finance or its desig-
53 nee, in addition to any interest accruing from the late payment of taxes
54 in accordance with applicable law, the same fee that is imposed for a
55 dishonored check pursuant to section eighty-five of the general munici-
S. 8578 249
1 pal law shall be imposed on the affected real property, and such fee may
2 be collected in the manner provided in such section.
3 i. Hardship. If a taxpayer is unable to enroll in the electronic
4 payment program required by subdivision c of this section or subsequent
5 to enrollment becomes unable to make payments by electronic funds trans-
6 fer as required by this section, the taxpayer may seek a waiver by writ-
7 ten application to the department of finance that sets forth the reason
8 for such inability. Such waiver may be granted in the discretion of the
9 commissioner of finance, who may consider such criteria as:
10 1. the hardship, whether financial or practical, created by partic-
11 ipation in the electronic funds transfer program for the taxpayer seek-
12 ing the waiver;
13 2. the length of time for which the waiver is requested; and
14 3. any other factors that the commissioner may deem relevant.
15 The commissioner shall issue a determination, in writing, within ten
16 days of the department of finance's receipt of a waiver request pursuant
17 to this subdivision, but no waiver shall be granted with respect to the
18 payment of any installment of real property taxes that is due within
19 thirty days of the date of the request for a waiver.
20 j. Confidentiality. The department of finance shall assure the confi-
21 dentiality of information supplied by taxpayers in effecting electronic
22 funds transfers in accordance with applicable provisions of law. The
23 provisions of article six of the public officers law shall not apply to
24 any such information furnished by taxpayers subject to the requirements
25 of this section.
26 k. Failure to pay by electronic funds transfer. 1. With respect to any
27 real property as to which real property taxes are required to be paid by
28 electronic funds transfer under this section, but for which an install-
29 ment of real property taxes is not paid by electronic funds transfer and
30 is paid instead by any other method, including payment by check, (i)
31 with respect to the first installment that is paid by any other method,
32 including payment by check, the department of finance shall mail a warn-
33 ing notice to the taxpayer setting forth the requirement to make payment
34 by electronic funds transfer and the penalties for failure to do so; and
35 (ii) with respect to each and every subsequent installment that is paid
36 by any other method, including payment by check, the department of
37 finance shall impose a penalty charge in the amount of one percent of
38 the amount of the tax installment that was required under this section
39 to be paid by electronic funds transfer.
40 2. Any penalty charge imposed under this subdivision shall be a lien
41 against the real property for which the taxpayer failed to make a
42 payment in the manner required by this section, and shall accrue inter-
43 est at the same rate as is imposed on a delinquent tax on real property,
44 to be calculated to the date of payment from the date of entry. Such
45 lien shall be a tax lien within the meaning of sections 11-319 and
46 11-401 and may be sold, enforced or foreclosed in the manner provided in
47 chapters three and four of this title.
48 l. Rules. The commissioner may promulgate rules necessary to implement
49 this section.
50 CHAPTER 2
51 REAL PROPERTY ASSESSMENT, TAXATION AND CHARGES
52 SUBCHAPTER 1
53 ASSESSMENT ON REAL PROPERTY
54 § 11-201 Assessments on real property; general powers of finance
55 department. The commissioner of finance shall be charged generally with
S. 8578 250
1 the duty and responsibility of assessing all real property subject to
2 taxation within the city.
3 § 11-202 Maps and records; surveyor. The commissioner of finance
4 shall appoint a surveyor who shall make the necessary surveys and
5 corrections of the block or ward maps, and also make all new tax maps
6 which may be required.
7 § 11-203 Maps and records; tax maps. a. As used in the charter of
8 the city of Staten Island and in this code, the term "tax maps" shall
9 mean and include the block map of taxes and assessments to the extent
10 that the territory within the city of Staten Island is or shall be
11 embraced in such map, such ward or land maps as embrace the remainder of
12 such city, and also such maps as may be prepared under and pursuant to
13 subdivision d of this section.
14 b. Each separately assessed parcel shall be indicated on the tax maps
15 by a parcel number or by an identification number. A separate identifi-
16 cation number shall be entered upon the tax maps in such manner as
17 clearly to indicate each separately assessed parcel of real property not
18 indicated by parcel numbering. Real property indicated by a single
19 identification number shall be deemed to be a separately assessed
20 parcel.
21 In the case of a newly created parcel with any building thereon, no
22 tax lot number or identification number shall be assigned to such parcel
23 unless the commissioner of the department of buildings has certified
24 that the newly created parcel complies with all applicable zoning laws.
25 c. Parcel numbers shall designate each parcel by the use of three or
26 more numbers, of which one shall be a section or ward number, another a
27 block, district or plat number, and another a lot number. The depart-
28 ment of finance may from time to time change the form of the section and
29 blocks, and also the numbers thereof, on the tax maps filed in its
30 office whenever such change of form has been caused pursuant to section
31 one hundred ninety-nine of the charter of the preceding municipality as
32 it existed on the first of January in the year next succeeding the
33 effective date of this section and there shall thereafter be delineated
34 and entered upon such maps such new additional sections and blocks and
35 their numbers as necessity may require. Such administration may from
36 time to time change the form of the lots or parcels comprised within any
37 block, and also the numbers thereof, and cause to be shown on such maps
38 the separate lots or parcels of land contained in any new block added
39 thereto and also the lot numbers thereof, according to the general plan
40 employed in the making of such maps.
41 d. Each separately assessed parcel indicated by an identification
42 number shall be shown by a description, or by inscription of such number
43 on the block map of taxes and assessments, or by other map and
44 description. Such numbers may be altered in the same manner as provided
45 in subdivision c of this section for the alteration of parcel numbers.
46 e. New tax maps shall be certified by the department of finance and
47 filed in its main office. All changes and alterations made in the tax
48 maps shall be transmitted within thirty days after such change or alter-
49 ation to such office.
50 § 11-204 Tax maps; block references; alterations and corrections. The
51 word "block", as used in this section designates a plot or parcel of
52 land such as is commonly so designated in the city, wholly embraced
53 within the continuous lines of streets, or streets and waterfront taken
54 together where water forms one of the boundaries of a block, and such
55 other parcels of land or land under water as may be indicated by the
S. 8578 251
1 department of finance upon such tax maps by block numbers as constitut-
2 ing blocks.
3 § 11-205 Maps and records; public inspection; evidential value. a. The
4 books, maps, assessment-rolls, files and records of the department of
5 finance shall be kept in such of the offices of the department of
6 finance as may be most convenient to the taxpayers of the city and suit-
7 able to the proper discharge of the business of the department of
8 finance. They shall be public records and shall at all reasonable times
9 be open to public inspection.
10 b. Copies of all such records and transcripts thereof, certified by
11 the commissioner of finance or an assessor or by an officer or employee
12 of the department of finance designated by the commissioner of finance,
13 and under the seal of the department of finance, shall be admissible in
14 evidence in all courts and places in the same manner and for the same
15 purposes as books, papers or documents similarly authenticated by the
16 clerk of a county.
17 § 11-206 Power of the commissioner of finance to correct errors. The
18 commissioner of finance may correct any assessment or tax which is erro-
19 neous due to a clerical error or to an error of description contained in
20 the several books of annual record of assessed valuations, or in the
21 assessments-rolls. If the taxes computed on such erroneous assessment
22 have been paid, the commissioner of finance is authorized to refund or
23 credit the difference between the taxes computed on the erroneous and
24 corrected assessments.
25 § 11-207 Duties of assessors in assessing property. a. In performing
26 their assessment duties, the assessors shall personally examine each
27 parcel of taxable real estate during at least every third assessment
28 cycle, and shall personally examine each parcel of real estate that is
29 not taxable during at least every fifth assessment cycle, as measured
30 from the last preceding assessment cycle during which such parcel was
31 personally examined, provided, however, the assessors shall revalue,
32 reassess or update the assessment of each parcel of taxable or nontaxa-
33 ble real estate during each assessment cycle, irrespective of whether
34 such parcel was personally examined during each assessment cycle.
35 b. The persons having charge of the assessment office shall furnish to
36 the commissioner of finance, under oath, a detailed statement of all
37 taxable real estate in the city. Such statement shall contain the
38 street, the section or ward, the block and lot and map or identification
39 numbers of such real estate embraced within such city; the sum for
40 which, in their judgment, each separately assessed parcel of real estate
41 would sell under ordinary circumstances if it were wholly unimproved
42 and, separately stated, the sum for which the same parcel would sell
43 under ordinary circumstances with the improvements, if any, thereon,
44 such sums to be determined with regard to the limitations contained in
45 the state real property tax law. Such statement shall include such
46 other information as the commissioner of finance may, from time to time,
47 require.
48 § 11-208 Special right of entry; certificate of the commissioner of
49 finance. A right of entry upon real property and into buildings and
50 structures at all reasonable times to ascertain the character of the
51 property shall not be allowed to any person acting in behalf of the
52 department of finance, other than the officials mentioned in sections
53 one hundred fifty-six and one thousand five hundred twenty-one of the
54 charter of the preceding municipality as it existed on the first of
55 January in the year next succeeding the effective date of this section,
56 unless a certificate therefor, executed in writing and signed by the
S. 8578 252
1 commissioner of finance, is presented by such person to the owner,
2 lessee, or occupant of the premises or his or her agent before entry
3 thereon is made.
4 § 11-208.1 Income and expense statements. a. Where real property is
5 income-producing property, the owner shall be required to submit annual-
6 ly to the department not later than the first of September a statement
7 of all income derived from and all expenses attributable to the opera-
8 tion of such property as follows:
9 (1) Where the owner's books and records reflecting the operation of
10 the property are maintained on a calendar year basis, the statement
11 shall be for the calendar year preceding the date the statement shall be
12 filed.
13 (2) Where the owner's books and records reflecting the operation of
14 the property are maintained on a fiscal year basis for federal income
15 tax purposes, the statement shall be for the last fiscal year concluded
16 as of the first of August preceding the date the statement shall be
17 filed.
18 (3) Notwithstanding the provisions of paragraphs one and two of this
19 subdivision, where the owner of the property has not operated the prop-
20 erty and is without knowledge of the income and expenses of the opera-
21 tion of the property for a consecutive twelve month period concluded as
22 of the first of August preceding the date of the statement shall be
23 filed, then the statement shall be for the period of ownership.
24 (4) The commissioner may for good cause shown extend the time for
25 filing an income and expense statement by a period not to exceed thirty
26 days.
27 b. Such statements shall contain the following declaration: "I certify
28 that all information contained in this statement is true and correct to
29 the best of my knowledge and belief. I understand that the willful
30 making of any false statement of material fact herein will subject me to
31 the provisions of law relevant to the making and filing of false instru-
32 ments and will render this statement null and void."
33 c. The form on which such statement shall be submitted shall be
34 prepared by the commissioner and copies of such form shall be made
35 available at the offices of the department in the county in which the
36 property is located. The commissioner may, by rule, require such state-
37 ment to be submitted electronically in such form and such manner as the
38 commissioner may determine. For good cause, the commissioner may waive
39 any rule requiring electronic filing and may permit a statement to be
40 filed in such other manner as the commissioner may designate.
41 d. (1) In the event that an owner of income-producing property fails
42 to file an income and expense statement within the time prescribed in
43 subdivision a of this section (determined with regard to any extension
44 of time for filing), such owner shall be subject to a penalty in an
45 amount not to exceed three percent of the assessed value of such
46 income-producing property determined for the current fiscal year in
47 accordance with section fifteen hundred six of the charter of the
48 preceding municipality as it existed on the first of January in the year
49 next succeeding the effective date of this section provided, however,
50 that if such statement is not filed by the thirty-first of December, the
51 penalty shall be in an amount not to exceed four percent of such
52 assessed value. If, in the year immediately following the year in which
53 an owner fails to file by the thirty-first of December, the owner again
54 fails to file an income and expense statement within the time prescribed
55 in subdivision a of this section (determined with regard to any exten-
56 sion of time for filing), such owner shall be subject to a penalty in an
S. 8578 253
1 amount not to exceed five percent of the assessed value of such property
2 determined for the current fiscal year. Such owner shall also be subject
3 to a penalty of up to five percent of such assessed value in any year
4 immediately succeeding a year in which a penalty of up to five percent
5 could have been imposed, if in such succeeding year the owner fails to
6 file an income and expense statement within the time prescribed in
7 subdivision a of this section (determined with regard to any extension
8 of time for filing). The penalties prescribed in this paragraph shall be
9 determined by the commissioner after notice and an opportunity to be
10 heard.
11 (2) The tax commission shall deny a hearing on any objection to the
12 assessment of property for which an income and expense statement is
13 required and has not been timely filed.
14 (3) Where an income and expense statement required under the
15 provisions of this section has not been timely filed, the commissioner
16 may compel by subpoena the production of the books and records of the
17 owner relevant to the income and expenses of the property, and may also
18 make application to any court of competent jurisdiction for an order
19 compelling the owner to furnish the required income and expense state-
20 ment.
21 e. As used in this section, the term "income-producing property" means
22 property owned for the purpose of securing an income from the property
23 itself, but shall not include property with an assessed value of forty
24 thousand dollars or less, or residential property containing ten or
25 fewer dwelling units or property classified in class one or two as
26 defined in article eighteen of the real property tax law containing six
27 or fewer dwelling units and one retail store.
28 f. Except in accordance with proper judicial order or as otherwise
29 provided by law, it shall be unlawful for the commissioner, any officer
30 or employee of the department, the president or a commissioner or
31 employee of the tax commission, any person engaged or retained by the
32 department or the tax commission on an independent contract basis, or
33 any person, who, pursuant to this section, is permitted to inspect any
34 income and expense statement or to whom a copy, an abstract or a portion
35 of any such statement is furnished, to divulge or make known in any
36 manner except as provided in this subdivision, the amount of income
37 and/or expense or any particulars set forth or disclosed in any such
38 statement required under this section. The commissioner, the president
39 of the tax commission, or any commissioner or officer or employee of the
40 department or the tax commission charged with the custody of such state-
41 ments shall not be required to produce any income and expense statement
42 or evidence of anything contained in them in any action or proceeding in
43 any court, except on behalf of the department or the tax commission.
44 Nothing herein shall be construed to prohibit the delivery to an owner
45 or his or her duly authorized representative of a certified copy of any
46 statement filed by such owner pursuant to this section or to prohibit
47 the publication of statistics so classified as to prevent the identifi-
48 cation of particular statements and the items thereof, or making known
49 aggregate income and expense information disclosed with respect to prop-
50 erty classified as class four as defined in article eighteen of the real
51 property tax law without identifying information about individual leas-
52 es, or making known a range as determined by the commissioner within
53 which the income and expenses of a property classified as class two
54 falls, or the inspection by the legal representatives of the department
55 or of the tax commission of the statement of any owner who shall bring
56 an action to correct the assessment. Any violation of the provisions of
S. 8578 254
1 this subdivision shall be punished by a fine not exceeding one thousand
2 dollars or by imprisonment not exceeding one year, or both, at the
3 discretion of the court, and if the offender be an officer or employee
4 of the department or the tax commission, the offender shall be dismissed
5 from office.
6 g. The commissioner shall be authorized to promulgate rules and regu-
7 lations necessary to effectuate the purposes of this section.
8 h. Subdivision f of this section shall be deemed a state statute for
9 purposes of paragraph (a) of subdivision two of section eighty-seven of
10 the public officers law.
11 § 11-209 Taxable status of building in course of construction. a. A
12 building in the course of construction, commenced since the preceding
13 fifth day of January and not ready for occupancy on the fifth day of
14 January following, shall not be assessed unless it shall be ready for
15 occupancy or a part thereof shall be occupied prior to the fifteenth of
16 April.
17 b. (1) A commercial building in the course of construction, commenced
18 since the fifth day of January one year preceding the taxable status
19 date and not ready for occupancy or partially occupied on the taxable
20 status date, shall not be assessed unless it shall be ready for occupan-
21 cy or a part thereof shall be occupied prior to the fifteenth day of
22 April following the taxable status date.
23 (2) A commercial building in the course of construction, commenced
24 since the fifth day of January two years preceding the taxable status
25 date and not ready for occupancy or partially occupied on the taxable
26 status date, shall not be assessed unless it shall be ready for occupan-
27 cy or a part thereof shall be occupied prior to the fifteenth day of
28 April following the taxable status date.
29 (3) A commercial building in the course of construction, commenced
30 since the fifth day of January three years preceding the taxable status
31 date and not ready for occupancy or partially occupied on the taxable
32 status date, shall not be assessed unless it shall be ready for occupan-
33 cy or a part thereof shall be occupied prior to the fifteenth day of
34 April following the taxable status date.
35 c. For purposes of this section, a "commercial building" shall mean a
36 building that is intended to be used, and upon completion is used,
37 exclusively for buying, selling or otherwise providing goods or
38 services, or for other lawful business, commercial or manufacturing
39 activities, excluding hotel services, except that a commercial building
40 may contain a residential component other than a hotel, provided (i)
41 that such residential component is receiving or has applied for and is
42 eligible to receive a partial exemption from real property taxes pursu-
43 ant to section four hundred twenty-one-a of the real property tax law,
44 or (ii) that such residential component in its entirety, both land and
45 building, is receiving or has applied for and is eligible to receive a
46 full exemption from real property taxes, provided, however, a "commer-
47 cial building" shall not include any building that is constructed on
48 block 1049, lot 29 as shown on the tax map of the city of New York for
49 the borough of Manhattan as such map was in effect for the assessment
50 roll published in calendar year two thousand.
51 d. Subdivision b of this section shall not apply to a tax lot that
52 constitutes a part of a building unless the building viewed as a whole
53 is a commercial building as defined in subdivision c of this section.
54 e. Any building that receives the benefit conferred pursuant to subdi-
55 vision b of this section that is subsequently determined not to have
56 been a commercial building as defined in subdivision c of this section
S. 8578 255
1 for any year in which it received such benefit shall have its assessment
2 corrected for any such year. Taxes shall be imposed in the amount that
3 would have applied had the corrected taxable assessed value appeared on
4 the final assessment roll.
5 § 11-210 Books of annual record of assessed valuation of real estate
6 indicated by parcel numbers; form and contents. a. There shall be kept
7 in the office of the department of finance, books of the annual record
8 of the assessed valuation of real estate to be called "the annual record
9 of the assessed valuation of real estate indicated by parcel numbers in
10 the Staten Island", in which shall be entered in detail the assessed
11 valuation of each separately assessed parcel indicated by a parcel
12 number within the limits of Staten Island.
13 b. The assessed valuation of each such parcel shall be set down in
14 such books in two columns. In the first column shall be stated, oppo-
15 site each such parcel, the sum for which such parcel would sell under
16 ordinary circumstances if wholly unimproved; and in the second column,
17 the sum for which such parcel would sell under ordinary circumstances
18 with the improvements, if any thereon.
19 c. Such books shall be prepared in such manner that the assessed valu-
20 ations entered therein shall be under sections and block headings as may
21 be most convenient for use in connection with the tax maps described in
22 section 11-203 of this chapter.
23 § 11-211 Books of annual record of assessed valuation of real estate
24 indicated by identification numbers. a. The assessed valuation of all
25 taxable real property indicated by identification numbers shall be
26 entered in the office of the department of finance.
27 b. The assessors in the city shall furnish to the commissioner of
28 finance at the office of the department of finance, a detailed statement
29 under oath of the assessable real property indicated by an identifica-
30 tion number in such city.
31 c. There shall be kept in the office of the department of finance,
32 books of the annual record of the assessed valuation of real estate to
33 be known as "the annual record of the assessed valuation of real estate
34 indicated by identification numbers", in which shall be entered the
35 assessed valuations of the real property mentioned in this section.
36 § 11-212 Power of the commissioner of finance to equalize assessments
37 before opening books. a. Before opening the several books of annual
38 record of assessed valuation for public inspection, the commissioner of
39 finance shall fix the valuations of property for the purpose of taxation
40 throughout the city at such sums as will, in the commissioner's judg-
41 ment, establish a just and equal relation between the valuations of
42 property throughout the entire city.
43 b. To this end the assessors are required to transmit to the commis-
44 sioner of finance in each year a report of the assessed valuation of
45 real property at such time prior to the fifteenth of January as such
46 commissioner may prescribe.
47 § 11-213 Errors in annual records or assessment-rolls. The omission
48 from the several books of annual record of assessed valuations or from
49 the assessment-rolls in respect to the entry therein of the name of the
50 rightful owner or owners of real estate, whether individuals or corpo-
51 rations, shall not invalidate any tax or assessment. In such case,
52 however, no tax shall be collected except from the real estate so
53 assessed.
54 § 11-214 Procedure on apportionment of assessment. a. The commissioner
55 of finance may apportion any assessment in such manner as he or she
56 shall deem just and equitable, and forthwith cause such assessment to be
S. 8578 256
1 cancelled and new assessments, equal in the aggregate to the cancelled
2 assessment, to be made on the proper books and rolls. Within five days
3 thereafter the commissioner of finance shall cause written notice of the
4 new assessments to be mailed to the owners of record of the real estate
5 so assessed at their last known residence or business address, and an
6 affidavit of the mailing of such notice to be filed in the office of the
7 department of finance.
8 b. When such notice is mailed after the first of February such owners
9 may apply for correction of such assessments within twenty days after
10 the mailing of such notice with the same force and effect as if such
11 application were made on or before the first of March in such year.
12 § 11-215 Entry of corrections made by tax commission. Upon receiving
13 notice of a correction of an assessment made by the tax commission, the
14 commissioner of finance shall cause the amount of the assessment as
15 corrected to be entered upon the proper books of annual record and the
16 assessment-rolls for the year for which such correction is made.
17 § 11-216 Reduction in assessments; publication. a. There shall be
18 published annually in the City Record a list of all reductions in real
19 property assessments granted by the tax commission identifying the name
20 of the property owner, the address and the amount of reduction.
21 b. No reduction shall be granted for an income-producing property
22 unless there is submitted to the tax commission a statement of income
23 and expenses in the form prescribed by the tax commission and which
24 shall be, in the case of property valued at one million dollars or more
25 certified by a certified public accountant. The commissioner granting
26 such reduction in assessment shall state in a short memorandum the basis
27 upon which the reduction is granted.
28 c. In all cases where the reduction in assessment for the current year
29 is for fifty thousand dollars or more, the concurrence of the president
30 of the tax commission shall be required.
31 § 11-217 Assessment-rolls; form and contents. Assessment-rolls shall
32 be so arranged with respect to number of columns and shall contain such
33 entries as the commissioner of finance shall prescribe, sufficient to
34 identify the property assessed and to show its total assessed valuation.
35 Real estate shall be described therein by the numbers by which such
36 property is designated on the tax maps and in the several books of the
37 annual record of the assessed valuation of real estate, and such numbers
38 shall import into the assessment-rolls any necessary identifying
39 description shown by the tax maps.
40 § 11-218 Assessment-rolls; delivery to council or city clerk. a. The
41 council shall meet at noon, on the day of delivery of the rolls, other
42 than a Saturday, Sunday, or legal holiday, at the city hall or usual
43 place of meeting for the purpose of receiving the assessment-rolls and
44 performing such other duties in relation thereto as are prescribed by
45 law.
46 b. If the council fails to meet as herein prescribed, the rolls shall
47 be delivered to the city clerk with the same effect as if delivered to
48 the council.
49 § 11-219 Books of annual record; delivery for publication. Within two
50 weeks after the delivery of the assessment-rolls to the council, the
51 commissioner of finance shall furnish to the director of the City Record
52 a copy of the several books of the annual record of the assessed valu-
53 ation of real estate, omitting, however, the two columns headed respec-
54 tively "size of house" and "houses on lot."
S. 8578 257
1 § 11-220 Council; date of meeting to fix tax rate. The council shall
2 meet on a day other than a Saturday, Sunday or legal holiday, to fix the
3 annual tax rate.
4 § 11-221 Extension of tax on assessment-rolls or upon assessment-roll
5 cards. The respective sums to be paid as taxes on the valuation of real
6 property, may be set down in the assessment-rolls, or upon assessment-
7 roll cards.
8 § 11-222 Tax account of the commissioner of finance. Upon notification
9 from the public advocate of the amount of taxes mentioned in such
10 assessment-rolls and tax warrants, the comptroller shall cause the prop-
11 er sum to be charged to the commissioner of finance for collection.
12 § 11-223 Apportionment of taxes. a. If a sum of money in gross has
13 been or shall be taxed upon any lands or premises, any person or persons
14 claiming any dividend or undivided part thereof may pay such part of
15 such sum so taxed and of any interest and charges due or charged there-
16 on, as the commissioner of finance may deem to be just and equitable.
17 b. The commissioner of finance shall apportion the assessed valuation
18 of such lands or premises.
19 c. The remainder of the sum of money so taxed and the interest and
20 charges shall be a lien upon the residue of the land and premises only,
21 and the tax lien upon such residue may be sold to satisfy such tax,
22 interest or charges thereon, in the same manner as though the residue of
23 said tax had been imposed only upon such residue of such lands or prem-
24 ises.
25 § 11-224 Interest on unpaid taxes. a. If any tax on real estate which
26 shall have become due and payable prior to January first, nineteen
27 hundred thirty-four, is unpaid in whole or in part, the commissioner of
28 finance shall charge, receive and collect interest upon the amount of
29 such tax or such part thereof, to be calculated to the date of payment
30 at the rate of seven per centum per annum from the date when such tax or
31 such part thereof became due and payable to January first, nineteen
32 hundred thirty-four, at the rate of ten per centum per annum from Janu-
33 ary first, nineteen hundred thirty-four to May first, nineteen hundred
34 thirty-seven, or at the rate of seven per centum per annum for such
35 period if the comptroller and the commissioner of finance, in their
36 discretion, both determine that the payment of any tax arrears at such
37 reduced rate of interest may operate to save the property upon which
38 such taxes are in arrears from foreclosure or encourage its development
39 or is otherwise in the public interest, at the rate of seven per centum
40 per annum from May first, nineteen hundred thirty-seven to August first,
41 nineteen hundred sixty-nine, and from August first, nineteen hundred
42 sixty-nine to December thirty-first, nineteen hundred seventy-six, at
43 the rate of seven per centum per annum if the annual tax on a parcel is
44 two thousand dollars or less, and at the rate of one per centum per
45 month if the annual tax on a parcel is more than two thousand dollars
46 or, irrespective of the annual tax, if a parcel consists of vacant or
47 unimproved land, and from January first, nineteen hundred seventy-seven
48 at the rate of seven per centum per annum if the annual tax on a parcel
49 is two thousand dollars or less, and at the rate of fifteen per centum
50 per annum if the annual tax on a parcel is more than two thousand
51 dollars or, irrespective of the annual tax, if a parcel consists of
52 vacant or unimproved land.
53 b. If any tax on real estate which shall have become due and payable
54 after January first, nineteen hundred thirty-four and prior to April
55 first, nineteen hundred thirty-seven, is unpaid in whole or in part, the
56 commissioner of finance shall charge, receive and collect interest upon
S. 8578 258
1 the amount of such tax or such part thereof, to be calculated to the
2 date of payment at the rate of ten per centum per annum from the date on
3 which such tax or such part thereof became due and payable to May first,
4 nineteen hundred thirty-seven, or at the rate of seven per centum per
5 annum for such period if the comptroller and the commissioner of
6 finance, in their discretion, both determine that the payment of any tax
7 arrears at such reduced rate of interest may operate to save the proper-
8 ty upon which such taxes are in arrears from foreclosure or encourage
9 its development or is otherwise in the public interest, at the rate of
10 seven per centum per annum from May first, nineteen hundred thirty-seven
11 to August first, nineteen hundred sixty-nine, from August first, nine-
12 teen hundred sixty-nine to December thirty-first, nineteen hundred
13 seventy-six, at the rate of seven per centum per annum if the annual tax
14 on a parcel is two thousand dollars or less, and at the rate of one per
15 centum per month if the annual tax on a parcel is more than two thousand
16 dollars or, irrespective of the annual tax, if a parcel consists of
17 vacant or unimproved land, and from January first, nineteen hundred
18 seventy-seven, at the rate of seven per centum per annum if the annual
19 tax on a parcel is two thousand dollars or less, and at the rate of
20 fifteen per centum per annum if the annual tax on a parcel is more than
21 two thousand dollars or, irrespective of the annual tax, if a parcel
22 consists of vacant or unimproved land.
23 c. If any tax on real estate which shall have become due and payable
24 on or after April first, nineteen hundred thirty-seven and prior to
25 August first, nineteen hundred sixty-nine is unpaid in whole or in part,
26 the commissioner of finance shall charge, receive and collect interest
27 upon the amount of such tax or such part thereof, to be calculated to
28 the date of payment at the rate of seven per centum per annum from the
29 day on which such tax or such part thereof became due and payable to
30 August first, nineteen hundred sixty-nine, from August first, nineteen
31 hundred sixty-nine to December thirty-first, nineteen hundred seventy-
32 six, at the rate of seven per centum per annum if the annual tax on a
33 parcel is two thousand dollars or less, and at the rate of one per
34 centum per month if the annual tax on a parcel is more than two thousand
35 dollars or, irrespective of the annual tax, if a parcel consists of
36 vacant or unimproved land, and from January first, nineteen hundred
37 seventy-seven at the rate of seven per centum per annum if the annual
38 tax on a parcel is two thousand dollars or less, and at the rate of
39 fifteen per centum per annum if the annual tax on a parcel is more than
40 two thousand dollars or, irrespective of the annual tax, if a parcel
41 consists of vacant or unimproved land.
42 d. If any tax on real estate which shall have become due and payable
43 on or after August first, nineteen hundred sixty-nine and prior to
44 December thirty-first, nineteen hundred seventy-six, is unpaid in whole
45 or in part, the commissioner of finance shall charge, receive and
46 collect interest upon the amount of such tax or such part thereof, to be
47 calculated from the date on which such tax or such part thereof became
48 due and payable to December thirty-first, nineteen hundred seventy-six,
49 at the rate of seven per centum per annum if the annual tax on a parcel
50 is two thousand dollars or less, and at the rate of one per centum per
51 month if the annual tax on a parcel is more than two thousand dollars
52 or, irrespective of the annual tax, if a parcel consists of vacant or
53 unimproved land, and from January first, nineteen hundred seventy-seven
54 at the rate of seven per centum per annum if the annual tax on a parcel
55 is two thousand dollars or less, and at the rate of fifteen per centum
56 per annum if the annual tax on a parcel is more than two thousand
S. 8578 259
1 dollars or, irrespective of the annual tax, if a parcel consists of
2 vacant or unimproved land.
3 e. If any tax on real estate which shall become due and payable at any
4 time on or after January first, nineteen hundred seventy-seven, shall
5 remain unpaid in whole or in part on the fifteenth day following the
6 date on which the same shall become due and payable, the commissioner of
7 finance shall charge, receive and collect interest upon the amount of
8 such tax or such part thereof remaining unpaid on that date, to be
9 calculated from the day on which such tax or such part thereof became
10 due and payable to the date of payment at the rate of seven per centum
11 per annum if the annual tax on a parcel is two thousand dollars or less,
12 and at the rate of fifteen per centum per annum if the annual tax on a
13 parcel is more than two thousand dollars or, irrespective of the annual
14 tax, if a parcel consists of vacant or unimproved land.
15 f. If any tax on real estate which shall become due and payable at any
16 time on or after July first, nineteen hundred seventy-nine, shall remain
17 unpaid in whole or in part on the fifteenth day following the date on
18 which the same shall become due and payable, or if any tax on real
19 estate which became due and payable prior to July first, nineteen
20 hundred seventy-nine shall remain unpaid on that date, the commissioner
21 of finance shall charge, receive and collect interest upon the amount of
22 such tax or such part thereof remaining unpaid, to be calculated, in the
23 case of any tax which shall become due and payable on or after July
24 first, nineteen hundred seventy-nine, from the day on which such tax or
25 such part thereof became due and payable, and in the case of any tax
26 which became due and payable prior to July first, nineteen hundred
27 seventy-nine, from July first, nineteen hundred seventy-nine, to the
28 date of payment at the rate of seven per centum per annum if the annual
29 tax on a parcel is two thousand seven hundred fifty dollars or less, and
30 at the rate of fifteen per centum per annum if the annual tax on a
31 parcel is more than two thousand seven hundred fifty dollars or, irre-
32 spective of the annual tax, if a parcel consists of vacant or unimproved
33 land. Any interest accrued prior to July first, nineteen hundred seven-
34 ty-nine, pursuant to subdivisions a through e of this section shall be
35 unaffected by the provisions of this subdivision.
36 g. No later than the twenty-fifth day of May of each year, the banking
37 commission shall transmit a written recommendation to the council of a
38 proposed interest rate to be charged for nonpayment of taxes on real
39 estate in those cases where the annual tax on a parcel is more than two
40 thousand seven hundred fifty dollars or where, irrespective of the annu-
41 al tax, a parcel consists of vacant or unimproved land. In making such
42 recommendations the commission shall consider the prevailing interest
43 rates charged for commercial loans extended to prime borrowers by
44 commercial banks operating in the city and shall propose a rate of at
45 least six per centum per annum greater than such rates. The council may
46 by resolution adopt an interest rate to be applicable to the aforemen-
47 tioned parcels and may specify in such resolution the date on which such
48 interest rate is to take effect.
49 h. Notwithstanding anything to the contrary contained in the recommen-
50 dation transmitted by the banking commission to the council relative to
51 the proposed rate of interest to be charged during the fiscal year of
52 the city commencing July first, nineteen hundred seventy-nine in the
53 case of nonpayment of real estate taxes, or contained in the resolution
54 adopted by the council in accordance with such recommendation, the coun-
55 cil hereby sets the interest rate to be charged during the fiscal year
56 of the city commencing July first, nineteen hundred seventy-nine for
S. 8578 260
1 nonpayment of real estate taxes at eighteen per centum per annum where
2 the annual tax on a parcel is more than two thousand seven hundred fifty
3 dollars or where the parcel consists of vacant or unimproved land.
4 i. The interest mentioned in subdivisions a through h of this section
5 shall be paid over and accounted for from time to time by such commis-
6 sioner of finance as a part of the tax collected by him or her.
7 j. When an installment agreement has been entered into pursuant to any
8 of the provisions of chapter four of this title, during the period
9 beginning on the date this subdivision takes effect and ending April
10 thirtieth, nineteen hundred eighty-two, the commissioner of finance
11 shall, notwithstanding any higher rate of interest prescribed pursuant
12 to applicable law, and unless a lower rate of interest is applicable to
13 a parcel covered by such an agreement, charge, collect and receive
14 interest on the arrears due and payable under such agreement, to be
15 calculated at the rate of ten percent per annum from May first, nineteen
16 hundred eighty-two to the date of payment of each installment. Any
17 interest accrued or accruing prior to May first, nineteen hundred eight-
18 y-two shall not be affected by the provisions of this subdivision but
19 shall be charged, collected and received in the manner and at the rates
20 prescribed pursuant to applicable law. Such ten percent rate of inter-
21 est shall be applicable only if, as of May first, nineteen hundred
22 eighty-two, (i) there has been no default in such agreement, and (ii)
23 all current taxes, assessments or other legal charges are paid as they
24 become due or within the period of grace provided by law. Where an
25 installment agreement has been entered into prior to May fifth, nineteen
26 hundred eighty-two pursuant to the provisions of either paragraph three
27 of subdivision a of section 11-413 of chapter four of this title prior
28 to March fourteenth, nineteen hundred seventy-nine or of subdivision a
29 of section 11-405 or subdivision h of section 11-409 of chapter four of
30 this title and said agreement is current as to both installment payments
31 and current taxes, assessments and other legal charges, the commissioner
32 of finance, on application of the party who entered into such agreement,
33 may cancel said agreement and enter into a new agreement containing the
34 terms provided on May fifth, nineteen hundred eighty-two. If any such
35 prior agreement is not cancelled as herein provided, any installments
36 due and payable under such agreement on or after May first, nineteen
37 hundred eighty-two shall be subject to interest at the rate and under
38 the conditions set forth above. In the event of any subsequent default
39 or failure to make timely payment of any installment payment or current
40 tax, assessment or other legal charge, the ten percent rate of interest
41 specified in this subdivision shall thereupon cease to be applicable and
42 the commissioner of finance shall thereafter charge, collect and receive
43 interest in the manner and at the rates prescribed pursuant to applica-
44 ble law.
45 k. 1. Notwithstanding any other provision of this section to the
46 contrary, but subject to the exception contained in paragraph two of
47 this subdivision, in the case of an installment of tax on real property
48 described in paragraph b of subdivision four of section fifteen hundred
49 nineteen of the city charter of the preceding municipality as it existed
50 on the first of January in the year next succeeding the effective date
51 of this section, interest shall be charged, received and collected at
52 the rate established pursuant to this section if such installment shall
53 remain unpaid in whole or in part on the date on which it shall become
54 due and payable.
55 2. If the tax rate for any fiscal year of the city has not been set by
56 the fifteenth of June preceding the start of such fiscal year, interest
S. 8578 261
1 shall not be charged, received and collected with respect to the first
2 installment of tax which is due and payable on the first of July in such
3 fiscal year if such installment is paid on or before the extended
4 payment date. For this purpose, the term "extended payment date" means
5 the date which falls the same number of days after the first of July in
6 such fiscal year as the number of days the date such tax rate is set
7 falls after such fifteenth of June.
8 l. No later than the fifth day following the effective date of this
9 subdivision and no later than May twenty-fifth of each succeeding year,
10 the banking commission shall transmit a written recommendation to the
11 council of proposed interest rates to be charged for nonpayment of taxes
12 on real property in those cases in which the annual tax on a parcel,
13 other than a parcel which consists of vacant or unimproved land, is not
14 more than two thousand seven hundred fifty dollars. In making such
15 recommendations, the banking commission shall consider the prevailing
16 interest rates charged for commercial loans extended to prime borrowers
17 by commercial banks operating in the city. In the case of any such
18 parcel with respect to which the real property taxes are held in escrow
19 and paid to the commissioner of finance by a "mortgage escrow agent," as
20 that term is defined in section fifteen hundred nineteen of the city
21 charter of the preceding municipality as it existed on the first of
22 January in the year next succeeding the effective date of this section,
23 the proposed rate shall be at least six percent per annum greater than
24 such prevailing prime rate, and in the case of all other such parcels,
25 the proposed rate shall be at least equal to such prevailing prime rate.
26 The council may by resolution adopt interest rates to be applicable to
27 the aforementioned parcels and may specify in such resolution the dates
28 on which such interest rates are to take effect. In the event the coun-
29 cil does not adopt interest rates as provided in this subdivision, the
30 interest rates otherwise specified in this section shall be applicable.
31 § 11-224.1 Interest on unpaid real property tax.
32 (a) For real property with an assessed value of eighty thousand
33 dollars or less, if an installment of tax due and payable is not paid by
34 July fifteenth, October fifteenth, January fifteenth or April fifteenth,
35 interest shall be imposed on such unpaid amounts.
36 (b) For real property with an assessed value of over eighty thousand
37 dollars, if an installment of tax due and payable is not paid by July
38 first or January first, interest shall be imposed on such unpaid
39 amounts.
40 (c) If the council does not adopt interest rates by July first, two
41 thousand twenty-five, the rates shall be (i) for real property with an
42 assessed value of eighty thousand dollars or less, seven percent per
43 annum; and (ii) for real property with an assessed value of over eighty
44 thousand dollars, fifteen percent per annum.
45 (d) (i) Any tax or part of a tax that became due before July first,
46 two thousand five and remains unpaid after June thirtieth, two thousand
47 twenty-five, shall continue to accrue interest until paid at the rate
48 applicable under this section.
49 (ii) This section shall not apply to interest accrued before July
50 first, two thousand twenty-five.
51 (e) By May twenty-fifth of each year, the banking commission shall
52 send a written recommendation to the council of a proposed interest rate
53 to be charged for nonpayment of taxes on real property. The commission
54 shall consider the prevailing interest rates charged for commercial
55 loans extended to prime borrowers by commercial banks operating in the
56 city and:
S. 8578 262
1 (i) for real property with an assessed value of eighty thousand
2 dollars or less, shall propose a rate at least equal to such prevailing
3 prime rate;
4 (ii) for real property with an assessed value of over eighty thousand
5 dollars, shall propose a rate of at least six percent per annum greater
6 than such prevailing prime rate.
7 The council may by resolution adopt interest rates to be applicable to
8 the aforementioned properties and may specify in such resolution the
9 date that such rates will take effect.
10 (f) If the tax rate for any fiscal year of the city is not set by the
11 fifteenth of June preceding the start of such fiscal year, interest
12 shall not be charged for the first installment of tax which is due on
13 the first day of July in such fiscal year if such installment is paid on
14 or before the extended payment date. For this purpose, the term
15 "extended payment date" means the date which falls the same number of
16 days after the first day of July in such fiscal year as the number of
17 days the date such tax rate is set falls after such fifteenth day of
18 June.
19 (g) For purposes of this section, property held in the cooperative
20 form of ownership shall not be deemed to have an assessed value of over
21 eighty thousand dollars if the property's assessed value divided by the
22 number of residential dwelling units is eighty thousand dollars or less
23 per unit.
24 § 11-225 Power of tax commission to remit or reduce taxes. The tax
25 commission shall have power to remit or reduce a tax imposed upon real
26 property where lawful cause therefor is shown or where such tax is found
27 to be excessive or otherwise erroneous, but such remission or reduction
28 shall be made only with respect to an assessment for which an applica-
29 tion for correction has been made pursuant to section one hundred
30 sixty-three of the charter, and no such remission or reduction shall be
31 made when a claim to correct the assessment or recover the tax would be
32 barred by passage of time or other adequate defense, or when, at the
33 time that the determination is rendered, applications for correction or
34 other proceedings are pending to review the assessment of such property
35 for more than one subsequent fiscal year, provided, however, the tax
36 commission shall have no power to remit or reduce a tax pursuant to this
37 section more than five years after the last day on which an application
38 for correction could have been filed to appeal the unlawful or erroneous
39 assessment upon which such tax was based. If such tax shall have been
40 paid the commissioner of finance is authorized to refund or credit the
41 amount of any such remission or reduction granted pursuant to this
42 section. When the correction results from an application for correction
43 made by the board of managers of a condominium, a refund may be paid to
44 the board of managers for distribution to the individual unit owners
45 with the consent of such board and on such conditions as the commission-
46 er deems appropriate.
47 § 11-226 Special right of entry; certificate of president. A right of
48 entry upon real property and into buildings and structures at all
49 reasonable times to ascertain the character of the property shall not be
50 allowed to any person acting in behalf of the tax commission, other than
51 the officials mentioned in sections one hundred fifty-six and fifteen
52 hundred twenty-one of the charter of the preceding municipality as it
53 existed on the first of January in the year next succeeding the effec-
54 tive date of this section, unless a certificate therefor, executed in
55 writing and signed by the president of the tax commission, is presented
S. 8578 263
1 by such person to the owner, lessee or occupant of the premises or his
2 agent before entry thereon is made.
3 § 11-227 Duties of authorized employees in examining applicants. a.
4 Employees of the tax commission, when authorized to take testimony on
5 application, shall reduce such testimony to writing.
6 b. Within ten days after the evidence on any application is taken,
7 they shall transmit the application and testimony so taken, with their
8 recommendation, to the tax commission at its main office or such other
9 office as the commission may prescribe.
10 § 11-228 Testimony taken on application to constitute part of record.
11 All written testimony taken by the tax commission, by a commissioner, or
12 by an employee of the commission authorized to take testimony on appli-
13 cations, shall constitute part of the record of the proceedings upon any
14 assessment.
15 § 11-229 Solicitation of retainers prohibited. It shall be unlawful
16 for any person or his or her or its agents or employee, or any person
17 acting on his or her or its behalf, to solicit, or procure through
18 solicitation, either directly or indirectly, any retainer or agreement:
19 (a) Authorizing such person, or his or her or its agent, employee or
20 any person acting on his or her or its behalf, to make application to
21 the commissioner of finance or tax commission for the correction of a
22 tentative or final assessed valuation of real property on behalf of an
23 owner of such property or other person claiming to be aggrieved, or
24 (b) Authorizing such person, or his or her or its agent, employee or
25 any person acting on his or her or its behalf, to appear for such
26 purpose or represent such owner or aggrieved person before such commis-
27 sion or a commissioner or any other officer or employee authorized by
28 law to act upon such application, examine applicants, take testimony,
29 make or recommend the making of a correction of any such assessed valu-
30 ation, or take any other official action in relation to any such
31 correction. Any violation of this section shall be a misdemeanor.
32 § 11-230 Issuance of final determination; limitation of time. Except
33 as otherwise provided in section one hundred sixty-five of the charter
34 of the preceding municipality as it existed on the first of January in
35 the year next succeeding the effective date of this section, the final
36 determination of the tax commission upon any application for the
37 correction of an assessment and upon the evidence taken thereunder
38 shall, where the evidence is taken by the commission or by a commission-
39 er, be rendered within thirty days after the hearing of such application
40 is closed. Where the evidence is taken by an employee of the tax commis-
41 sion authorized to take testimony on applications, the final determi-
42 nation shall be rendered within thirty days after the application and
43 the testimony hereon shall have been filed with the commission at its
44 main office.
45 Immediately upon making a correction of an assessment, the tax commis-
46 sion shall notify the commissioner of finance thereof.
47 § 11-231 Proceeding to review tax assessment; contents of petition. a.
48 Any person or corporation claiming to be aggrieved by the assessed valu-
49 ation of real property may commence a proceeding to review or correct on
50 the merits a final determination of the tax commission by serving on the
51 president of the tax commission, or his or her duly authorized agent, a
52 copy of a verified petition as prescribed by law. No such petition shall
53 be accepted unless, prior to the service thereof, an index number has
54 been obtained from the county clerk. Within ten days after a proceeding
55 has been commenced as hereinbefore provided, the original verified peti-
S. 8578 264
1 tion with proof of service shall be filed in the office of the clerk of
2 the court in which the proceeding is to be heard.
3 b. Such review shall be allowed only on one or more of the following
4 grounds, which must be specified in such petition:
5 1. That the assessment is illegal, and stating the particulars of the
6 alleged illegality, or
7 2. That the assessment is erroneous by reason of over-valuation, or
8 3. That the assessment is erroneous by reason of inequality, in that
9 it has been made at a higher proportionate valuation than the assessment
10 of other real property on the assessment rolls of the city for the same
11 year, and for assessments made after December thirty-first, nineteen
12 hundred eighty-one, other real property within the same class as defined
13 in section eighteen hundred two of the real property tax law, specifying
14 the instances in which such inequality exists and the extent thereof,
15 and stating that the petitioner is or will be injured thereby, or
16 4. That the real property is misclassified, and stating the class in
17 which it is claimed the property should be classified.
18 c. The proceeding shall be maintained against the tax commission
19 either by naming the president and the commissioners of the tax commis-
20 sion individually, or by naming the tax commission of the city of Staten
21 Island generally.
22 d. Such proceeding to review and all proceedings thereunder shall be
23 brought at a special term of the supreme court in the judicial district
24 where the real property so assessed is situated.
25 e. The justice or referee before whom such proceeding shall be heard
26 may inspect the real property which is the subject of the proceeding.
27 § 11-232 Comptroller; rates of interest on taxes and assessments. The
28 comptroller shall not reduce the rate of interest upon any taxes or
29 assessments below the amount fixed by law.
30 § 11-233 Cancellation of unpaid taxes. When it shall appear to the
31 comptroller that the unpaid taxes or assessments, or both, together with
32 the interest and penalties thereon which may have been levied upon a
33 parcel of real estate subject to easements which were in existence prior
34 to the levying of such taxes or assessments, equal or exceed the sum for
35 which, under ordinary circumstances, such parcel of real estate would
36 sell subject to such easements, the comptroller, with the written
37 approval of the corporation counsel, may settle and adjust such unpaid
38 taxes or assessments, or both, with the interest and penalties thereon,
39 and when it shall appear to the comptroller that such parcel of real
40 estate would sell under ordinary circumstances subject to such easements
41 for only a nominal sum, then the comptroller with the written approval
42 of the corporation counsel may cancel such unpaid taxes and assessments
43 together with the interest and penalties thereon.
44 § 11-235 Board of estimate; power to cancel taxes, assessments and
45 water rents. The board of estimate, upon the written certificate of the
46 comptroller approving the same, with whom application for relief under
47 this section shall be filed, in its discretion and upon such terms as it
48 may deem proper, by unanimous vote, may cancel and annul all taxes,
49 assessments and water rents and sales to the city of any or all of the
50 same which now are or may hereafter become a lien against any real
51 estate owned by any corporation, entitled to exemption of such real
52 estate owned by it from local taxation under the provisions of the real
53 property tax law formerly contained in subdivision six of section four
54 of the tax law, provided that all taxes and water rents from which
55 relief is asked be apportioned as of the date such corporation took
56 title to such real estate, and that such taxes and water rents so appor-
S. 8578 265
1 tioned to the period before such date, and all assessments which became
2 a lien before such date, be paid. The commissioner of finance shall mark
3 the city's books and rolls of taxes, assessments and water rents in
4 accordance with the determination of the board of estimate in every case
5 in which action shall be taken under the provisions of this section.
6 § 11-236 Powers of board of estimate to cancel taxes, water rents and
7 assessments. The council by local law may authorize the board of esti-
8 mate, by a unanimous vote, upon the written consent of the comptroller,
9 to cancel and annul any taxes, water rents and assessments constituting
10 a lien against any real property owned by a corporation whose property
11 is exempt from taxation under the provisions of the real property tax
12 law, notwithstanding that such taxes, water rents or assessments shall
13 have become a lien against such real property while owned by a person or
14 corporation not exempt under such section. The commissioner of finance
15 shall mark the city's books and rolls of taxes and assessments in
16 accordance with the determination of the board of estimate under such
17 local law.
18 § 11-237 Cancellation of assessments, water and sewer rents on real
19 property acquired by tax enforcement foreclosure proceedings. Upon the
20 cancellation of unpaid assessments, water and sewer rents by the city
21 collector pursuant to section 11-353 of this title, the comptroller
22 shall charge the unpaid amounts for assessments for local improvements,
23 so cancelled, to the surplus in the appropriate assessment fund; the
24 unpaid amounts for water charges, meter setting and repair, meter glass-
25 es and sewer rents, so cancelled, shall be deducted from the accounts
26 receivable of the appropriate fund.
27 § 11-238 Real property tax surcharge on absentee landlords. a. Impo-
28 sition of surcharge. A real property tax surcharge is hereby imposed on
29 class one property, as defined in section eighteen hundred two of the
30 real property tax law, excluding vacant land, that provides rental
31 income and is not the primary residence of the owner or owners of such
32 class one property, or the primary residence of the parent or child of
33 such owner or owners, in an amount equal to zero percent of the net real
34 property taxes for fiscal years beginning on or after the first of July
35 in the second year next succeeding the effective date of this section.
36 As used in this section, "net real property tax" means the real property
37 tax assessed on class one property after deduction for any exemption or
38 abatement received pursuant to the real property tax law or this title.
39 b. Rental income, primary residence and/or relationship to owner or
40 owners. The property shall be deemed to be the primary residence of the
41 owner or owners thereof, if such property would be eligible to receive
42 the real property tax exemption pursuant to section four hundred twen-
43 ty-five of the real property tax law, regardless of whether such owner
44 or owners has filed an application for, or the property is currently
45 receiving, such exemption. Proof of primary residence and the resident's
46 or residents' relationship to the owner or owners and the absence of
47 rental income shall be in the form of a certification as required by the
48 rules of the commissioner.
49 c. Rules. The department of finance shall have, in addition to any
50 other functions, powers and duties which have been or may be conferred
51 on it by law, the power to make and promulgate rules to carry out the
52 purposes of this section, including, but not limited to, rules related
53 to the timing, form and manner of any certification required to be
54 submitted under this section.
55 d. Penalties. 1. Notwithstanding any provision of any general, special
56 or local law to the contrary, an owner or owners shall be personally
S. 8578 266
1 liable for any taxes owed pursuant to this section whenever such owner
2 or owners fail to comply with this section or the rules promulgated
3 hereunder, or makes a false or misleading statement or omission and the
4 commissioner determines that such act was due to the owner or owners'
5 willful neglect, or that under such circumstances such act constituted a
6 fraud on the department. The remedy provided herein for an action in
7 person shall be in addition to any other remedy or procedure for the
8 enforcement of collection of delinquent taxes provided by general,
9 special or local law.
10 2. If the commissioner should determine, within three years from the
11 filing of an application or certification pursuant to this section, that
12 there was a material misstatement on such application or certification,
13 he or she shall impose a penalty tax against the property of five
14 hundred dollars, in accordance with the rules promulgated hereunder.
15 e. Cessation of use. In the event that a property granted an exemption
16 from taxation pursuant to this section ceases to be used as the primary
17 residence of such owner or owners or his, her or their parent or child,
18 or produces rental income, such owner or owners shall so notify the
19 commissioner.
20 SUBCHAPTER 2
21 EXEMPTIONS FROM REAL PROPERTY TAXATION
22 PART 1
23 EXEMPTIONS FOR CERTAIN RESIDENTIAL PROPERTY
24 § 11-241 Discrimination in tax exempt projects. No exemption from
25 taxation, for any project, other than a project hitherto agreed upon or
26 contracted for, shall be granted to a housing company, insurance compa-
27 ny, redevelopment company or redevelopment corporation, which shall
28 directly or indirectly, refuse, withhold from, or deny to any person any
29 of the dwelling or business accommodations in such project or property,
30 or the privileges and services incident to occupancy thereof, on account
31 of the race, color or creed of any such person.
32 Any exemption from taxation hereafter granted shall terminate sixty
33 days after a finding by the supreme court of the state of New York that
34 such discrimination is being or has been practiced in such project or
35 property; if within sixty days such discrimination shall have been
36 ended, then the exemption shall not terminate.
37 § 11-242 Exemption and tax abatement in regard to improvements of
38 substandard dwellings. a. As used in this section, the following terms
39 shall have the following meanings: 1. "Alteration" and "improvement": a
40 physical change in an existing dwelling other than painting, ordinary
41 repairs, normal replacements or maintenance items.
42 2. "Existing dwelling": a class A multiple dwelling in existence prior
43 to the commencement of alterations for which tax exemption and abatement
44 is claimed under the terms of this section and for which a valuation
45 appears on the annual record of assessed valuation of the city for the
46 fiscal year nineteen hundred fifty-five--nineteen hundred fifty-six.
47 3. "Start" on alteration or improvement: begin any physical operation
48 undertaken for the purpose of making alterations or improvements to an
49 existing dwelling.
50 4. "Complete" an alteration or improvement: conclude or terminate any
51 physical operation such as is referred to in subparagraph three of this
52 paragraph, to an extent or degree which renders such building capable of
53 use for the purpose for which the improvements or alterations were
54 intended.
55 5. "Multiple dwelling": multiple dwellings as that term is defined in
56 section four of the multiple dwelling law.
S. 8578 267
1 b. Any increase in assessed valuation resulting from alterations and
2 improvements to existing dwellings to eliminate presently existing
3 unhealthy or dangerous conditions in any existing dwelling or to replace
4 inadequate and obsolete sanitary facilities in any such dwelling, any of
5 which represent fire or health hazards, or to provide central or other
6 appropriate and approved heating, except insofar as the gross cubic
7 content of the building is increased thereby, shall be exempt from taxa-
8 tion for local purposes for a period of twelve years after the taxable
9 status date immediately following the completion of the alterations and
10 improvements, to the extent that such increase in assessed valuation
11 result from the reasonable cost of such alterations and improvements,
12 providing that construction is started after March first, nineteen
13 hundred fifty-five and completed before December thirty-first, nineteen
14 hundred fifty-nine. The assessed valuation allocated to such dwelling
15 after such alterations and improvements during such period of twelve
16 years, exclusive of the increase in valuation which is exempted, shall
17 not exceed the valuation of the previously existing dwelling appearing
18 on the assessment rolls after the taxable status date immediately
19 preceding the commencement of such alterations and improvements. The
20 assessed valuation of the land occupied by such dwelling and any
21 increase in valuation resulting from alterations and improvements other
22 than those made pursuant to this section, shall not be affected by the
23 provisions of this section.
24 c. The taxes upon any such property, including the land, shall be
25 abated and reduced by an amount equal to eight and one-third per centum
26 of the reasonable cost of such alterations and improvements each year
27 for a period of nine years commencing with the first tax bill for the
28 first tax year in which the exemption herein provided is effective, but
29 such abatement of taxes in any consecutive twelve-month period shall in
30 no event exceed the amount of taxes payable in such period.
31 d. The department of buildings shall determine and certify the reason-
32 able cost of any such alterations and improvements and for that purpose
33 may adopt rules and regulations, administer oaths to and take testimony
34 of any person, including but not limited to the owner of such property,
35 may issue subpoenas requiring the attendance of such persons and the
36 production of such books, papers or other documents as the department
37 shall deem necessary, may make preliminary estimates of the maximum
38 reasonable cost of such alterations and improvements, may establish
39 maximum allowable costs for specified units, fixtures or work in such
40 alterations or improvements, and may require the submission of plans and
41 specifications of such alteration and improvements before the start
42 thereof. Application forms for the benefits of this section shall be
43 filed with the tax commission between February first and March fifteenth
44 and the tax commission shall certify to the city collector the amount of
45 taxes to be abated and reduced, pursuant to the certification of the
46 commissioner of buildings as herein provided. No such application shall
47 be accepted unless accompanied by copies of certificates of the city
48 planning commission and the commissioner of buildings, as provided in
49 this subdivision and in subdivision e of this section.
50 e. To the end that alterations and improvements in such property shall
51 interfere as little as practicable with urgently needed public improve-
52 ments, and the clearance and rebuilding of substandard and insanitary
53 areas, and shall be confined to multiple dwellings which are struc-
54 turally sound, comply with applicable provisions of law, and are
55 provided with adequate central or other appropriate and approved heating
56 exemption or abatement from taxation hereunder shall be restricted to
S. 8578 268
1 dwellings which: (1) the city planning commission certify will not undu-
2 ly interfere with projected public improvements or the clearance and
3 rebuilding of substandard and insanitary areas which certification shall
4 be evidenced by a certificate describing the property involved and shall
5 be issued upon application to such city planning commission in such
6 manner and in such form as may be prescribed by such city planning
7 commission, and (2) which the department of buildings shall certify to
8 be structurally sound, comply with applicable provisions of law and
9 provide central or other appropriate and approved heating, which certif-
10 ication shall be evidenced by a certificate describing the property
11 involved and shall be issued upon application to the department of
12 buildings in such manner and in such form as may be prescribed by such
13 department. Where the improvements and alterations include or benefit
14 that part of a building which is occupied by stores or used for commer-
15 cial purposes, the cost shall be apportioned so that the benefits of
16 this section shall not be provided for the cost of the improvements or
17 alterations made for store or commercial purposes.
18 f. Notwithstanding the provisions of the multiple dwelling law, or any
19 local law, ordinance, provisions of this code, rule or regulation, any
20 dwelling to which alterations and improvements are made pursuant to this
21 section and which did not require a certificate of occupancy on April
22 second, nineteen hundred forty-five, may be occupied lawfully after such
23 date upon the completion of such alterations and improvements without
24 such a certificate being obtained, provided, however, that such alter-
25 ations and improvements shall have been made in conformity with law and
26 the applicable provisions for fire protection required by articles six
27 and seven of the multiple dwelling law.
28 g. No owner of a dwelling to which the benefits of this section shall
29 be applied nor any agent, employee, manager or officer of such owner
30 shall directly or indirectly deny to any person because of race, color,
31 creed, or religion any of the dwelling accommodations in such property
32 or any of the privileges or services incident to occupancy therein.
33 h. Each agency to which functions are assigned by this section may
34 adopt rules and regulations for the effectuation of the purposes of this
35 section, and a copy, for each member of the council, of such rules and
36 regulations shall be filed with the clerk of the council prior to
37 promulgation.
38 i. Any person who shall knowingly and wilfully make any false state-
39 ment as to any material matter in any application for the benefits of
40 this section shall be guilty of an offense punishable by a fine of not
41 more than five hundred dollars or imprisonment for not more than ninety
42 days, or both.
43 j. The benefits of this section shall not apply to any multiple dwell-
44 ing which is not subject to the provisions of the emergency housing rent
45 control law or its successor statute for the city of Staten Island,
46 provided that this subdivision shall not operate to rescind any benefits
47 granted by the tax commission under this section prior to July first,
48 nineteen hundred fifty-eight; and further provided that where the bene-
49 fits herein provided were or are granted by the tax commission on or
50 after July first, nineteen hundred fifty-eight to any multiple dwelling
51 which is decontrolled subsequent to the granting of such benefits, the
52 tax commission shall withdraw such benefits, effective upon the
53 commencement of the first tax year following the tax year in which such
54 multiple dwelling is decontrolled.
S. 8578 269
1 § 11-243 Reextension of exemption and tax abatement in regard to
2 improvements of substandard dwellings. a. As used in this section, the
3 following terms shall have the following meanings:
4 1. "Alteration" and "improvement": a physical change in an existing
5 dwelling other than painting, ordinary repairs, normal replacement of
6 maintenance items, provided, however, that ordinary repairs and normal
7 replacement of maintenance items, as defined by rules adopted by the
8 department of housing preservation and development pursuant to subdivi-
9 sion m of this section, shall be eligible for tax exemption and tax
10 abatement under this section provided that repairs and maintenance
11 items:
12 (1) were started and completed within a twelve-month period,
13 (2) were made to any common area of the dwelling premises concurrently
14 with a major capital improvement thereto, as defined by rules adopted by
15 the department of housing preservation and development pursuant to
16 subdivision m of this section,
17 (3) require the issuance of a permit for at least one item thereof by
18 any city agency, and
19 (4) the amount of money expended thereon shall not exceed two times
20 the amount expended on the major capital improvement performed concur-
21 rently therewith.
22 "Alteration" and "improvement" shall also mean "an abatement" of lead-
23 based paint hazards, as defined in part 745 of title forty of the code
24 of federal regulations or any successor regulations in any existing
25 dwelling including any common areas, and shall include an "inspection"
26 and "risk assessment" for lead-based paint hazards, as defined in such
27 part, in a dwelling unit whether such unit is vacant or occupied but
28 shall not include any work performed to comply with a notice of
29 violation issued for a violation of article fourteen of subchapter two
30 of chapter two of title 27 of the administrative code of the city of New
31 York. For purposes of this paragraph, the term, "targeted area" shall
32 mean the geographical area of New York city that is determined by the
33 department of health and mental hygiene to have high rates of children
34 with environmental intervention blood lead levels. The department of
35 housing preservation and development shall establish two schedules of
36 certified reasonable costs for items that are included in an abatement
37 of lead-based paint hazards, one covering such abatement that is
38 performed in an eligible dwelling unit or common area located in the
39 targeted area, and one covering such abatement that is performed in an
40 eligible dwelling unit or common area that is not located in the target-
41 ed area. The first such schedules shall be promulgated by the department
42 of housing preservation and development within 180 days of the effective
43 date of this section and shall be used for any such abatements that are
44 commenced on or after August 2, 2004. Such schedules shall be reviewed
45 by such department biennially following their effective dates and
46 amended as necessary. Notwithstanding any other provision of law or
47 rule, an owner who performs an abatement of lead-based paint hazards
48 pursuant to this paragraph shall not be required to comply with subdivi-
49 sion y of this section which provides for filing of a notice of intent
50 form prior to the commencement of work, and no additional fee or penalty
51 shall be due and owing the department at the time of issuance of a
52 certificate of eligibility and reasonable cost for failure to file such
53 notice of intent.
54 2. "Existing dwelling": except as hereinafter provided in subdivision
55 d of this section, a class A multiple dwelling or a building consisting
56 of one or two dwelling units over space used for commercial occupancy in
S. 8578 270
1 existence prior to the commencement of alterations for which tax
2 exemption and abatement is claimed under the terms of this section and
3 for which a valuation appears on the annual record of assessed valuation
4 of the city for the fiscal year immediately preceding the commencement
5 of such alterations and improvements.
6 3. "Start" an alteration or improvement: begin any physical operation
7 undertaken for the purpose of making alterations or improvements to an
8 existing dwelling.
9 4. "Complete" an alteration or improvement: conclude or terminate any
10 physical operation such as is referred to in paragraph three of this
11 subdivision, to an extent or degree which renders such building capable
12 of use for the purpose for which the improvements or alterations were
13 intended.
14 5. "Multiple dwelling": multiple dwellings as that term is defined in
15 section four of the multiple dwelling law.
16 6. "Moderate rehabilitation": shall mean a scope of work which
17 (a) includes a building-wide replacement of a major component of one
18 of the following systems:
19 (1) Elevator
20 (2) Heating
21 (3) Plumbing
22 (4) Wiring
23 (5) Window; and
24 (b) has a certified reasonable cost of not less than twenty-five
25 hundred dollars, exclusive of any certified reasonable cost for ordinary
26 repairs, for each dwelling unit in existence at the commencement of the
27 rehabilitation; except that the department of housing preservation and
28 development may establish a minimum certified reasonable cost to be
29 greater than twenty-five hundred dollars per dwelling unit pursuant to
30 subdivision m of this section.
31 7. "Substantially occupied": shall mean an occupancy of not less than
32 sixty percent of all dwelling units immediately prior and during reha-
33 bilitation, except that the department of housing preservation and
34 development may establish higher percentages of occupancy pursuant to
35 subdivision m of this section.
36 8. "Private dwelling" shall mean any building or structure designed
37 and occupied for residential purposes by not more than two families.
38 Private dwellings shall also be deemed to include a series of one-family
39 or two-family dwelling units each of which faces or is accessible to a
40 legal street or public thoroughfare, if each such dwelling unit is
41 equipped as a separate dwelling unit with all essential services, and if
42 each such unit is arranged so that it may be approved as a legal one-fa-
43 mily or two-family dwelling.
44 b. Subject to the limitations provided in subdivision d of this
45 section and the restrictions in this section on conversion of buildings
46 used in whole or in part for single room occupancy, any increase in the
47 assessed valuation of real property shall be exempt from taxation for
48 local purposes to the extent such increase results from the reasonable
49 cost of: (1) the conversion of a class B multiple dwelling to a class A
50 multiple dwelling except insofar as the gross cubic content of such
51 building is increased thereby; or (2) the conversion of any nonresiden-
52 tial building or structure situated in the county of Richmond to a class
53 A multiple dwelling except insofar as the gross cubic content of such
54 building or structure is increased thereby; or (3) alterations or
55 improvements to the exterior of an otherwise eligible building or struc-
56 ture visible from a public street pursuant to a permit issued by the
S. 8578 271
1 landmarks commission with respect to a designated historic or landmark
2 site or structure; or (4) alterations or improvements constituting a
3 moderate rehabilitation of a substantially occupied class A multiple
4 dwelling except insofar as the gross cubic content of such building or
5 structure is increased thereby; or (5) alterations or improvements to an
6 otherwise eligible building or structure commenced after January first,
7 nineteen hundred eighty designed to conserve the use of fuel, electric-
8 ity or other energy sources or to reduce demand for electricity, includ-
9 ing the installation of meters for purposes of measuring the amount of
10 electricity consumed for each dwelling unit, and conversions of direct
11 metering to a system that includes a master meter and submeters in any
12 cooperative, condominium, or housing development fund company organized
13 under article eleven of the private housing finance law; or (6) alter-
14 ations or improvements to existing dwellings to eliminate existing
15 unhealthy or dangerous conditions in any such existing dwelling or
16 replace inadequate and obsolete sanitary facilities in any such existing
17 dwelling, any of which represents fire or health hazards, including as
18 improvements asbestos abatement to the extent such asbestos abatement is
19 required by federal, state or local law, except insofar as the gross
20 cubic content of such existing dwelling is increased thereby; or (7)
21 conversion of residential units qualified for the protection of article
22 seven-C of the multiple dwelling law in buildings or portions thereof
23 registered with the New York city loft board as interim multiple dwell-
24 ings pursuant to such article to units which are in compliance with the
25 standards of safety and fire protection set forth in article seven-B of
26 the multiple dwelling law or to units which have a certificate of occu-
27 pancy as class A multiple dwellings; or (8) alterations or improvements
28 commenced on or after September first, nineteen hundred eighty-seven
29 constituting a substantial rehabilitation of a class A multiple dwell-
30 ing, or a conversion of a building or structure into a class A multiple
31 dwelling, as part of a program to provide housing for low and moderate
32 income households as defined by the department of housing preservation
33 and development pursuant to the rules and regulations promulgated pursu-
34 ant to subdivision m of this section, provided that such alterations or
35 improvements or conversions shall be aided by a grant, loan or subsidy
36 from any federal, state or local agency or instrumentality, including,
37 in the discretion of the department of housing preservation and develop-
38 ment, a subsidy in the form of a below market sale from the city of New
39 York; or (9) alterations or improvements to any private dwelling or
40 conversion of any private dwelling to a multiple dwelling or conversion
41 of any multiple dwelling to a private dwelling, provided that such
42 alterations, improvements or conversions are part of a project that has
43 applied for or is receiving benefits pursuant to this section and shall
44 be aided by a grant, loan or subsidy from any federal, state or local
45 agency or instrumentality. Such conversions, alterations or improvements
46 shall be completed within thirty-six months after the date on which same
47 shall be started except that such thirty-six month limitation shall not
48 apply to conversions of residential units which are registered with the
49 loft board in accordance with article seven-C of the multiple dwelling
50 law pursuant to paragraph eight of this subdivision. Provided, however,
51 a sixty-month period for completion shall be available for alterations
52 or improvements undertaken by a housing development fund company organ-
53 ized pursuant to article eleven of the private housing finance law,
54 which are carried out with the substantial assistance of grants, loans
55 or subsidies from any federal, state or local governmental agency or
56 instrumentality or which are carried out in a property transferred from
S. 8578 272
1 the city of New York or the city of Staten Island if alterations and
2 improvements are completed within seven years after the date of trans-
3 fer. In addition, the department of housing preservation and development
4 may grant an extension of the period of completion for any project
5 carried out with the substantial assistance of grants, loans or subsi-
6 dies from any federal, state or local governmental agency or instrumen-
7 tality, if such alterations, improvements or conversions are completed
8 within sixty months from commencement of construction. Provided,
9 further, that such conversions, alterations or improvements shall in any
10 event be completed prior to the thirty-first of December in the third
11 year next succeeding the effective date of this section. Exemption for
12 conversions, alterations or improvements pursuant to paragraph one, two,
13 three, four, six, seven, eight or ten of this subdivision shall continue
14 for a period not to exceed fourteen years and begin no sooner than the
15 first tax period immediately following the completion of such conver-
16 sions, alterations or improvements. Exemption for alterations or
17 improvements pursuant to paragraph five or nine of this subdivision
18 shall continue for a period not to exceed thirty-four years and shall
19 begin no sooner than the first tax period immediately following the
20 completion of such alterations or improvements. Such exemption shall be
21 equal to the increase in the valuation, which is subject to exemption in
22 full or proportionally under this subdivision for ten or thirty years,
23 whichever is applicable. After such period of time, the amount of such
24 exempted assessed valuation of such improvements shall be reduced by
25 twenty percent in each succeeding year until the assessed value of the
26 improvements is fully taxable. Provided, however, exemption for any
27 conversions, alterations or improvements, which are aided by a loan or
28 grant under article eight, eight-A, eleven, twelve, fifteen, or twenty-
29 two of the private housing finance law, section six hundred ninety-six-a
30 or section ninety-nine-h of the general municipal law, or section three
31 hundred twelve of the housing act of nineteen hundred sixty-four (42
32 U.S.C.A. 1452b), or the Cranston-Gonzalez national affordable housing
33 act, (42 U.S.C.A. 12701 et. seq.), or started after July first, nineteen
34 hundred eighty-three by a housing development fund company organized
35 pursuant to article eleven of the private housing finance law which are
36 carried out with the substantial assistance of grants, loans or subsi-
37 dies from any federal, state or local governmental agency or instrumen-
38 tality or which are carried out in a property transferred from the city
39 of New York and where alterations and improvements are completed within
40 seven years after the date of transfer may commence at the beginning of
41 any tax period subsequent to the start of such conversions, alterations
42 or improvements and prior to the completion of such conversions, alter-
43 ations or improvements. The assessed valuation of the land occupied by
44 such dwelling and any increase in assessed valuation resulting from
45 conversions, alterations, or improvements other than those made pursuant
46 to this section shall not be affected by the provisions of this section.
47 b-1. Notwithstanding the provisions of subdivision b of this section,
48 alterations, improvements or conversions of any building or structure
49 that are eligible for benefits pursuant to subdivision b of this section
50 except insofar as the gross cubic content of such building or structure
51 is increased thereby shall be eligible for such benefits insofar as the
52 gross cubic content of such building or structure is increased thereby
53 provided that:
54 (1) for all tax lots now existing or hereafter created, at least fifty
55 percent of the floor area of the completed building or structure
56 consists of the pre-existing building or structure that was converted,
S. 8578 273
1 altered or improved in accordance with subdivision b of this section,
2 and
3 (2) for tax lots now existing or hereafter created within the follow-
4 ing area in the borough of Manhattan, such conversions, alterations or
5 improvements are aided by a grant, loan or subsidy from any federal,
6 state or local agency or instrumentality: beginning at the intersection
7 of the United States pierhead line in the Hudson river and the center
8 line of Chambers street extended, thence easterly to the center line of
9 Chambers street and continuing along the center line of Chambers street
10 to the center line of Centre street, thence southerly along the center
11 line of Centre street to the center line of the Brooklyn Bridge to the
12 intersection of the Brooklyn Bridge and the United States pierhead line
13 in the East river, thence northerly along the United States pierhead
14 line in the East river to the intersection of the United States pierhead
15 line in the East river and the center line of one hundred tenth street
16 extended, thence westerly to the center line of one hundred tenth street
17 and continuing along the center line of one hundred tenth street to its
18 westerly terminus, thence westerly to the intersection of the center
19 line of one hundred tenth street extended and the United States pierhead
20 line in the Hudson river, thence southerly along the United States pier-
21 head line in the Hudson river to the point of beginning.
22 (3) For purposes of this subdivision, "floor area" shall mean the
23 horizontal areas of the several floors or any portion thereof of a
24 dwelling or dwellings and accessory structures on a lot measured from
25 the exterior faces of exterior walls or from the center line of party
26 walls.
27 (4) Nothing in this subdivision shall be construed to provide tax
28 abatement benefits pursuant to subdivision c of this section for the
29 costs attributable to the increased cubic content in any such building
30 or structure.
31 c. (1) Except as provided in paragraphs two, three and four of this
32 subdivision, the taxes upon any real property, including the land, may
33 be abated each year for a period of not more than twenty years by an
34 amount no greater than eight and one-third per centum of the reasonable
35 cost of eligible conversions, alterations or improvements provided in
36 paragraphs one through eight and paragraph ten of subdivision b of this
37 section provided that the abatement in taxes in any consecutive twelve-
38 month period shall in no event exceed the amount of taxes payable in
39 such twelve-month period; and provided further that alterations or
40 improvements pursuant to paragraph four of subdivision b of this section
41 shall only receive the benefits of this section if construction
42 commenced after January first, nineteen hundred seventy-eight and that
43 in no event shall the aggregate abatement exceed ninety per centum of
44 the reasonable cost of conversions, alterations or improvements provided
45 in paragraphs one, three, four, six, seven, and ten of subdivision b of
46 this section, or exceed fifty per centum of the reasonable cost of
47 conversions pursuant to paragraph one of subdivision b of this section
48 if construction commenced after January first, nineteen hundred eighty-
49 two or exceed fifty per centum of the reasonable cost of conversions
50 pursuant to paragraphs two and eight of subdivision b of this section,
51 or exceed one hundred per centum of the reasonable cost of alterations
52 or improvements pursuant to paragraph five of subdivision b of this
53 section provided that where alterations or improvements pursuant to
54 paragraphs four and six of subdivision b of this section are done in
55 conjunction with a conversion pursuant to paragraph two of subdivision b
56 of this section, the aggregate abatement shall not exceed fifty per
S. 8578 274
1 centum of the reasonable cost. Notwithstanding the foregoing, the taxes
2 upon real property, including the land may be abated for a period of not
3 more than twenty years at eight and one-third per centum of the reason-
4 able cost of conversions where construction actually commenced in good
5 faith prior to July first, nineteen hundred eighty pursuant to an alter-
6 ation permit issued by the department of buildings prior to July first,
7 nineteen hundred eighty provided that the aggregate abatement shall not
8 exceed ninety per centum of the reasonable cost thereof and provided
9 further that in no event shall the abatement in taxes in any twelve-
10 month period exceed the amount of taxes payable in such twelve-month
11 period. In no event, however, shall the aggregate abatement for conver-
12 sions, alterations or improvements pursuant to subdivision b of this
13 section exceed such dollar limit per existing class A dwelling unit or
14 additional unit created by conversion to a class A multiple dwelling as
15 may be established pursuant to rules and regulations promulgated by the
16 department of housing preservation and development pursuant to subdivi-
17 sion m of this section. Only those items of work set forth in the item-
18 ized cost breakdown schedule contained in rules and regulations promul-
19 gated by the department of housing preservation and development pursuant
20 to subdivision m of this section shall be eligible for tax abatement.
21 Such abatement shall commence on the later of July first, nineteen
22 hundred seventy-eight or the first day of the first tax quarter follow-
23 ing the completion of such construction and the filing for benefits as
24 provided in subdivision h of this section except that such period of
25 abatement may commence on the later of the first day of the first tax
26 quarter following commencement of any conversion, alteration or improve-
27 ment or (i) July first, nineteen hundred seventy-six, if aided by a loan
28 pursuant to article eight of the private housing finance law and
29 completed after December thirty-first, nineteen hundred seventy-five; or
30 (ii) July first, nineteen hundred seventy-seven, if aided by a loan
31 pursuant to article fifteen of the private housing finance law; or (iii)
32 July first, nineteen hundred eighty, if aided by a loan pursuant to
33 article eight-A of the private housing finance law; or (iv) July first,
34 nineteen hundred eighty, if aided by a loan pursuant to section three
35 hundred twelve of the housing act of nineteen hundred sixty-four (42
36 U.S.C.A. §1452b); or (v) July first, nineteen hundred ninety-two, if
37 started after such date and aided by a loan or grant under article elev-
38 en, twelve, or twenty-two of the private housing finance law, section
39 six hundred ninety-six-a or section ninety-nine-h of the general munici-
40 pal law, or the Cranston-Gonzalez national affordable housing act (42
41 U.S.C.A. 12701 et seq.); or (vi) July first, nineteen hundred eighty-
42 eight, if started after such date by or on behalf of a company not qual-
43 ified under any of the above provisions, which is a not-for-profit
44 corporation qualified pursuant to section 501(c)(3) of the internal
45 revenue code and which has entered into a regulatory agreement with the
46 local housing agency requiring operation of the property as housing for
47 low and moderate income persons and families.
48 (2) In the case of alterations or improvements pursuant to paragraph
49 five of subdivision b of this section which are carried out with the
50 substantial assistance of grants, loans or subsidies from any federal,
51 state or local agency or instrumentality or any not-for-profit philan-
52 thropic organization one of whose primary purposes is providing low or
53 moderate income housing or financed with mortgage insurance by the New
54 York city residential mortgage insurance corporation or the state of New
55 York mortgage agency or pursuant to a program established by the federal
56 housing administration for rehabilitation of existing multiple dwellings
S. 8578 275
1 in a neighborhood strategy area as defined by the United States depart-
2 ment of housing and urban development, the abatement of taxes on such
3 property, including the land, shall not exceed the lesser of the actual
4 cost of the alterations or improvements or one hundred fifty per centum
5 of the certified reasonable cost of the alterations or improvements, as
6 determined under regulations of the department of housing preservation
7 and development, and the annual abatement of taxes shall not exceed
8 twelve and one-half per centum of such certified reasonable cost,
9 provided that such abatement shall not be effective for more than twenty
10 years and the annual abatement of taxes in any consecutive twelve-month
11 period shall in no event exceed the amount of taxes payable in such
12 twelve-month period.
13 (3) In the case of alterations or improvements carried out with the
14 substantial assistance of grants, loans or subsidies from any federal,
15 state or local agency or instrumentality or any not-for-profit philan-
16 thropic organization one of whose primary purposes is providing low or
17 moderate income housing, or financed with mortgage insurance by the New
18 York city residential mortgage insurance corporation or the state of New
19 York mortgage agency or pursuant to a program established by the federal
20 housing administration for rehabilitation of existing multiple dwellings
21 in a neighborhood strategy area as defined by the United States depart-
22 ment of housing and urban development where such alterations or improve-
23 ments are done on property located in census tracts in which seventy-
24 five percent or more of the population live in households which earn
25 fifty percent or less of the median household income of the city, the
26 abatement of taxes on such property, including the land, shall not
27 exceed the lesser of the actual cost of the alterations or improvements
28 or one hundred fifty per centum of the certified reasonable cost of the
29 alterations or improvements, as determined under regulations of the
30 department of housing preservation and development, and the annual
31 abatement of taxes shall not exceed twelve and one-half per centum of
32 such certified reasonable cost, provided that such abatement shall not
33 be effective for more than twenty years and the annual abatement of
34 taxes in any consecutive twelve-month period shall in no event exceed
35 the amount of taxes payable in such twelve-month period.
36 (4) In the case of alterations, improvements or conversions pursuant
37 to paragraph eight of subdivision b of this section, the abatement of
38 taxes on such property, including the land, shall not exceed the lesser
39 of the actual cost of the alterations or improvements or one hundred
40 fifty per centum of the certified reasonable cost of the alterations or
41 improvements, as determined under regulations of the department of hous-
42 ing preservation and development, and the annual abatement of taxes
43 shall not exceed twelve and one-half per centum of such certified
44 reasonable cost, provided that such abatement shall not be effective for
45 more than twenty years and the annual abatement of taxes in any consec-
46 utive twelve-month period shall in no event exceed the amount of taxes
47 payable in such twelve-month period.
48 d. The benefits of this section shall apply:
49 (1) to any multiple dwelling which is altered, improved or increased
50 in valuation with aid of a loan provided by the city of New York or the
51 city of Staten Island, the New York city housing development corporation
52 or the United States department of housing and urban development for the
53 elimination of conditions dangerous to human life or detrimental to
54 health, including nuisances as defined in section three hundred nine of
55 the multiple dwelling law, or other rehabilitation or improvement wheth-
56 er or not all of the units thereof were in existence prior to rehabili-
S. 8578 276
1 tation pursuant to the provisions of: (i) article two, eight or eight-A
2 of the private housing finance law provided that such dwelling is made
3 available solely to persons or families of low income as defined in said
4 articles, (ii) article twelve of the private housing finance law, (iii)
5 article fifteen of the private housing finance law or (iv) any federal
6 law where the multiple dwelling is supervised or regulated by the United
7 States department of housing and urban development.
8 (2) except as hereinafter provided, to any building or structure which
9 is converted to a class A multiple dwelling or to any existing dwelling
10 which is substantially rehabilitated, and further provided that the
11 rents subsequent to conversion or substantial rehabilitation shall not
12 exceed such amount as may be fixed: (i) by the United States department
13 of housing and urban development, (ii) pursuant to the private housing
14 finance law of the state of New York, or (iii) pursuant to chapter three
15 or chapter four of title twenty-six of the code of the preceding munici-
16 pality, provided that the initial legal regulated rent for the dwelling
17 units shall be the rent charged and paid by the initial tenant and
18 registered with the New York state division of housing and community
19 renewal. Buildings or structures which are converted to class A multiple
20 dwellings and existing dwellings which are substantially rehabilitated
21 shall contain bedrooms in a number equal to at least fifty percent of
22 the apartments created where an alteration permit has been issued by the
23 department of buildings prior to April first, nineteen hundred eighty
24 and seventy-five percent of the apartments created where an alteration
25 permit has been issued by the department of buildings on or after April
26 first, nineteen hundred eighty provided, however, that if a building or
27 structure is converted from a non-residential use to a class A multiple
28 dwelling and the units therein contain an average floor area of one
29 thousand square feet, such requirement as to the number of bedrooms
30 shall not be applicable and if an existing dwelling is substantially
31 rehabilitated, the seventy-five percent bedroom requirement shall be
32 reduced to the extent its application would necessitate a reduction in
33 the number of units which are contained in the existing dwelling prior
34 to commencement of substantial rehabilitation.
35 (3) to any multiple dwelling, building or structure otherwise eligible
36 for any of the benefits of this section which:
37 (i) is operated exclusively for the benefit of persons or families who
38 are or will be entitled to occupancy by reason of ownership of stock or
39 membership in the corporate owner, or for the benefit of such persons or
40 families and other persons or families entitled to occupancy under
41 applicable provisions of law without ownership of stock or membership in
42 the corporate owner, or (ii) is owned as a condominium and is occupied
43 as the residence or home of three or more families living independently
44 of each other; provided, however, that, in addition to all other condi-
45 tions of eligibility for the benefits of this section, except for multi-
46 ple dwellings in which units have been newly created by substantial
47 rehabilitation of vacant buildings or conversions of non-residential
48 buildings, the availability of benefits under this section for such
49 multiple dwellings, buildings or structures shall be conditioned on the
50 following: (a) alterations or improvements to at least one building-wide
51 system are part of the application for benefits, and (b) (i) the
52 assessed valuation of such multiple dwelling, building, or structure,
53 including land, shall not exceed an average of thirty thousand dollars
54 per dwelling unit at the time of the commencement of the alterations or
55 improvements, and (ii) during the three years immediately preceding the
56 commencement of the alterations or improvements the average per room
S. 8578 277
1 sale price of the dwelling units or the stock allocated to such dwelling
2 units shall have been no greater than thirty-five percent of the maximum
3 mortgage amount for a single family home eligible for purchase by the
4 Federal National Mortgage Association; provided that if less than ten
5 percent of the dwelling units or an amount of stock less than the amount
6 allocable to ten percent of such dwelling units was not transferred
7 during such preceding three year period, eligibility for benefits shall
8 be conditioned upon the multiple dwelling, building, or structure having
9 an assessed valuation per dwelling unit of no more than twenty-five
10 thousand dollars at the time of the commencement of the alterations or
11 improvements. Provided, further, that such benefits shall be available
12 only for alterations or improvements commenced on or after June first,
13 nineteen hundred eighty-six.
14 Notwithstanding the foregoing, the benefits of this section shall be
15 available for any alterations or improvements commenced after August
16 seventh, two thousand eight for such multiple dwellings, buildings or
17 structures and shall be conditioned on the following: (1) the applica-
18 tion for benefits may include any item of work designated in the rules
19 adopted by the department of housing preservation and development as a
20 major capital improvement or asbestos abatement to the extent such
21 asbestos abatement is required by federal, state and local law; and (2)
22 (i) the assessed valuation of such multiple dwelling, building or struc-
23 ture, including land, shall not exceed an average of forty thousand
24 dollars per dwelling unit at the time of the commencement of the alter-
25 ations or improvements; and (ii) the average per room sale price of the
26 dwelling units or the stock allocated to such dwelling units shall have
27 been no greater than thirty-five percent of the maximum mortgage amount
28 for a single family home eligible for purchase by the Federal National
29 Mortgage Association during the three years immediately preceding the
30 commencement of the alterations or improvements; provided that if less
31 than ten percent of the dwelling units or an amount of stock less than
32 the amount allocable to ten percent of such dwelling units was not
33 transferred during such preceding three-year period, eligibility for
34 benefits shall be conditioned upon the multiple dwelling, building, or
35 structure having an assessed valuation per dwelling unit of no more than
36 forty thousand dollars at the time of the commencement of the alteration
37 or improvement. Provided, however, benefits shall also be available
38 under this section for work completed in any such multiple dwelling,
39 building or structure within the first three years of its conversion to
40 cooperative or condominium ownership, as evidenced by the date on which
41 the first closing in a condominium to a bona fide purchaser occurs or in
42 the case of a cooperative, the date on which the shares allocable to a
43 unit are conveyed to a bona fide purchaser, provided, however, that the
44 availability of such benefits for conversions, alterations or improve-
45 ments commenced prior to June first, nineteen hundred eighty-six, except
46 with respect to governmentally assisted projects as defined in regu-
47 lations issued by the department of housing preservation and develop-
48 ment, shall be conditioned upon the completion of such conversions,
49 alterations or improvements within three years after acceptance for
50 filing of the prospectus to establish such cooperative or condominium
51 entity by the attorney general of the state of New York. The maximum
52 amount of tax abatement which may be received in any tax period under
53 this section by any such multiple dwelling, building or structure for
54 any alterations and improvements commenced three or more years after its
55 initial conversion to cooperative or condominium ownership shall be
56 limited to an amount not in excess of two thousand five hundred dollars
S. 8578 278
1 per dwelling unit of the certified reasonable cost of the alterations or
2 improvements as determined under regulations of the department of hous-
3 ing preservation and development.
4 (3-a) Notwithstanding any contrary provision of paragraph three of
5 this subdivision, the availability of any benefits under this section to
6 any multiple dwelling, building or structure owned and operated by a
7 limited-profit housing company established pursuant to article two of
8 the private housing finance law shall not be conditioned upon the
9 assessed valuation of such multiple dwelling, building or structure,
10 including land, as calculated as an average dollar amount per dwelling
11 unit, at the time of the commencement of the alterations or improve-
12 ments; provided, however, that such limited-profit housing company (i)
13 is organized and operating as a mutual company, (ii) continues to be
14 organized and operating as a mutual company and to own and operate the
15 multiple dwelling, building or structure receiving such benefits, and
16 (iii) has entered into a binding and irrevocable agreement with the
17 commissioner of housing of the state of New York, the supervising agen-
18 cy, the New York city housing development corporation, or the New York
19 state housing finance agency prohibiting the dissolution or reconsti-
20 tution of such limited-profit housing company pursuant to section thir-
21 ty-five of the private housing finance law for not less than fifteen
22 years from the commencement of such benefits. For the purposes of this
23 paragraph, the terms "mutual company" and "supervising agency" shall
24 have the same meanings as set forth in section two of the private hous-
25 ing finance law.
26 (4) provided that, in the case of any building or structure: (i) in
27 which conversion, alteration or improvement commences on or after Janu-
28 ary first, nineteen hundred eighty-two, and (ii) which is located within
29 an area designated herein as a minimum tax zone, the benefits of this
30 section shall not be applied to abate or reduce the taxes upon the land
31 portion of such real property, which shall continue to be taxed based
32 upon the assessed valuation of the land and the applicable tax rate at
33 the time such taxes are levied; provided, however, that the foregoing
34 limitation with respect to abatement of taxes shall not apply:
35 (A) to any multiple dwelling which is eligible for benefits based upon
36 moderate rehabilitation pursuant to paragraph four of subdivision b of
37 this section, or (B) to any multiple dwelling which is governmentally
38 assisted as such term is defined in regulations to be promulgated by the
39 department of housing preservation and development pursuant to subdivi-
40 sion m of this section.
41 (5) provided that, in the case of any building or structure: (i) in
42 which conversion, alteration or improvement commences on or after Janu-
43 ary first, nineteen hundred eighty-two, and (ii) which is located within
44 an area designated herein as a tax abatement exclusion zone, the bene-
45 fits of this section shall not be applied to abate or reduce the taxes
46 upon such real property, which shall continue to be taxed based upon the
47 assessed valuation of the land and the improvements and the applicable
48 tax rate at the time such taxes are levied; provided, however, that the
49 foregoing limitation shall not deprive such real property of any bene-
50 fits of exemption from taxation of an increase in assessed valuation to
51 which it is entitled pursuant to this section; provided, however, that
52 the foregoing limitation with respect to abatement of taxes shall not
53 apply:
54 (A) to any alteration or improvement designated as a major capital
55 improvement, by the regulations promulgated by the department of housing
56 preservation and development pursuant to subdivision m of this section,
S. 8578 279
1 provided that the maximum amount of tax abatement which may be received
2 in any tax period under this section by any such multiple dwelling,
3 building or structure for any alterations and improvements shall be
4 limited to an amount not in excess of twenty-five hundred dollars per
5 dwelling unit of the certified reasonable cost of the alterations and
6 improvements as determined under regulations of the department of hous-
7 ing preservation and development, or (B) to any multiple dwelling which
8 is governmentally assisted as such term is defined by said regulations.
9 (8) Limitation on benefits. (a) The provisions of this paragraph shall
10 apply to all conversions, alterations and improvements except the
11 following:
12 (i) alterations or improvements under paragraphs three, five and six
13 of subdivision b of this section, where carried out:
14 (A) with the substantial assistance of grants, loans or subsidies from
15 any federal, state or local agency or instrumentality, or any not-for-
16 profit philanthropic organization one of whose primary purposes is
17 providing low or moderate incoming housing; or
18 (B) with mortgage insurance by the New York city residential mortgage
19 insurance corporation or the state of New York mortgage agency; or
20 (C) in the areas bounded and described as follows:
21 AREAS IN THE COUNTY OF RICHMOND:
22 PORT RICHMOND--The area bounded by the Kill Van Kull; Jewett Avenue
23 and its prolongation; Forest Avenue; and, the Willow Brook Expressway.
24 NEW BRIGHTON--The area bounded by the Kill Van Kull; Westervelt
25 Avenue; Brook Street; Castleton Avenue; and, North Randall Avenue and
26 its prolongation.
27 STAPLETON--The area bounded by Victory Boulevard; the Upper New York
28 Bay; Vanderbilt Avenue; Van Duzer Street; Cebra Avenue; and, St. Pauls
29 Avenue.
30 FOX HILLS--The area bounded by Vanderbilt Avenue; the Upper New York
31 Bay; the Staten Island Rapid Transit Railway right of way; and, the
32 Staten Island Expressway.
33 (D) pursuant to a program established by the federal housing adminis-
34 tration, federal national mortgage association, federal home loan mort-
35 gage corporation or government national mortgage association for the
36 rehabilitation of existing multiple dwellings for persons of low or
37 moderate income, or a program of mortgage insurance for the rehabili-
38 tation of existing multiple dwellings pursuant to section two hundred
39 twenty-three-f of the national housing act, as amended, or a program of
40 mortgage insurance established by the federal housing administration for
41 the rehabilitation of existing multiple dwellings for persons of low or
42 moderate income; provided that properties receiving benefits under such
43 programs are located in a neighborhood strategy area, as defined, by the
44 United States department of housing and urban development, or in one of
45 the areas listed in subparagraph (C) of this paragraph.
46 (ii) alterations or improvements under paragraph four of subdivision b
47 of this section; and
48 (iii) conversion of residential units qualified for the protection of
49 article seven-C of the multiple dwelling law under paragraph seven of
50 subdivision b of this section.
51 (b) Abatement limitations. (i) The amount of abatement under subdivi-
52 sion c of this section shall not exceed the certified reasonable cost of
53 the conversion, alteration or improvement, as determined under regu-
54 lations of the department of housing preservation and development,
55 provided that the amount of certified reasonable cost eligible for
56 abatement under this section shall not exceed fifteen thousand dollars
S. 8578 280
1 for a dwelling unit of three and one-half rooms, as determined under the
2 applicable zoning resolution, and a comparable amount for dwelling units
3 of other sizes, determined under regulations of the department of hous-
4 ing preservation and development, and further provided that the amount
5 of certified reasonable cost eligible for abatement under this section
6 may exceed fifteen thousand dollars or such comparable amount per dwell-
7 ing unit, but not more than twenty-five percent above such amount, upon
8 application of the property owner and a determination by the department
9 of housing preservation and development that:
10 (A) in the case of a conversion under paragraph one or two of subdivi-
11 sion b of this section, the increased cost is necessary to comply with
12 applicable law;
13 (B) in the case of an alteration or improvement under paragraph six of
14 subdivision b of this section, the increased cost is necessary to elimi-
15 nate the unhealthy or dangerous conditions or replace the inadequate and
16 obsolete facilities in a satisfactory manner;
17 (C) in the case of an alteration or improvement under paragraph five
18 of subdivision b of this section, the increased cost is necessary to
19 conserve energy in a satisfactory manner; or
20 (D) in the case of an alteration or improvement under paragraph three
21 of subdivision b of this section, the increased cost, to the extent such
22 cost is not offset by any and all tax credits received as a result of
23 the alteration or improvement, is necessary to comply with any provision
24 of law regulating historic or landmark buildings or structures.
25 (ii) Notwithstanding any other provisions of this subparagraph, and in
26 addition to all other conditions of eligibility for the benefits of this
27 section, the availability of abatements pursuant to subdivision c of
28 this section for any multiple dwellings, buildings or structures not
29 owned as a condominium or cooperative, except for multiple dwellings in
30 which units have been newly created by substantial rehabilitation of
31 vacant buildings or conversions of non-residential buildings, shall be
32 conditioned on the assessed valuation of such multiple dwelling, build-
33 ing or structure, including land, not exceeding an average of thirty
34 thousand dollars per dwelling unit at the time of commencement of the
35 alterations or improvements, provided, however, that such average shall
36 not exceed forty thousand dollars per dwelling unit at the time of
37 commencement of the alteration or improvement for alterations or
38 improvements commenced after the effective date of this paragraph.
39 (c) Exemption limitations. (i) The increase in assessed valuation of
40 the real property resulting from the conversion, alteration or improve-
41 ment under subdivision b of this section, shall be exempt from taxation
42 as provided in this section, only to the extent provided in this subpar-
43 agraph, provided that this subparagraph shall not apply to any conver-
44 sions, alterations or improvements commenced on or after June first,
45 nineteen hundred eighty-six. The amount of the increased assessed valu-
46 ation that is exempt from taxation shall depend on the amount of the
47 total assessed value per dwelling unit calculated by dividing the amount
48 of the total assessed valuation of the property, as determined under the
49 real property tax law, by the number of dwelling units in the building
50 after completion of the conversion, alteration or improvement. The
51 amount of increased assessed valuation that will be exempt from taxation
52 for buildings with total assessed valuation per dwelling unit of less
53 than thirty-eight thousand dollars shall be calculated pursuant to the
54 following formula: (A) any portion of total assessed valuation of the
55 property attributable to the first eighteen thousand dollars of total
56 assessed valuation per dwelling unit, to the extent it represents
S. 8578 281
1 increased assessed valuation, shall be one hundred percent exempt; (B)
2 any portion of total assessed valuation attributable to the next four
3 thousand dollars of total assessed valuation per dwelling unit, to the
4 extent it represents increased assessed valuation, shall be seventy-five
5 percent exempt; (C) any portion of total assessed valuation attributable
6 to the next four thousand dollars of total assessed valuation per dwell-
7 ing unit, to the extent it represents increased assessed valuation,
8 shall be fifty percent exempt; (D) any portion of total assessed valu-
9 ation attributable to the next four thousand dollars of total assessed
10 valuation per dwelling unit, to the extent it represents increased
11 assessed valuation, shall be twenty-five percent exempt; and (E) any
12 portion of total assessed valuation attributable to the next eight thou-
13 sand dollars of total assessed valuation per dwelling unit, to the
14 extent it represents increased assessed valuation per dwelling unit,
15 shall be fully taxable. Property with a total assessed valuation per
16 dwelling unit of thirty-eight thousand dollars or more shall not be
17 eligible for a tax exemption under this section.
18 (ii) In calculating the amount of increased assessed valuation that
19 will be exempt from taxation pursuant to the formula in clause (i) of
20 this subparagraph, the full amount of total assessed valuation that does
21 not represent increased assessed valuation shall be applied in such
22 formula prior to the inclusion of any amount of increased assessed valu-
23 ation.
24 (iii) Where the real property is occupied in part for residential
25 purposes and in part for non-residential purposes, the assessed valu-
26 ation of the property shall be appropriately allocated between the resi-
27 dential and non-residential portions. In computing the total assessed
28 valuation per dwelling unit under this subparagraph, only the amount of
29 valuation so allocated to the residential portion shall be considered.
30 (iv) Commencing with the assessment roll for the year nineteen hundred
31 eighty-four, where there has been a change in the level of assessment
32 from the assessment roll of the prior year of properties receiving
33 exemptions under this section, the department of finance may petition
34 the state board to certify the percentage of such change for the
35 purposes of this section. In such petition, the department of finance
36 shall submit such information as the state board shall require in order
37 to certify the percentage of such change. The state board may also make
38 such a certification on its own motion. Upon receipt of such certif-
39 ication from the state board, the department of housing preservation and
40 development may modify the dollar values of total assessed valuation per
41 dwelling unit in clause (i) of this subparagraph to reflect the percent-
42 age change in the level of assessment as shown in such certification. As
43 used in this subparagraph, the term "change in the level of assessment"
44 means the net increase or decrease in the assessed valuation of proper-
45 ties in the assessing unit that received exemptions under this section
46 in the current year as compared to those that received exemptions under
47 this section in the prior year as a result of assessing such properties
48 at a higher or lower ratio of full value.
49 (v) (A) Notwithstanding the provisions of clause (i) of this subpara-
50 graph, the department of housing preservation and development may reduce
51 or remove the limitations on the exemption from taxation provided in
52 such clause with respect to a particular property undergoing alteration
53 or improvement, upon application of the property owner and a determi-
54 nation by such department that the increased benefit will increase the
55 number of dwelling units that will be affordable to persons of low and
56 moderate income, and the increased benefit is necessary to make econom-
S. 8578 282
1 ically viable units or improvement in the quality of dwelling units that
2 will be affordable to persons of low or moderate income.
3 (B) As used in this subparagraph, the term "persons of low or moderate
4 income" shall mean persons who would qualify for housing subsidies
5 pursuant to section two hundred thirty-five of the national housing act,
6 as amended, at one hundred thirty-five percent of the income limitations
7 provided therein.
8 (C) Upon receiving an application under this subparagraph in proper
9 form, the department of housing preservation and development shall imme-
10 diately submit it to the community board for the area in which the
11 project is located, which may, within forty-five days of receiving it
12 and after a public hearing, make recommendations to the department as to
13 the application. The department shall act on the application within
14 sixty days of receiving it from the property owner in proper form, but
15 not before expiration of the time for the community board to make its
16 recommendations, unless the board has acted sooner.
17 (d) The department of housing preservation and development may set
18 forth preliminarily the terms of a determination under subparagraph (b)
19 or (c) of this paragraph prior to the commencement of the conversion,
20 alteration or improvement. Any such determination shall take effect
21 after completion of the work in accordance with the terms of the appli-
22 cation made by the property owner.
23 (e) Any determination of the department of housing preservation and
24 development to increase an abatement under subparagraph (b) of this
25 paragraph, or to reduce or remove the exemption limitations under
26 subparagraph (c) of this paragraph shall state the basis for the deter-
27 mination and the data on which the determination was based. Such deter-
28 mination shall be published in the City Record for five consecutive days
29 after the determination is rendered.
30 e. Notwithstanding any provision of this section or any other section
31 of the code to the contrary, where such dwelling is in an area where a
32 plan of redevelopment, program of neighborhood improvement, housing
33 maintenance, demonstration rehabilitation or concentrated code enforce-
34 ment is being carried out, the rents subsequent to conversion, alter-
35 ation or improvement may exceed the maximum amount allowable pursuant to
36 chapter four of title twenty-six of the code of the preceding munici-
37 pality where necessity for the adjustment of such rents is certified by
38 the department of housing preservation and development.
39 f. Subject to the provisions of subdivision d of this section, the
40 department of housing preservation and development shall determine and
41 certify the reasonable cost of any such conversions, alterations or
42 improvements and eligibility for the benefits of this section and for
43 that purpose may adopt rules and regulations, administer oaths to and
44 take the testimony of any person, including but not limited to the owner
45 of such property, may issue subpoenas requiring the attendance of such
46 persons and the production of such bills, books, papers or other docu-
47 ments as it shall deem necessary, may make preliminary estimates of the
48 maximum reasonable cost of such conversions, alterations or improve-
49 ments, may establish maximum allowable costs of specified units,
50 fixtures or work in such conversions, alterations or improvements, and
51 may require the submission of plans and specifications of such conver-
52 sions, alterations or improvements, and may require the submission of
53 plans and specifications of such conversions, alterations or improve-
54 ments before the start thereof. Applications for certification shall
55 include all bills and other documents showing the cost of construction
56 or such other evidence of such cost as shall be satisfactory to the
S. 8578 283
1 department of housing preservation and development, including, without
2 limitation, certification of cost by a certified public accountant in
3 accordance with generally accepted accounting principles. Applications
4 for certification for a building eligible for benefits pursuant to para-
5 graph three of subdivision d of this section, for alterations or
6 improvements completed more than three years after its conversion to
7 cooperative or condominium ownership, shall include such documentation
8 of the sale price of dwelling units or stock allocated to such dwelling
9 units as may be required by the department of housing preservation and
10 development, including but not limited to certification of sales price
11 by a certified public accountant. In addition, such applications shall
12 contain the consent of the applicant to allow the department of housing
13 preservation and development access to records, including but not limit-
14 ed to other tax records, as the department may deem appropriate to
15 enforce such conditions of eligibility. Applications for certification
16 filed on or after January first, nineteen hundred seventy-nine pursuant
17 to paragraphs one through six and paragraph eight of subdivision b of
18 this section shall be made after completion and within forty-eight
19 months following the start of construction of the conversion, alteration
20 or improvement, except that applications for certification for alter-
21 ations or improvements undertaken by a housing development fund company
22 organized pursuant to article eleven of the private housing finance law,
23 which are carried out with the substantial assistance of grants, loans
24 or subsidies from any federal, state or local governmental agency or
25 instrumentality or which are carried out in a property transferred from
26 the city of New York or city of Staten Island shall be made after
27 completion and within seventy-two months following the start of the
28 construction of the alteration or improvement. Provided, however, the
29 department of housing preservation and development is empowered to grant
30 an extension of the period for application for any project carried out
31 with the substantial assistance of loans, grants or subsidies from any
32 federal, state or local governmental agency or instrumentality, if such
33 application is made within seventy-two months from commencement of
34 construction. Applications for certification pursuant to paragraph seven
35 of subdivision b of this section shall be filed within twelve months of
36 the date of completion as provided by such subdivision.
37 g. To the end that conversions, alterations or improvements in such
38 property shall interfere as little as practicable with the clearance,
39 rehabilitation or rebuilding of sub-standard and insanitary areas and
40 shall be confined to buildings and structures which are structurally
41 sound and comply with applicable provisions of law, eligibility for the
42 benefits of this section shall be restricted to such buildings and
43 structures which the department of housing preservation and development
44 shall certify:
45 (1) to be structurally sound and to comply with applicable provisions
46 of law, as determined by the department of buildings, which certif-
47 ication shall be evidenced by a certificate describing the property
48 involved;
49 (2) if in an area for which a final plan of clearance, replanning,
50 reconstruction, rehabilitation, or redevelopment has been approved
51 pursuant to article fifteen of the general municipal law, or if in an
52 area for which an urban renewal plan or tests, studies or demonstrations
53 have been approved pursuant to article fifteen of the general municipal
54 law, to be improved in conformity with such replanning, reconstruction,
55 rehabilitation, redevelopment, tests, studies, demonstrations or plan;
56 and
S. 8578 284
1 (3) if in an area where a program of local neighborhood improvement or
2 housing maintenance is being carried out, to be in conformity with such
3 program.
4 h. Application forms for the benefits of this section shall be filed
5 with the department of finance within the time periods to be established
6 by rules and regulations promulgated by the department of housing pres-
7 ervation and development pursuant to subdivision m of this section. The
8 department of finance shall certify the amount of taxes to be abated,
9 pursuant to the certification of the department of housing preservation
10 and development as herein provided. No such application shall be
11 accepted unless accompanied by a copy of the certificate of the depart-
12 ment of housing preservation and development both as to reasonable cost
13 and as to eligibility as provided in subdivision f of this section.
14 i. The benefits of this section shall not apply:
15 (1) except as provided in subdivision d of this section, to any exist-
16 ing dwelling which is not subject to the provisions of the emergency
17 housing rent control law or to the city rent and rehabilitation law or
18 to the city rent stabilization law or to the private housing finance law
19 or to any federal law providing for supervision or regulation by the
20 United States department of housing and urban development;
21 (2) to any private dwelling, notwithstanding any other provision of
22 this section, unless it is in an area where a plan of redevelopment or
23 program of neighborhood improvement, housing maintenance, demonstration
24 rehabilitation or concentrated code enforcement is being carried out and
25 the department of housing preservation and development finds that the
26 conversion, alteration or improvement is in conformity with such plan of
27 redevelopment, or program of neighborhood improvement, housing mainte-
28 nance, demonstration rehabilitation or concentrated code enforcement;
29 provided that, however, for the purposes of this section, a class A
30 multiple dwelling may be deemed to include any garden-type maisonette
31 dwelling project consisting of a series of dwelling units which together
32 and in their aggregate were arranged or designed to provide three or
33 more apartments and are provided as a group collectively with all essen-
34 tial services such as, but not limited to, water supply, house sewers
35 and heat, and which are in existence and operated as a unit under single
36 ownership on the date upon which an application for the benefits of this
37 section is received by the department of housing preservation and devel-
38 opment, even though certificates of occupancy were issued for portions
39 thereof as private dwellings;
40 (3) to any property receiving tax exemption or abatement concurrently
41 for rehabilitation or new construction under any other provision of New
42 York state, city of New York or city of Staten Island law with the
43 exception of any alteration or improvement to property receiving such
44 tax exemption or abatement under the provisions of the private housing
45 finance law, provided, however, that the benefits of this section shall
46 not apply to any alterations or improvements done in connection with the
47 refinancing, pursuant to section 223f of the national housing act, as
48 amended, of a housing project organized pursuant to article two and
49 article four of the private housing finance law;
50 (4) to any multiple dwelling for ordinary repairs and normal replace-
51 ment of maintenance items, as provided in paragraph one of subdivision
52 a, hereof in the event that the dwelling thereof is receiving the bene-
53 fits of this section for other ordinary repairs and normal replacement
54 of maintenance items as of the December thirty-first preceding the date
55 of application;
S. 8578 285
1 (5) to the conversion of any building or structure, or portion there-
2 of:
3 (i) which is located in the city of Staten Island where residential
4 conversion as of right is not permitted by the zoning resolution;
5 (ii) where such benefits are eliminated by regulations to be promul-
6 gated by the department of housing preservation and development pursuant
7 to subdivision m of this section, unless, in the case of a building or
8 structure in Richmond county, construction actually commenced prior to
9 October first, nineteen hundred eighty-three, pursuant to an alteration
10 permit. A copy of any proposed regulation pursuant to this paragraph
11 shall be transmitted to the city council not less than sixty days prior
12 to its publication in the City Record, pursuant to section eleven
13 hundred five of the charter of the preceding municipality as it existed
14 on the first of January, in the year next succeeding the effective date
15 of this section; and
16 (iii) provided that the provisions of this paragraph shall not apply
17 to conversions pursuant to paragraph seven of subdivision b of this
18 section.
19 (6) to any conversion of or alteration or improvement, commenced on or
20 after July first, nineteen hundred eighty-two, to any class B multiple
21 dwelling or class A multiple dwelling used in whole or in part for
22 single room occupancy, regardless of the status or use of the building
23 after the conversion, alteration or improvement unless such conversion,
24 alteration or improvement is carried out with the substantial assistance
25 of grants, loans or subsidies from any federal, state or local agency or
26 instrumentality.
27 (7) to any conversion of or alteration or improvement, commenced on or
28 after the effective date of this paragraph, to any property classified
29 under the zoning resolution as a non-profit institution with sleeping
30 accommodations, regardless of the status or use of the building after
31 the conversion, alteration or improvement unless such conversion, alter-
32 ation or improvement is carried out with the substantial assistance of
33 grants, loans or subsidies from any federal, state or local agency or
34 instrumentality.
35 j. Notwithstanding the provisions of the multiple dwelling law, or any
36 local law, ordinance, provisions of this code, rule or regulation, any
37 dwelling to which alterations and improvements are made pursuant to this
38 section and which did not require a certificate of occupancy on April
39 second, nineteen hundred forty-five, may be occupied lawfully after such
40 date upon the completion of such alterations and improvements without
41 such a certificate being obtained, provided, however, that such alter-
42 ations and improvements shall have been made in conformity with law and
43 the applicable provisions for fire protection required by articles six
44 and seven of the multiple dwelling law.
45 k. No owner of a dwelling to which the benefits of this section shall
46 be applied, nor any agent, employee, manager or officer of such owner
47 shall directly or indirectly deny to any person because of race, color,
48 creed, national origin, gender, sexual orientation, disability, marital
49 status, age, religion, alienage or citizenship status, or the use of,
50 participation in, or being eligible for a governmentally funded housing
51 assistance program, including, but not limited to, the section 8 housing
52 voucher program and the section 8 housing certificate program, 42 U.S.C.
53 1437 et seq., or the senior citizen rent increase exemption program,
54 pursuant to either chapter seven of title twenty-six of the code of the
55 preceding municipality or section 26-509 of such code, any of the dwell-
56 ing accommodations in such property or any of the privileges or services
S. 8578 286
1 incident to occupancy therein. The term "disability" as used in this
2 subdivision shall have the meaning set forth in section 8-102 of the
3 code of the preceding municipality. Nothing in this subdivision shall
4 restrict such consideration in the development of housing accommodations
5 for the purpose of providing for the special needs of a particular
6 group.
7 l. Any person who shall knowingly and willfully make any false state-
8 ment as to any material matter in any application for the benefits of
9 this section shall be guilty of an offense punishable by a fine of not
10 more than five hundred dollars or imprisonment for not more than ninety
11 days, or both. The commissioner of the department of housing preserva-
12 tion and development may reduce or revoke past and future exemption or
13 tax abatement authorized pursuant to this section if the application for
14 tax exemption or tax abatement contains a false statement or false
15 information as to a material matter or omits a material matter.
16 m. Each agency or department to which functions are assigned by this
17 section may adopt and promulgate rules and regulations for the effectua-
18 tion of the purpose of this section.
19 n. The department of housing preservation and development may require
20 a filing fee in an amount as provided by the rules and regulations
21 promulgated by the department of housing preservation and development
22 pursuant to subdivision m of this section.
23 o. Any tax abatement granted for a period of nine years to a multiple
24 dwelling aided by a loan provided by the city of New York prior to Janu-
25 ary first, nineteen hundred seventy-one, shall upon application therefor
26 be adjusted to extend for a period of up to twenty years, provided that
27 the total abatement before and after such adjustment shall not exceed
28 the total abatement to which such property was initially entitled under
29 this section.
30 p. This section is enacted pursuant to the provisions of section four
31 hundred eighty-nine of the real property tax law and subdivision two of
32 section four hundred five of the private housing finance law.
33 q. No application for the benefits of this section shall be accepted
34 by the department of finance if there are outstanding real estate taxes
35 or water and sewer charges or payments in lieu of taxes which were due
36 and owing as of the last day of the tax period preceding the date of
37 such filing with the department of finance, provided that an applicant
38 aided by article eight or article fifteen of the private housing finance
39 law shall have such application accepted by the department of finance if
40 there are no outstanding real estate taxes or water and sewer charges
41 due and owing as of the last day of the tax period preceding commence-
42 ment of construction.
43 r. In the event that any building or structure receiving the benefits
44 of this section shall become operated exclusively for commercial, hotel
45 or transient hotel use, the tax commission shall withdraw benefits
46 granted herein prospectively.
47 s. The benefits of this section shall not apply to alterations or
48 improvements to existing dwellings in existence on December thirty-
49 first, nineteen hundred seventy-five where (i) such alterations or
50 improvements were completed on or before December thirty-first, nineteen
51 hundred seventy-five, and (ii) no dwelling units thereof on December
52 thirty-first, nineteen hundred seventy-five had rentals which were
53 subject to control by the city rent agency pursuant to chapter four of
54 title twenty-six of the code of the preceding municipality. This subdi-
55 vision shall not apply to alterations or improvements to any building or
56 structure which is benefitted by mortgage insurance pursuant to section
S. 8578 287
1 two hundred thirteen of the national housing act for applications filed
2 prior to January first, nineteen hundred seventy-nine.
3 t. Notwithstanding any law to the contrary, the owner of any building
4 or structure eligible for any of the benefits of this section which is
5 converted to a class A multiple dwelling, completed, or substantially
6 rehabilitated on or after January one, nineteen hundred seventy-four,
7 shall register the initial rent for each dwelling unit in such building
8 or structure with the New York state division of housing and community
9 renewal. After such registration, the rents of such dwelling units shall
10 be fully subject to regulations under chapter four of title twenty-six
11 of the code of the preceding municipality so long as the benefits of
12 this section are in effect or for such longer period as may be provided
13 by law.
14 u. Any tax exemption or tax abatement authorized pursuant to this
15 section may be revoked retroactively by the commissioner of department
16 of housing preservation and development or the department of finance at
17 any time during the authorized term of such tax exemption or tax abate-
18 ment if real estate taxes or water and sewer charges due to the city of
19 New York or city of Staten Island remain unpaid for one year after the
20 same are due and payable. In no event shall revocation be effective
21 prior to the date such taxes or charges were first due and payable.
22 v. Where alterations, improvements, or conversions include or benefit
23 that part of a building which is not occupied for dwelling purposes but
24 is occupied by stores or otherwise used for commercial purposes or
25 community facilities, the increase in assessed valuation and the cost of
26 the alteration shall be apportioned so that the benefits of this title
27 shall not be provided for alterations, improvements or conversions made
28 for other than dwelling purposes.
29 w. If any provision of this section or its application to any person
30 shall be held invalid, the remainder of this section and the applicabil-
31 ity of its provisions to other persons or circumstances shall not be
32 affected thereby.
33 x. Notwithstanding any provision of this section, no benefit pursuant
34 to paragraph four of subdivision b of this section shall be granted for
35 work commenced after January first, nineteen hundred eighty, unless the
36 applicant establishes that the department of housing preservation and
37 development and tenants of such class A multiple dwelling were given
38 notice of (i) the proposed work prior to commencement of such work, (ii)
39 the identity of the owner's representative, and (iii) the tenants'
40 rights under applicable law with respect to such work, provided that, in
41 the case of a loan program supervised by such department, notice to the
42 department shall be unnecessary, and further provided that the depart-
43 ment may itself provide the required notice to the tenants.
44 y. Applicants for benefits under the provisions of this section shall
45 file with the department of finance a form supplied by said department
46 which (i) states an intention to file for benefits under the provisions
47 of this section, (ii) describes the work for which tax benefits will be
48 claimed and (iii) estimates the cost of such work which will be eligible
49 for benefits. Such form shall be filed prior to the commencement of such
50 work. If the scope of such work or the estimated cost thereof changes
51 materially, applicant shall file a revised statement. Applicants who
52 fail to comply with the requirements of this subdivision shall be
53 subject to a penalty not to exceed one hundred percent of the filing fee
54 otherwise payable pursuant to subdivision n of this section.
55 z. A former tenant or former subtenant of premises in a non-residen-
56 tial building which is the subject of an application for an alteration
S. 8578 288
1 permit for conversion to a class A multiple dwelling, prior to the
2 application for any tax exemption or abatement benefits for such build-
3 ing pursuant to this section, and as a condition to the grant thereof,
4 shall be entitled to a relocation award under the terms and conditions
5 set forth below:
6 (1) As used in this subdivision, the term "eligible tenant" shall mean
7 any former tenant or former subtenant who:
8 (i) leased and used the vacated premises to conduct a manufacturing,
9 warehousing, or wholesaling business for not less than two consecutive
10 years immediately prior to vacating;
11 (ii) vacated such premises on or after April first, nineteen hundred
12 eighty-one for any reason other than eviction for non-payment of rent;
13 (iii) vacated such premises (a) no earlier than twenty-four months
14 prior to the filing date of an application for such alteration permit
15 and (b) no later than the completion of the conversion as evidenced by
16 the issuance of a permanent certificate of occupancy for a class A
17 multiple dwelling;
18 (iv) either purchased or leased for a term of not less than eighteen
19 months other premises within the city of Staten Island with a floor area
20 not less than one-third of the floor area of the vacated premises;
21 (v) relocated their business to such other premises within one year of
22 vacating the vacated premises; and
23 (vi) paid all commercial rent or occupancy tax for the vacated prem-
24 ises. A subtenant shall be eligible to receive a relocation award
25 notwithstanding any lack of eligibility of its prime tenant;
26 (2) the relocation award shall not exceed the greater of (i) the
27 aggregate base rent which accrued and was paid by the eligible tenant
28 during the final twenty-four months of its occupancy of the vacated
29 premises or (ii) four dollars for each square foot that the eligible
30 tenant occupied in the vacated premises during the final twenty-four
31 months of its occupancy of the vacated premises. As used in this subdi-
32 vision, base rent shall be calculated in the same manner as base rent is
33 calculated for purposes of commercial rent or occupancy tax in the city
34 of Staten Island. However, the aggregate award payable to a prime tenant
35 and/or any subtenants of such prime tenant shall not exceed the amount
36 which would have been payable to the prime tenant had the prime tenant
37 been eligible for an award based on the entire floor area it leased from
38 the owner; and if such limitation applies, the awards shall be prorated
39 based upon the total floor area used and occupied by each eligible
40 tenant;
41 (3) the relocation award shall become due and payable to an eligible
42 tenant at the time the eligible tenant (i) either purchases or leases
43 other premises in accordance with paragraph one of this subdivision, and
44 (ii) certifies eligibility to, and demands payment of, the award from
45 the owner of the vacated building. If the relocation award is not paid
46 within thirty days of such certification and demand, interest shall
47 accrue on the relocation award from the date of the certification and
48 demand at the rate of twenty-four percent per annum;
49 (4) at any time after such certification and demand and prior to the
50 date of the filing of an application for tax exemption or abatement for
51 the vacated building pursuant to this section, an eligible tenant who
52 has not received a relocation award shall have a right to file a notice
53 of claim. Such notice of claim shall be filed with the county clerk of
54 the county and shall verify the claimant's name, its compliance with
55 eligibility requirements, the address of the vacated premises, the floor
56 area it occupied, the name of the prime tenant if the claimant is a
S. 8578 289
1 subtenant, and all the base rent that accrued and was paid by the claim-
2 ant during the final twenty-four months of its occupancy;
3 (5) a notice of claim, filed in accordance with paragraph four of this
4 subdivision, may be discharged by the filing of an undertaking with the
5 county clerk in an amount equal to the amount claimed and in accordance
6 with the procedures set forth in subdivision four of section nineteen of
7 the lien law, or by the payment into court of such amount in accordance
8 with the procedures set forth in section fifty-five of such law;
9 (6) no tax exemption or abatement shall be granted pursuant to this
10 section unless the department of housing preservation and development
11 receives an affidavit from the applicant for benefits of this section
12 which verifies that:
13 (i) the applicant has caused to be published a notice in a newspaper
14 of general circulation within the city of Staten Island, no later than
15 sixty days prior to filing of an application for tax exemption or abate-
16 ment pursuant to this section, which advises former tenants and subten-
17 ants of their rights pursuant to this subdivision; and
18 (ii) no notice of claim has been filed or all claims have been
19 released by the claimants, or secured in accordance with the provisions
20 of paragraph five of this subdivision, or discharged as an improper
21 claim by court order;
22 (7) the affidavit required pursuant to the provisions of paragraph six
23 of this subdivision shall be considered part of the application for
24 benefits pursuant to this section;
25 (8) if an eligible tenant has duly filed a notice of claim pursuant to
26 paragraph four of this subdivision and did not receive a relocation
27 award as provided herein, it may commence an action against any appli-
28 cant who filed a false affidavit pursuant to paragraph six of this
29 subdivision or any security posted by such applicant pursuant to para-
30 graph five of this subdivision, within three years of such filing. In
31 any action to enforce a claim pursuant to this subdivision, if the court
32 finds that the claimant has wilfully exaggerated the amount of the
33 claim, the claimant may be held liable in damages for an amount not to
34 exceed the proper relocation award. An eligible tenant in whose favor a
35 judgment is entered shall be entitled to costs and reasonable legal fees
36 and disbursements provided that such judgment is in excess of the amount
37 which the applicant or owner offered to pay the eligible tenant; and
38 (9) any lease or other rental agreement provision exempting, waiving,
39 releasing or discharging the obligation to pay a relocation award pursu-
40 ant to this subdivision shall be void as against public policy and whol-
41 ly unenforceable.
42 aa. Harassment. (1) The provisions of this subdivision apply to and
43 are additional requirements for claiming or receiving:
44 (a) any tax exemption under this section; or
45 (b) any tax abatement under this section where the certified reason-
46 able cost per dwelling unit of the conversion, alteration or improvement
47 (including the cost of any conversion, alteration or improvement for
48 which an abatement was approved within four years prior to commencement
49 of the conversion, alteration or improvement) exceeds seven thousand
50 five hundred dollars.
51 (2) The owner of the property shall file with the department of hous-
52 ing preservation and development, not less than thirty days before the
53 commencement of the conversion, alteration or improvement (hereinafter
54 referred to as the "cut-off date"), an affidavit, or, where any informa-
55 tion referred to in paragraph one of this subdivision changes prior to
S. 8578 290
1 applying for or claiming any benefit under this section, an amending
2 affidavit, setting forth the following information:
3 (a) every owner of record and owner of a substantial interest in the
4 property or entity owning the property or sponsoring the conversion,
5 alteration or improvement;
6 (b) a statement that none of such persons had, within the five years
7 prior to the cut-off date, been found to have harassed or unlawfully
8 evicted tenants by judgment or determination of a court or agency
9 (including a non-governmental agency having appropriate legal jurisdic-
10 tion) under the penal law, any state or local law regulating rents or
11 any state or local law relating to harassment of tenants or unlawful
12 eviction; and
13 (c) any change in the information required to be set forth.
14 (3) No conversion, alteration or improvement subject to this subdivi-
15 sion shall be eligible for tax exemption or tax abatement under this
16 section where:
17 (a) any affidavit required under this subdivision has not been filed;
18 (b) any such affidavit contains a willful misrepresentation or omis-
19 sion of any material fact; or
20 (c) any person referred to in subparagraph (a) of paragraph two of
21 this subdivision has been found to have harassed or unlawfully evicted
22 tenants as described in that paragraph, until and unless the finding is
23 reversed on appeal, provided that any such finding after the cut-off
24 date shall not apply to or affect any tax abatement or exemption for the
25 conversion, alteration or improvement covered by the affidavit.
26 (4) The department of housing preservation and development and the
27 department of finance shall maintain a list of affidavits as described
28 in paragraph two of this subdivision. Each agency shall review that list
29 with respect to each application or claim for benefits subject to this
30 subdivision.
31 (5) "Substantial interest" as used in subparagraph (a) of paragraph
32 two of this subdivision shall mean ownership of an interest of ten per
33 centum or more in the property or entity owning the property or sponsor-
34 ing the conversion, alteration or improvement.
35 (6) Where the conversion, alteration or improvement is commenced
36 before August first, nineteen hundred eighty-three, the cut-off date
37 shall be as set forth in this subdivision, but no affidavit shall be
38 required to be filed until thirty days after the effective date of this
39 subdivision.
40 bb. Notwithstanding any contrary provision of the private housing
41 finance law, the benefits of this section shall apply to any limited
42 profit housing company as provided in this section. Such multiple dwell-
43 ing, building or structure shall be eligible for benefits where at least
44 one building-wide improvement or alteration is part of the application
45 for benefits. Furthermore, to the extent that such alterations or
46 improvements are financed with grants, loans or subsidies from any
47 federal, state, or local agency or instrumentality, such multiple dwell-
48 ing, building or structure shall be eligible for benefits only if the
49 limited profit housing company has entered into a binding and irrev-
50 ocable agreement with the commissioner of housing of the state of New
51 York, the supervising agency, as such term is defined in section two of
52 the private housing finance law, the New York city housing development
53 corporation, or the New York state housing finance agency prohibiting
54 the dissolution or reconstitution of such limited profit housing company
55 pursuant to section thirty-five of the private housing finance law for
56 not less than fifteen years from the commencement of benefits. The
S. 8578 291
1 abatement of taxes on such property, including the land, shall not be an
2 amount greater than ninety per centum of the certified reasonable cost
3 of such alterations or improvements, as determined under regulations of
4 the department of housing preservation and development, nor greater than
5 eight and one-third percent of such certified reasonable cost in any
6 twelve-month period, nor be effective for more than twenty years. The
7 annual abatement of taxes in any twelve-month period shall in no event
8 exceed fifty percent of the amount of taxes payable in such twelve-month
9 period pursuant to the applicable exemption granted pursuant to article
10 two of the private housing finance law or other applicable laws or fifty
11 percent of payments required to be made in lieu of taxes in such twelve-
12 month period. Provided, however, the annual abatement of taxes for
13 alterations or improvements commenced prior to June first, nineteen
14 hundred eighty-six may not be applied to reduce the amount of taxes
15 payable or the amount of payments required to be made in lieu of taxes
16 in any twelve-month period to an amount less than the minimum amount of
17 taxes required to be paid pursuant to section thirty-three of the
18 private housing finance law.
19 cc. The commissioner of the department of housing preservation and
20 development and the commissioner of the department of finance shall
21 prepare an annual report which shall be submitted to the Mayor and the
22 council on or before the first of July next succeeding the year to which
23 the report pertains, regarding the exemptions and abatements granted
24 pursuant to this section and shall include, but not be limited to the
25 following information: (i) the amount of real property tax that would
26 have been paid in the aggregate by the owners of real property granted
27 an exemption or abatement if the property were fully taxable and the
28 amount of tax actually paid in the aggregate by such owners, (ii) the
29 geographic distribution of exemptions and abatements granted pursuant to
30 this section, and (iii) a distribution by type of eligible categories as
31 delineated in paragraphs one through nine of subdivision b of this
32 section.
33 dd. Partial waiver of rent adjustments attributable to major capital
34 improvements. (1) The provisions of this subdivision apply to and are
35 additional requirements for claiming or receiving any tax abatement
36 under this section, except as provided in paragraphs three and four of
37 this subdivision.
38 (2) The owner of the property shall file with the department of hous-
39 ing preservation and development, on the date any application for bene-
40 fits is made, a declaration stating that in consideration of any tax
41 abatement benefits which may be received pursuant to such application
42 for alterations or improvements constituting a major capital improve-
43 ment, such owner agrees to waive the collection of a portion of the
44 total annual amount of any rent adjustment attributable to such major
45 capital improvement which may be granted by the New York state division
46 of housing and community renewal pursuant to the rent stabilization code
47 or its successor statute for the city of Staten Island equal to one-half
48 of the total annual amount of the tax abatement benefits which the prop-
49 erty receives pursuant to such application with respect to such alter-
50 ations or improvements. Such waiver shall commence on the date of the
51 first collection of such rent adjustment, provided that, in the event
52 that such tax abatement benefits were received prior to such first
53 collection, the amount waived shall be increased to account for such tax
54 abatement benefits so received. Following the expiration of a tax abate-
55 ment for alterations or improvements constituting a major capital
56 improvement for which a rent adjustment has been granted by such divi-
S. 8578 292
1 sion, the owner may collect the full amount of annual rent permitted
2 pursuant to such rent adjustment. A copy of such declaration shall be
3 filed simultaneously with the New York state division of housing and
4 community renewal. Such declaration shall be binding upon such owner,
5 and his or her successors and assigns.
6 (3) The provisions of this subdivision shall not apply to substantial
7 rehabilitation of buildings vacant when alterations or improvements are
8 commenced or to buildings rehabilitated with the substantial assistance
9 of city, state or federal subsidies.
10 (4) The provisions of this subdivision shall apply only to alterations
11 and improvements commenced after the effective date of such subdivision.
12 § 11-244 Tax exemption and abatement for rehabilitated buildings. a.
13 As used in this section, the following terms shall have the following
14 meanings:
15 1. "Eligible real property" shall mean:
16 (i) any class B multiple dwelling;
17 (ii) any class A multiple dwelling used for single room occupancy
18 pursuant to section two hundred forty-eight of the multiple dwelling law
19 which contains no more than twenty-five percent class A dwelling units
20 which contain lawful sanitary and kitchen facilities within the dwelling
21 unit, provided that in the case of a multiple dwelling containing ten
22 dwelling units or less, up to forty percent of the dwelling units may be
23 class A units; and
24 (iii) not-for-profit institutions with sleeping accommodations.
25 Notwithstanding the foregoing, eligible real property shall not
26 include college and school dormitories, club houses, or residences whose
27 occupancy is restricted to an institutional use such as housing intended
28 for use primarily or exclusively by the employees of a single company or
29 institution. A building is an eligible real property only if it quali-
30 fies as such after completion of the eligible improvements, but need not
31 have been an eligible real property prior to the eligible improvements.
32 2. "Eligible improvements" shall be limited to the following catego-
33 ries of work, provided further that such work shall be in conformity
34 with all applicable laws:
35 (i) replacement of a boiler or burner or installation of an entire new
36 heating system;
37 (ii) replacement or upgrading of electrical system;
38 (iii) replacement or upgrading of elevators;
39 (iv) installation or replacement or upgrading of the plumbing system,
40 including water main and risers;
41 (v) replacement or installation of walls, ceilings, floors or trim
42 where necessary;
43 (vi) replacement or upgrading of doors, installation of security
44 devices and systems;
45 (vii) installation, replacement or upgrading of smoke detectors, fire
46 alarms, fire escapes or sprinkler systems;
47 (viii) replacement or repair of roof, leaders and gutters;
48 (ix) replacement or installation of bathroom facilities;
49 (x) installation of wall and pipe insulation;
50 (xi) replacement or upgrading of street connections for water or sewer
51 services;
52 (xii) replacement or installation of windows, or installation of
53 window gates or guards;
54 (xiii) installation or replacement of boiler smoke stack;
55 (xiv) pointing, waterproofing and cleaning of entire building exterior
56 surface;
S. 8578 293
1 (xv) improvements designed to conserve the use of fuel, electricity or
2 other energy sources;
3 (xvi) work necessary to effect compliance with all applicable laws
4 including, but not limited to the multiple dwelling law, the city hous-
5 ing maintenance code or its successor statute for the city of Staten
6 Island and the building code; and
7 (xvii) improvements unique to congregate living facilities, as defined
8 by rules and regulations promulgated by the department of housing pres-
9 ervation and development.
10 3. "Existing dwelling" shall mean any eligible real property in exist-
11 ence prior to the commencement of eligible improvements, for which tax
12 exemption and abatement is claimed under the terms of this section and
13 for which a valuation appears on the annual record of assessed valuation
14 of the city for the fiscal year immediately preceding the commencement
15 of construction of such eligible improvements.
16 4. "Commencement of eligible improvement" shall mean the beginning of
17 any physical operation undertaken for the purpose of making eligible
18 improvements to eligible real property.
19 5. "Completion of eligible improvement" shall mean the conclusion or
20 termination of any physical operation referred to in the preceding para-
21 graph, to an extent or degree which renders an eligible property capable
22 of use for the purpose for which the improvements were intended.
23 6. "Permanent resident" shall mean a person who has resided in eligi-
24 ble real property for six months or more; has a lease or other rental
25 agreement for a term of six or more months; or has requested a lease
26 pursuant to the provisions of the rent stabilization code or its succes-
27 sor statute for the city of Staten Island for housing accommodations
28 located in hotels.
29 b. Any increase in the assessed valuation of eligible real property
30 shall be exempt from taxation for local purposes for a period of thir-
31 ty-two years to the extent such increase results from eligible improve-
32 ments, provided that:
33 (i) the eligible improvements are commenced after July first, nineteen
34 hundred eighty, and prior to the thirty-first of December in the year
35 next succeeding the effective date of this section, and are completed
36 within thirty-six months from commencement;
37 (ii) the department of housing preservation and development determines
38 and certifies the cost, qualification and eligibility of any improvement
39 for benefits of this section;
40 (iii) the exemption may commence no sooner than the July first follow-
41 ing the filing with the department of finance of a certification of
42 eligibility issued by the department of housing preservation and devel-
43 opment for benefits of this section; provided, however, that if the
44 rehabilitation is carried out with substantial government assistance as
45 part of a program for affordable housing the exemption may commence no
46 sooner than the July first following the commencement of construction of
47 eligible improvements;
48 (iv) immediately prior to, and during, the construction of eligible
49 improvements, not less than fifty percent of the dwelling units in such
50 eligible real property are occupied by permanent residents; provided
51 that such occupancy requirement shall not apply to a vacant, govern-
52 mentally owned multiple dwelling which had been vacant for not less than
53 two years prior to the commencement of construction of eligible improve-
54 ments, nor to a vacant multiple dwelling where the eligible improvements
55 are carried out with the substantial assistance of grants, loans or
56 subsidies from any federal, state or local agency or instrumentality or
S. 8578 294
1 any not-for-profit philanthropic organization one of whose primary
2 purposes is providing low or moderate income housing;
3 (v) no outstanding real estate taxes, water and sewer charges,
4 payments in lieu of taxes or other municipal charges are due and owing
5 as of the tax quarter immediately preceding the commencement of tax
6 exemption pursuant to this section; provided that an applicant aided
7 pursuant to the provisions of the private housing finance law shall have
8 such application accepted by the tax commission if there are no
9 outstanding real estate, water and sewer taxes due and owing as of the
10 last day of the tax quarter preceding commencement of construction of
11 eligible improvements;
12 (vi) except in the case of eligible real property which is receiving
13 or has received assistance pursuant to a governmental rent subsidy
14 program or which is owned by a not-for-profit corporation or by a wholly
15 owned subsidiary of a not-for-profit corporation and which is receiving
16 or has received assistance pursuant to a governmental loan subsidy
17 program, as defined by the rules and regulations promulgated by the
18 department of housing preservation and development, for the construction
19 of eligible improvements, the initial rent after completion of eligible
20 improvements, for ninety percent of the total number of dwelling units
21 occupied by permanent residents in a class A or class B multiple dwell-
22 ing other than apartments shall not exceed the greater of either the
23 amount of any governmental rental assistance received by an occupant or
24 seventy-five percent of the rent which is permitted to be charged for
25 zero-bedroom units on the moderate rehabilitation fair market rent sche-
26 dule as determined by the United States department of housing and urban
27 development for the housing assistance payments program under section
28 eight of the national housing act;
29 (vii) no person residing in eligible real property prior to or during
30 the construction of eligible improvements shall be required by the owner
31 to vacate the eligible real property solely in order to perform the
32 eligible improvements or any related work.
33 c. Eligible real property which qualifies for exemption from taxation
34 for local purposes for eligible improvements shall also be eligible for
35 an annual abatement of real property taxes in an amount not to exceed
36 twelve and one-half percent of the reasonable cost of eligible improve-
37 ments certified by the department of housing preservation and develop-
38 ment, which abatement may commence on the first day of the first tax
39 quarter following the filing with the department of finance of a certif-
40 ication of eligibility issued by the department of housing preservation
41 and development for benefits of this section; provided, however, that if
42 the rehabilitation is carried out with substantial government assistance
43 as part of a program for affordable housing the abatement may commence
44 no sooner than the first day of the first tax quarter following the
45 commencement of construction of eligible improvements, provided further
46 that:
47 (i) the annual abatement shall not exceed the amount of taxes other-
48 wise payable in the corresponding year;
49 (ii) the period during which such abatement is effective shall not
50 exceed twenty consecutive years from the date such abatement first
51 becomes effective; and
52 (iii) the total abatement shall not exceed the lesser of one hundred
53 fifty percent of the certified reasonable costs of eligible improvements
54 or the actual costs as determined by the department of housing preserva-
55 tion and development pursuant to its rules and regulations.
S. 8578 295
1 d. During the period of tax exemption or abatement pursuant to this
2 section, each of the following shall be a condition precedent to the
3 continuation of the exemption and/or abatement:
4 (i) compliance with all applicable provisions of law, including, but
5 not limited to the multiple dwelling law, the building code and the
6 housing maintenance code of the preceding municipality;
7 (ii) all dwelling units, except owner occupied units, shall be subject
8 to the emergency housing rent control law or the local housing rent
9 control act or the tenant protection act of nineteen hundred seventy-
10 four, or any local laws enacted pursuant thereto or the rent stabiliza-
11 tion law of nineteen hundred sixty-nine or their successor statutes for
12 the city of Staten Island; provided, however, that the department of
13 housing preservation and development may exempt from this requirement
14 dwelling units that are not occupied by permanent residents in those
15 buildings owned by a not-for-profit corporation and which are improved
16 with the aid of a rehabilitation loan from any government agency or
17 instrumentality or operated pursuant to a contract with a governmental
18 entity.
19 (iii) eligible real property receiving tax exemption or tax abatement
20 benefits under this section shall not receive tax exemption or tax
21 abatement for new construction or rehabilitation under any other
22 provision of law;
23 (iv) the eligible improvements shall not be used as the basis for any
24 application for rent increases and the owner shall file a statement to
25 such effect with the department of housing preservation and development
26 and with any appropriate rent regulatory agency, provided, however, that
27 rents of units improved with the aid of a rehabilitation loan from any
28 governmental agency or instrumentality may within the limitations estab-
29 lished by this section be increased pursuant to the rules and regu-
30 lations of the department of housing preservation and development; and
31 (v) a minimum of seventy-five percent of the dwelling units shall be
32 rental units occupied by permanent residents; provided, however that the
33 department of housing preservation and development may exempt from this
34 requirement those buildings improved with the aid of a rehabilitation
35 loan from any governmental agency or instrumentality or operated pursu-
36 ant to a contract with a governmental entity.
37 e. During the period of tax exemption or abatement pursuant to this
38 section, the owner shall submit an annual certification to the depart-
39 ment of housing preservation and development in the form prescribed by
40 such department. Failure to submit such certification in any given year
41 may result in the revocation of benefits. The certification shall
42 include the following:
43 (i) the total number of dwelling units within the eligible real prop-
44 erty and the total number of dwelling units occupied by permanent resi-
45 dents;
46 (ii) the number of dwelling units subject to the provisions of the
47 emergency housing rent control act, the emergency tenant protection act
48 of nineteen seventy-four or any local laws enacted pursuant thereto; the
49 emergency housing rent control law or the rent stabilization law of
50 nineteen hundred sixty-nine or their successor statutes applicable to
51 the city of Staten Island; and
52 (iii) all such other information required by the department of housing
53 preservation and development.
54 f. Any tax exemption or tax abatement authorized pursuant to this
55 section may be revoked or reduced by the department of housing preserva-
56 tion and development or by the department of finance at any time during
S. 8578 296
1 the authorized term of such tax exemption or tax abatement upon a find-
2 ing by either department that:
3 (i) the application for benefits pursuant to this section or the annu-
4 al certification required hereunder contains a false statement or false
5 information as to a material matter, or omits a material matter, in
6 which case the revocation or reduction may be retroactive to the
7 commencement of benefits pursuant to this section;
8 (ii) real estate taxes, water, sewer or other municipal charges, or
9 payments in lieu of said taxes or charges are, and have remained, due
10 and owing for more than one year, in which case the revocation or
11 reduction may be retroactive to the commencement of benefits pursuant to
12 this section, provided that in no event shall revocation be effective
13 prior to the date such taxes or charges were first due and payable; or
14 (iii) the eligible real property fails to comply with one or more of
15 the provisions or requirements of this section.
16 g. Application forms for the benefits of this section shall be filed
17 with the tax commission within the time periods to be established by
18 rules and regulations promulgated by the department of housing preserva-
19 tion and development, pursuant to subdivision i of this section. The tax
20 commission shall certify to the department of finance the amount of
21 taxes to be abated, pursuant to the certification of the department of
22 housing preservation and development as herein provided. No such appli-
23 cation shall be accepted unless accompanied by a copy of the certificate
24 of the department of housing preservation and development both as to
25 reasonable cost and as to eligibility as provided in subdivision b of
26 this section.
27 h. No owner of a dwelling to which the benefits of this section apply,
28 nor any agent, employee, manager or officer of such owner shall directly
29 or indirectly deny to any person because of race, color, creed, national
30 origin, sex, disability, marital status, age, religion, military status,
31 gender identity or expression or sexual orientation any of the dwelling
32 accommodations in such property or any of the privileges or services
33 incident to occupancy therein. The term "disability" as used in this
34 subdivision shall mean a physical, mental or medical impairment result-
35 ing from anatomical, physiological, or neurological conditions which
36 prevents the exercise of a normal bodily function or is demonstrable by
37 medically accepted clinical or laboratory diagnostic techniques. Nothing
38 in this subdivision shall restrict such consideration in the availabili-
39 ty of housing accommodations for the purpose of providing for the
40 special needs of a particular group.
41 i. The department of housing preservation and development shall deter-
42 mine and certify the reasonable cost of any such conversions, alter-
43 ations or improvements and eligibility for the benefits of this section
44 and for that purpose may adopt rules and regulations, administer oaths
45 to and take the testimony of any person, including, but not limited to
46 the owner of such property, may issue subpoenas requiring the attendance
47 of such persons and the production of such bills, books, papers or other
48 documents as it shall deem necessary, may make preliminary estimates of
49 the maximum reasonable cost of such conversions, alterations or improve-
50 ments, may establish maximum allowable costs of specified units,
51 fixtures or work in such conversions, alterations or improvements, and
52 may require the submission of plans and specifications of such conver-
53 sions, alterations or improvements before the start thereof. Applica-
54 tions for certification shall include all bills and other documents
55 showing the cost of construction or such other evidence of such cost as
56 shall be satisfactory to the department of housing preservation and
S. 8578 297
1 development, including, without limitation, certification of cost by a
2 certified public accountant in accordance with generally accepted
3 accounting principles. Each additional agency to which functions are
4 assigned by this section may adopt and promulgate rules and regulations
5 for the effectuation of the purposes of this section.
6 j. The department of housing preservation and development may require
7 a filing fee in an amount as provided by the rules and regulations
8 promulgated by the department of housing preservation and development
9 pursuant to subdivision i of this section.
10 k. Any person who shall knowingly and wilfully make any false state-
11 ments as to any material matter in any application for the benefits of
12 this section shall be guilty of an offense punishable by a fine of not
13 more than five hundred dollars or imprisonment for not more than ninety
14 days, or both.
15 l. If any provision of this section or its application to any person
16 shall be held invalid, the remainder of this section and the applicabil-
17 ity of its provisions to other persons or circumstances shall not be
18 affected thereby.
19 § 11-245.1 Site eligibility limitations on benefits pursuant to
20 section four hundred twenty-one-a of the real property tax law.
21 (a) Where eligibility for benefits under section four hundred twenty-
22 one-a of the real property tax law is sought for any construction
23 commenced on or after November twenty-ninth, nineteen hundred eighty-
24 five and before May twelfth, two thousand on the basis that such
25 construction shall take place on land which, on the date thirty-six
26 months prior to the commencement of such construction, was improved with
27 a nonresidential building or buildings and was under-utilized, the
28 under-utilization of the land must have been such that each building or
29 buildings:
30 (1) contained no more than the permissible floor area ratio for
31 nonresidential buildings in the zoning district in question and a
32 floor area ratio which was twenty percent or less of the maximum
33 floor area ratio for residential buildings,
34 (2) had an assessed valuation equal to or less than twenty percent
35 of the assessed valuation of the land on which the building or
36 buildings were situated, or
37 (3) by reason of the configuration of the building, or substantial
38 structural defects not brought about by deferred maintenance prac-
39 tices or intentional conduct, could no longer be functionally or
40 economically utilized in the capacity in which it was formerly
41 utilized.
42 For purposes of this subdivision and subdivisions (a-1) through (a-4)
43 of this section, construction shall be deemed to have commenced on the
44 date immediately following the issuance by the department of buildings
45 of a new building permit for an entire new building (based upon archi-
46 tectural, plumbing and structural plans approved by such department) on
47 which the excavation and the construction of initial footings and foun-
48 dations commences in good faith, on vacant land and for the entire
49 project site, as certified by an architect or professional engineer
50 licensed in the state, provided that installation of footings and foun-
51 dations is similarly certified by such architect or engineer to have
52 been completed without undue delay.
53 (a-1) Except as provided in subdivision (a-2) of this section, where
54 eligibility for benefits under section four hundred twenty-one-a of the
55 real property tax law is sought for any construction commenced on or
56 after May twelfth, two thousand and before the effective date of subdi-
S. 8578 298
1 visions (a-3) and (a-4) of this section on the basis that such
2 construction shall take place on land which, on the date thirty-six
3 months prior to the commencement of such construction, was improved with
4 a nonresidential building or buildings and was under-utilized, the
5 under-utilization of the land must have been such that each building or
6 buildings:
7 (1) contained no more than the permissible floor area ratio for
8 nonresidential buildings in the zoning district in question and a
9 floor area ratio which was seventy-five percent or less of the maxi-
10 mum floor area ratio for residential buildings,
11 (2) had an assessed valuation equal to or less than seventy-five
12 percent of the assessed valuation of the land on which the building
13 or buildings were situated, or
14 (3) by reason of the configuration of the building, or substantial
15 structural defects not brought about by deferred maintenance prac-
16 tices or intentional conduct, could no longer be functionally or
17 economically utilized in the capacity in which it was formerly
18 utilized.
19 For purposes of this subdivision, construction shall be deemed to have
20 commenced as provided in subdivision (a) of this section.
21 (a-2) Where eligibility for benefits under section four hundred twen-
22 ty-one-a of the real property tax law is sought for any construction on
23 any tax lot now existing or hereafter created which is located south of
24 or adjacent to either side of one hundred tenth street in the borough of
25 Manhattan which construction commenced on or after May twelfth, two
26 thousand and before the effective date of subdivisions (a-3) and (a-4)
27 of this section on the basis that such construction shall take place on
28 land which, on the date thirty-six months prior to the commencement of
29 such construction, was improved with a nonresidential building or build-
30 ings and was under-utilized, the under-utilization of the land must have
31 been such that each building or buildings:
32 (1) contained no more than the permissible floor area ratio for
33 nonresidential buildings in the zoning district in question and a
34 floor area ratio which was fifty percent or less of the maximum
35 floor area ratio for residential buildings,
36 (2) had an assessed valuation equal to or less than fifty percent of
37 the assessed valuation of the land on which the building or build-
38 ings were situated, or
39 (3) by reason of the configuration of the building, or substantial
40 structural defects not brought about by deferred maintenance prac-
41 tices or intentional conduct, could no longer be functionally or
42 economically utilized in the capacity in which it was formerly
43 utilized.
44 For purposes of this subdivision, construction shall be deemed to have
45 commenced as provided in subdivision (a) of this section.
46 (a-3) Except as provided in subdivision (a-4) of this section, where
47 eligibility for benefits under section four hundred twenty-one-a of the
48 real property tax law is sought for any construction commenced on or
49 after the effective date of this subdivision on the basis that such
50 construction shall take place on land which, on the date thirty-six
51 months prior to the commencement of such construction, was improved with
52 a nonresidential building or buildings and was under-utilized, the
53 under-utilization of the land must have been such that each building or
54 buildings:
55 (1) contained no more than the permissible floor area ratio for
56 nonresidential buildings in the zoning district in question and
S. 8578 299
1 either (i) had a floor area ratio which was seventy-five percent or
2 less of the maximum floor area ratio for residential buildings in
3 such zoning district, or (ii) if the land was not zoned to permit
4 residential use on the date thirty-six months prior to the commence-
5 ment of construction, had a floor area ratio which was seventy-five
6 percent or less of the floor area ratio of the residential building
7 which replaces such non-residential building,
8 (2) had an assessed valuation equal to or less than seventy-five
9 percent of the assessed valuation of the land on which the building
10 or buildings were situated, or
11 (3) by reason of the configuration of the building, or substantial
12 structural defects not brought about by deferred maintenance prac-
13 tices or intentional conduct, could no longer be functionally or
14 economically utilized in the capacity in which it was formerly
15 utilized.
16 For purposes of this subdivision, construction shall be deemed to have
17 commenced as provided in subdivision (a) of this section.
18 (a-4) Where eligibility for benefits under section four hundred twen-
19 ty-one-a of the real property tax law is sought for any construction on
20 any tax lot now existing or hereafter created which is located south of
21 or adjacent to either side of one hundred tenth street in the borough of
22 Manhattan which construction commenced on or after the effective date of
23 this subdivision on the basis that such construction shall take place on
24 land which, on the date thirty-six months prior to the commencement of
25 such construction, was improved with a nonresidential building or build-
26 ings and was under-utilized, the under-utilization of the land must have
27 been such that each building or buildings:
28 (1) contained no more than the permissible floor area ratio for
29 nonresidential buildings in the zoning district in question and
30 either (i) had a floor area ratio which was fifty percent or less of
31 the maximum floor area ratio for residential buildings in such
32 zoning district, or (ii) if the land was not zoned to permit resi-
33 dential use on the date thirty-six months prior to the commencement
34 of construction, had a floor area ratio which was fifty percent or
35 less of the floor area ratio of the residential building which
36 replaces such non-residential building,
37 (2) had an assessed valuation equal to or less than fifty percent of
38 the assessed valuation of the land on which the building or build-
39 ings were situated, or
40 (3) by reason of the configuration of the building, or substantial
41 structural defects not brought about by deferred maintenance prac-
42 tices or intentional conduct, could no longer be functionally or
43 economically utilized in the capacity in which it was formerly
44 utilized.
45 For purposes of this subdivision, construction shall be deemed to have
46 commenced as provided in subdivision (a) of this section.
47 (b) The department of housing preservation and development may promul-
48 gate rules and regulations for the effectuation of the purposes of this
49 section.
50 (c) The limitations on benefits contained in this section shall be in
51 addition to those contained in any other law or regulation.
52 § 11-245.1-a Boundary review commission. (a) There shall be estab-
53 lished a boundary review commission consisting of eleven members,
54 including the commissioner of finance, the commissioner of housing pres-
55 ervation and development, the commissioner of buildings, the chairperson
56 of the department of city planning, the director of the office of
S. 8578 300
1 management and budget, the executive director of the board of standards
2 and appeals and five members chosen by the speaker of the council. The
3 appointees of the speaker of the council shall serve at the pleasure of
4 the speaker. The commission shall elect a chairperson from among its
5 members.
6 (b) The boundary review commission shall undertake a biennial review
7 of the tax benefit program established pursuant to section four hundred
8 twenty-one-a of the real property tax law to determine whether the areas
9 for which the tax benefits are restricted pursuant to those provisions
10 of the administrative code which relate to such program should be
11 revised in any manner.
12 (c) In conducting a review to determine whether geographic exclusion
13 zones restricting benefits provided pursuant to section four hundred
14 twenty-one-a of the real property tax law should be revised, the commis-
15 sion shall review measurers of housing activity and housing market
16 conditions throughout the city including (i) the amount of new develop-
17 ment; (ii) values in land sales, residential sales prices and rents;
18 (iii) trends in land sales, residential sales prices and rents and other
19 development trend data including land use trends, lot consolidation and
20 board of standards and appeals actions; (iv) development potential; (v)
21 relationship between volume of potential development and existing hous-
22 ing; and (vi) financial feasibility of development with and without the
23 benefits provided pursuant to section four hundred twenty-one-a of the
24 real property tax law.
25 (d) On or before December first of each even numbered year following
26 the effective date of this section, such commission shall submit a
27 report to the speaker of the council and the mayor on its deliberations
28 and shall include recommendations for revisions to such boundaries that
29 it deems appropriate or why no revisions were recommended, including the
30 methodology by which it applied the criteria in subdivision (c) of this
31 section to arrive at its recommendations, and all data used to make such
32 recommendations. Any recommendations shall be consistent with the
33 provisions of section four hundred twenty-one-a of the real property tax
34 law.
35 § 11-245.1-b Limitations on benefits pursuant to section four hundred
36 twenty-one-a of the real property tax law. (a) As used in this section,
37 the following terms shall have the following meanings:
38 (1) "Residential tax lot" shall mean a tax lot that contains dwelling
39 units.
40 (2) "Non-residential tax lot" shall mean a tax lot that does not
41 contain any dwelling units.
42 (3) "Annual limit" shall mean sixty-five thousand dollars, which
43 amount shall be increased by three percent, compounded annually, on each
44 taxable status date following the first anniversary of the effective
45 date of the local law that added this section.
46 (4) "Certificate of occupancy" shall mean the first certificate of
47 occupancy covering all residential areas of the building on or contain-
48 ing a tax lot.
49 (5) "Unit count" shall mean (i) in the case of a residential tax lot
50 that does not contain any commercial, community facility or accessory
51 use space, the number of dwelling units in such tax lot, and (ii) in the
52 case of a residential tax lot that contains commercial, community facil-
53 ity or accessory use space, the number of dwelling units in such tax lot
54 plus one.
55 (6) "Exemption cap" shall mean the unit count multiplied by the annual
56 limit.
S. 8578 301
1 (b) The provisions of this section shall apply only to projects that
2 commence construction on or after the effective date of this section.
3 (c) No benefits under section four hundred twenty-one-a of the real
4 property tax law shall be conferred for any multiple dwelling containing
5 fewer than four dwelling units, as set forth in the certificate of occu-
6 pancy, unless the construction of such multiple dwelling is carried out
7 with substantial assistance of grants, loans or subsidies from any
8 federal, state or local agency or instrumentality where such assistance
9 is provided pursuant to a program for the development of affordable
10 housing.
11 (d) The portion of the assessed valuation of any residential tax lot
12 exempted from real property taxation in any year pursuant to section
13 four hundred twenty-one-a of the real property tax law shall not exceed
14 the exemption cap on or after the first taxable status date after the
15 building on or containing such tax lot receives its certificate of occu-
16 pancy unless, in accordance with a regulatory agreement with or approved
17 by the department of housing preservation and development that is appli-
18 cable to such tax lot, (1) the construction of such building is carried
19 out with substantial assistance of grants, loans or subsidies from any
20 federal, state or local agency or instrumentality and such assistance is
21 provided pursuant to a program for the development of affordable hous-
22 ing, or (2) the department of housing preservation and development has
23 imposed a requirement or has certified that twenty per cent of the units
24 be restricted income units. All such restricted income units must be
25 situated onsite. For the purposes of this section, "onsite" shall mean
26 that restricted income units shall be situated within the building or
27 buildings for which benefits pursuant to section four hundred twenty-
28 one-a of the real property tax law are being granted. A dwelling unit
29 that is located in two or more tax lots shall be ineligible to receive
30 any benefits under section four hundred twenty-one-a of the real proper-
31 ty tax law. The portion of the assessed valuation of all non-residential
32 tax lots in the building on or containing such non-residential tax lots
33 exempted from real property taxation in any year pursuant to section
34 four hundred twenty-one-a of the real property tax law shall not exceed
35 a cumulative total equal to the annual limit on or after the first taxa-
36 ble status date after the building on or containing such non-residential
37 tax lots receives its certificate of occupancy.
38 (e) A new multiple dwelling that is situated in (1) a neighborhood
39 preservation program area as determined by the department of housing
40 preservation and development as of June first, nineteen hundred eighty-
41 five, (2) a neighborhood preservation area as determined by the New York
42 city planning commission as of June first, nineteen hundred eighty-five,
43 (3) an area that was eligible for mortgage insurance provided by the
44 rehabilitation mortgage insurance corporation as of May first, nineteen
45 hundred ninety-two, or (4) an area receiving funding for a neighborhood
46 preservation project pursuant to the neighborhood reinvestment corpo-
47 ration act (42 U.S.C. §§ 8101 et seq.) as of June first, nineteen
48 hundred eighty-five, shall only be eligible for the benefits available
49 pursuant to subparagraph (iii) of paragraph (a) of subdivision two of
50 section four hundred twenty-one-a of the real property tax law if:
51 a. the construction is carried out with substantial assistance of
52 grants, loans or subsidies from any federal, state or local agency or
53 instrumentality and such assistance is provided pursuant to a program
54 for the development of affordable housing, or
55 b. the department of housing preservation and development has imposed
56 a requirement or has certified that twenty percent of the units be
S. 8578 302
1 restricted income units. All such restricted income units must be situ-
2 ated onsite.
3 (f) The department of housing preservation and development may promul-
4 gate rules and regulations to effectuate the purposes of this section.
5 (g) The limitations on eligibility for benefits contained in this
6 section shall be in addition to those contained in any other law, rule
7 or regulation.
8 (h) Notwithstanding anything to the contrary contained herein, the
9 limitations on eligibility for benefits contained in this section shall
10 not apply to a covered project as defined in subparagraph (i) of para-
11 graph a of subdivision six of section four hundred twenty-one-a of the
12 real property tax law.
13 § 11-245.2 Exemption for real property of certain water-works corpo-
14 rations. Real property owned by a water-works corporation subject to the
15 provisions of the public service law and used exclusively for the sale,
16 furnishing and distribution of water for domestic, commercial and public
17 purposes, shall not be taxable.
18 § 11-245.3 Exemption for persons sixty-five years of age or over. 1.
19 Real property owned by one or more persons, each of whom is sixty-five
20 years of age or over, or real property owned by husband and wife or by
21 siblings, one of whom is sixty-five years of age or over, or real prop-
22 erty owned by one or more persons, some of whom qualify under this
23 section and section 11-245.4 of this part shall be exempt from taxes on
24 real estate to the extent of fifty per centum of the assessed valuation
25 thereof. For the purposes of this section, siblings shall mean a brother
26 or a sister, whether related through halfblood, whole blood or adoption.
27 2. Exemption from taxation for school purposes shall not be granted in
28 the case of real property where a child resides if such child attends a
29 public school of elementary or secondary education.
30 3. No exemption shall be granted:
31 (a) if the income of the owner or the combined income of the owners of
32 the property exceeds the sum of twenty-six thousand dollars beginning
33 July first, two thousand six, twenty-seven thousand dollars beginning
34 July first, two thousand seven, twenty-eight thousand dollars beginning
35 July first, two thousand eight, twenty-nine thousand dollars beginning
36 July first, two thousand nine, and fifty thousand dollars beginning July
37 first, two thousand seventeen for the income tax year immediately
38 preceding the date of making application for exemption. Income tax year
39 shall mean the twelve-month period for which the owner or owners filed a
40 federal personal income tax return, or if no such return is filed, the
41 calendar year. Where title is vested in either the husband or the wife,
42 their combined income may not exceed such sum, except where the husband
43 or wife, or ex-husband or ex-wife is absent from the property as
44 provided in subparagraph (ii) of paragraph (d) of this subdivision, then
45 only the income of the spouse or ex-spouse residing on the property
46 shall be considered and may not exceed such sum. Such income shall
47 include social security and retirement benefits, interest, dividends,
48 total gain from the sale or exchange of a capital asset which may be
49 offset by a loss from the sale or exchange of a capital asset in the
50 same income tax year, net rental income, salary or earnings, and net
51 income from self-employment, but shall not include gifts, inheritances,
52 a return of capital, payments made to individuals because of their
53 status as victims of Nazi persecution as defined in P.L. 103-286, monies
54 earned through employment in the federal foster grandparent program, and
55 veterans disability compensation as defined in title 38 of the United
56 States Code, and any such income shall be offset by all medical and
S. 8578 303
1 prescription drug expenses actually paid which were not reimbursed or
2 paid for by insurance. In computing net rental income and net income
3 from self-employment no depreciation deduction shall be allowed for the
4 exhaustion, wear and tear of real or personal property held for the
5 production of income.
6 (b) unless the title of the property shall have been vested in the
7 owner or one of the owners of the property for at least twelve consec-
8 utive months prior to the date of making application for exemption,
9 provided, however, that in the event of the death of either husband or
10 wife in whose name title of the property shall have been vested at the
11 time of death and then becomes vested solely in the survivor by virtue
12 of devise by or descent from the deceased husband or wife, the time of
13 ownership of the property by the deceased husband or wife shall be
14 deemed also a time of ownership by the survivor and such ownership shall
15 be deemed continuous for the purposes of computing such period of twelve
16 consecutive months, and provided further, that in the event of a trans-
17 fer by either husband or wife to the other spouse of all or part of the
18 title to the property, the time of ownership of the property by the
19 transferer spouse shall be deemed also a time of ownership by the trans-
20 feree spouse and such ownership shall be deemed continuous for the
21 purposes of computing such period of twelve consecutive months, and
22 provided further, that where property of the owner or owners has been
23 acquired to replace property formerly owned by such owner or owners and
24 taken by eminent domain or other involuntary proceeding, except a tax
25 sale, and where a residence is sold and replaced with another within one
26 year and both are within the state, the period of ownership of the
27 former property shall be combined with the period of ownership of the
28 property for which application is made for exemption and such periods of
29 ownership shall be deemed to be consecutive for purposes of this
30 section. Where the owner or owners transfer title to property which as
31 of the date of transfer was exempt from taxation under the provisions of
32 this section, the reacquisition of title by such owner or owners within
33 nine months of the date of transfer shall be deemed to satisfy the
34 requirement of this paragraph that the title of the property shall have
35 been vested in the owner or one of the owners for such period of twelve
36 consecutive months. Where, upon or subsequent to the death of an owner
37 or owners, title to property which as of the date of such death was
38 exempt from taxation under such provisions, becomes vested, by virtue of
39 devise or descent from the deceased owner or owners, or by transfer by
40 any other means within nine months after such death, solely in a person
41 or persons who, at the time of such death, maintained such property as a
42 primary residence, the requirement of this paragraph that the title of
43 the property shall have been vested in the owner or one of the owners
44 for such period of twelve consecutive months shall be deemed satisfied;
45 (c) unless the property is used exclusively for residential purposes,
46 provided, however, that in the event any portion of such property is not
47 so used exclusively for residential purposes but is used for other
48 purposes, such portion shall be subject to taxation and the remaining
49 portion only shall be entitled to the exemption provided by this
50 section;
51 (d) unless the property is the legal residence of and is occupied in
52 whole or in part by the owner or by all of the owners of the property;
53 except where, (i) an owner is absent from the residence while receiving
54 health-related care as an inpatient of a residential health care facili-
55 ty, as defined in section twenty-eight hundred one of the public health
56 law, provided that any income accruing to that person shall be income
S. 8578 304
1 only to the extent that it exceeds the amount paid by such owner,
2 spouse, or co-owner for care in the facility, and provided further, that
3 during such confinement such property is not occupied by other than the
4 spouse or co-owner of such owner; or, (ii) the real property is owned by
5 a husband and/or wife, or an ex-husband and/or an ex-wife, and either is
6 absent from the residence due to divorce, legal separation or abandon-
7 ment and all other provisions of this section are met provided that
8 where an exemption was previously granted when both resided on the prop-
9 erty, then the person remaining on the real property shall be sixty-two
10 years of age or over.
11 4. Application for such exemption must be made by the owner, or all of
12 the owners of the property, on forms prescribed by the state board to be
13 furnished by the department of finance and shall furnish the information
14 and must be executed in the manner required or prescribed in such form
15 and shall be filed in the department of finance in the borough in which
16 the real property is located between the fifteenth day of January and
17 the fifteenth day of March. Notwithstanding any other provision of law,
18 any person otherwise qualifying under this section shall not be denied
19 the exemption under this section if he or she becomes sixty-five years
20 of age after the taxable status date and on or before December thirty-
21 first of the same year.
22 5. At least sixty days prior to the fifteenth day of January the
23 department of finance shall mail to each person who was granted
24 exemption pursuant to this section on the latest completed assessment
25 roll an application form and a notice that such application must be
26 filed between the fifteenth day of January and the fifteenth day of
27 March every two years from the year in which such exemption was granted
28 and be approved in order for the exemption to be granted. The department
29 of finance shall, within three days of the completion and filing of the
30 tentative assessment roll, notify by mail any applicant who has included
31 with his application at least one self-addressed, prepaid envelope, of
32 the approval or denial of the application; provided, however, where an
33 applicant has included two such envelopes, the department of finance
34 shall, upon the filing of the application, send by mail, notice of
35 receipt of that application. Where an applicant is entitled to notice of
36 denial provided herein, such notice shall state the reasons for such
37 denial and shall further state that such determination is reviewable in
38 a manner provided by law. Failure to mail any such application form or
39 notices or the failure of such person to receive any or all of the same
40 shall not prevent the levy, collection and enforcement of the payment of
41 the taxes on property owned by such person.
42 6. Any conviction of having made any willful false statement in the
43 application for such exemption shall be punishable by a fine of not more
44 than one hundred dollars and shall disqualify the applicant or appli-
45 cants from further exemption for a period of five years.
46 7. Notwithstanding the maximum income exemption eligibility level
47 provided in subdivision three of this section, an exemption, subject to
48 all other provisions of this section, shall be granted as indicated in
49 the following schedule:
50 Annual Income Percentage Assessed Valuation
51 as of July 1, 2006 Exempt From Taxation
52 More than $26,000 but less than $27,000 45 per centum
53 $27,000 or more but less than $28,000 40 per centum
54 $28,000 or more but less than $29,000 35 per centum
S. 8578 305
1 $29,000 or more but less than $29,900 30 per centum
2 $29,900 or more but less than $30,800 25 per centum
3 $30,800 or more but less than $31,700 20 per centum
4 $31,700 or more but less than $32,600 15 per centum
5 $32,600 or more but less than $33,500 10 per centum
6 $33,500 or more but less than $34,400 5 per centum
7 Percentage Assessed Valuation
8 Annual Income as of July 1, 2007 Exempt From Taxation
9 More than $27,000 but less than $28,000 45 per centum
10 $28,000 or more but less than $29,000 40 per centum
11 $29,000 or more but less than $30,000 35 per centum
12 $30,000 or more but less than $30,900 30 per centum
13 $30,900 or more but less than $31,800 25 per centum
14 $31,800 or more but less than $32,700 20 per centum
15 $32,700 or more but less than $33,600 15 per centum
16 $33,600 or more but less than $34,500 10 per centum
17 $34,500 or more but less than $35,400 5 per centum
18 Percentage Assessed Valuation
19 Annual Income as of July 1, 2008 Exempt From Taxation
20 More than $28,000 but less than $29,000 45 per centum
21 $29,000 or more but less than $30,000 40 per centum
22 $30,000 or more but less than $31,000 35 per centum
23 $31,000 or more but less than $31,900 30 per centum
24 $31,900 or more but less than $32,800 25 per centum
25 $32,800 or more but less than $33,700 20 per centum
26 $33,700 or more but less than $34,600 15 per centum
27 $34,600 or more but less than $35,500 10 per centum
28 $35,500 or more but less than $36,400 5 per centum
29 Percentage Assessed Valuation
30 Annual Income as of July 1, 2009 Exempt From Taxation
31 More than $29,000 but less than $30,000 45 per centum
32 $30,000 or more but less than $31,000 40 per centum
33 $31,000 or more but less than $32,000 35 per centum
34 $32,000 or more but less than $32,900 30 per centum
35 $32,900 or more but less than $33,800 25 per centum
36 $33,800 or more but less than $34,700 20 per centum
37 $34,700 or more but less than $35,600 15 per centum
38 $35,600 or more but less than $36,500 10 per centum
39 $36,500 or more but less than $37,400 5 per centum
40 Annual Income as of July 1, 2017 Percentage Assessed Valuation
41 Exempt From Taxation
42 More than $50,000 but less than $51,000 45 per centum
43 $51,000 or more but less than $52,000 40 per centum
44 $52,000 or more but less than $53,000 35 per centum
45 $53,000 or more but less than $53,900 30 per centum
46 $53,900 or more but less than $54,800 25 per centum
47 $54,800 or more but less than $55,700 20 per centum
48 $55,700 or more but less than $56,600 15 per centum
S. 8578 306
1 $56,600 or more but less than $57,500 10 per centum
2 $57,500 or more but less than $58,400 5 per centum
3 8. Any exemption provided by this section shall be computed after all
4 partial exemptions allowed by law have been subtracted from the total
5 amount assessed.
6 9. Exemption from taxation as provided in this section on real proper-
7 ty owned by husband and wife, one of whom is sixty-five years of age or
8 older, once granted, shall not be rescinded solely because of the death
9 of the older spouse so long as the surviving spouse is at least sixty-
10 two years of age.
11 10. a. For the purposes of this section, title to that portion of real
12 property owned by a cooperative apartment corporation in which a
13 tenant-stockholder of such corporation resides and which is represented
14 by his or her share or shares of stock in such corporation as determined
15 by its or their proportional relationship to the total outstanding stock
16 of the corporation, including that owned by the corporation, shall be
17 deemed to be vested in such tenant-stockholder. That proportion of the
18 assessment of real property owned by a cooperative apartment corpo-
19 ration, determined by the relationship of such real property vested in
20 such tenant-stockholder to such entire parcel and the buildings thereon
21 owned by such cooperative apartment corporation in which such tenant-
22 stockholder resides, shall be subject to exemption from taxation pursu-
23 ant to this section and any exemption so granted shall be credited by
24 the department of finance against the assessed valuation of such real
25 property; the reduction in real property taxes realized thereby shall be
26 credited by the cooperative apartment corporation against the amount of
27 such taxes otherwise payable by or chargeable to such tenant-stockhold-
28 er. Each cooperative apartment corporation shall notify each tenant-
29 stockholder in residence thereof of such provisions as are set forth in
30 this section.
31 b. Notwithstanding any other provision of law, a tenant-stockholder
32 who resides in a dwelling which is subject to the provisions of either
33 article two, four, five or eleven of the private housing finance law and
34 who is eligible for a rent increase exemption pursuant to chapter seven
35 of title twenty-six of the code of the preceding municipality shall not
36 be eligible for an exemption pursuant to this subdivision. Notwithstand-
37 ing any other provision of law, a tenant-stockholder who resides in a
38 dwelling which is subject to the provisions of either article two, four,
39 five or eleven of the private housing finance law and who is not eligi-
40 ble for a rent increase exemption pursuant to chapter seven of title
41 twenty-six of this code but who meets the requirements for eligibility
42 for an exemption pursuant to this section shall be eligible for such
43 exemption provided that such exemption shall be in an amount determined
44 by multiplying the exemption otherwise allowable pursuant to this
45 section by a fraction having a numerator equal to the amount of real
46 property taxes or payments in lieu of taxes that were paid with respect
47 to such dwelling and a denominator equal to the full amount of real
48 property taxes that would have been owed with respect to such dwelling
49 had it not been granted an exemption or abatement of real property taxes
50 pursuant to any provision of law, provided, however, that any reduction
51 in real property taxes received with respect to such dwelling pursuant
52 to chapter seven of title twenty-six of this code or pursuant to this
53 section shall not be considered in calculating such numerator. Any
54 tenant-stockholder who resides in a dwelling which was or continues to
55 be subject to a mortgage insured or initially insured by the federal
S. 8578 307
1 government pursuant to section two hundred thirteen of the national
2 housing act, as amended, and who is eligible for both a rent increase
3 exemption pursuant to chapter seven of title twenty-six of this code and
4 an exemption pursuant to this subdivision, may apply for and receive
5 either a rent increase exemption pursuant to such chapter or an
6 exemption pursuant to this subdivision, but not both.
7 11. Exemption Option. Notwithstanding any provision of this part to
8 the contrary, real property owned by one or more persons where one of
9 such owners qualifies for a real property tax exemption pursuant to this
10 section or section 11-245.4 of this part, and another of such owners
11 qualifies for a different tax exemption pursuant to such sections of
12 this part as authorized by state law, such owners shall have the option
13 of choosing the one exemption which is most beneficial to such owners.
14 Such owners shall not be prohibited from taking one such exemption sole-
15 ly on the basis that such owners qualify for more than one exemption and
16 therefore are not eligible for any exemptions.
17 § 11-245.4 Exemption for persons with disabilities. 1. (a) Real prop-
18 erty owned by one or more persons with disabilities, or real property
19 owned by a husband, wife, or both, or by siblings, at least one of whom
20 has a disability, or real property owned by one or more persons, some of
21 whom qualify under this section and section 11-245.3 of this part, and
22 whose income, as hereafter defined, is limited by reason of such disa-
23 bility, shall be exempt from taxes on real estate to the extent of fifty
24 per centum of the assessed valuation thereof as hereinafter provided.
25 For purposes of this section, sibling shall mean a brother or a sister,
26 whether related through half blood, whole blood or adoption.
27 (b) For purposes of this section, a person with a disability is one
28 who has a physical or mental impairment, not due to current use of alco-
29 hol or illegal drug use, which substantially limits such person's abili-
30 ty to engage in one or more major life activities, such as caring for
31 one's self, performing manual tasks, walking, seeing, hearing, speaking,
32 breathing, learning and working, and who (i) is certified to receive
33 social security disability insurance (SSDI) or supplemental security
34 income (SSI) benefits under the federal social security act, or (ii) is
35 certified to receive railroad retirement disability benefits under the
36 federal railroad retirement act, or (iii) has received a certificate
37 from the state commission for the blind and visually handicapped stating
38 that such person is legally blind, or (iv) is certified to receive a
39 United States postal service disability pension. An award letter from
40 the social security administration or the railroad retirement board or a
41 certificate from the state commission for the blind and visually hand-
42 icapped or an award letter from the United States postal service shall
43 be submitted as proof of disability.
44 2. Exemption from taxation for school purposes shall not be granted in
45 the case of real property where a child resides if such child attends a
46 public school of elementary or secondary education.
47 3. No exemption shall be granted:
48 (a) if the income of the owner or the combined income of the owners of
49 the property for the income tax year immediately preceding the date of
50 making application for exemption exceeds the sum of twenty-six thousand
51 dollars beginning July first, two thousand six, twenty-seven thousand
52 dollars beginning July first, two thousand seven, twenty-eight thousand
53 dollars beginning July first, two thousand eight, twenty-nine thousand
54 dollars beginning July first, two thousand nine, and fifty thousand
55 dollars beginning July first, two thousand seventeen. Income tax year
56 shall mean the twelve-month period for which the owner or owners filed a
S. 8578 308
1 federal personal income tax return, or if no such return is filed, the
2 calendar year. Where title is vested in either the husband or the wife,
3 their combined income may not exceed such sum, except where the husband
4 or wife, or ex-husband or ex-wife is absent from the property due to
5 divorce, legal separation or abandonment, then only the income of the
6 spouse or ex-spouse residing on the property shall be considered and may
7 not exceed such sum. Such income shall include social security and
8 retirement benefits, interest, dividends, total gain from the sale or
9 exchange of a capital asset which may be offset by a loss from the sale
10 or exchange of a capital asset in the same income tax year, net rental
11 income, salary or earnings, and net income from self-employment, but
12 shall not include a return of capital, gifts, inheritances or monies
13 earned through employment in the federal foster grandparent program and
14 any such income shall be offset by all medical and prescription drug
15 expenses actually paid which were not reimbursed or paid for by insur-
16 ance. In computing net rental income and net income from self-employment
17 no depreciation deduction shall be allowed for the exhaustion, wear and
18 tear of real or personal property held for the production of income;
19 (b) unless the property is used exclusively for residential purposes,
20 provided, however, that in the event any portion of such property is not
21 so used exclusively for residential purposes but is used for other
22 purposes, such portion shall be subject to taxation and the remaining
23 portion only shall be entitled to the exemption provided by this
24 section;
25 (c) unless the real property is the legal residence of and is occupied
26 in whole or in part by the disabled person; except where the disabled
27 person is absent from the residence while receiving health-related care
28 as an inpatient of a residential health care facility, as defined in
29 section twenty-eight hundred one of the public health law, provided that
30 any income accruing to that person shall be considered income for
31 purposes of this section only to the extent that it exceeds the amount
32 paid by such person or spouse or sibling of such person for care in the
33 facility.
34 4. Application for such exemption must be made annually by the owner,
35 or all of the owners of the property, on forms prescribed by the state
36 board, and shall be filed with the department of finance on or before
37 the fifteenth day of March of the appropriate year; provided, however,
38 proof of a permanent disability need be submitted only in the year
39 exemption pursuant to this section is first sought or the disability is
40 first determined to be permanent.
41 5. At least sixty days prior to the fifteenth day of March of the
42 appropriate year, the department of finance shall mail to each person
43 who was granted exemption pursuant to this section on the latest
44 completed assessment roll an application form and a notice that such
45 application must be filed on or before the fifteenth day of March and be
46 approved in order for the exemption to continue to be granted. Failure
47 to mail such application form or the failure of such person to receive
48 the same shall not prevent the levy, collection and enforcement of the
49 payment of the taxes on property owned by such person.
50 6. Notwithstanding the maximum income exemption eligibility level
51 provided in subdivision three of this section, an exemption, subject to
52 all other provisions of this section, shall be granted as indicated in
53 the following schedule:
S. 8578 309
1 Percentage Assessed Valuation
2 Annual Income as of July 1, 2006 Exempt From Taxation
3 More than $26,000 but less than $27,000 45 per centum
4 $27,000 or more but less than $28,000 40 per centum
5 $28,000 or more but less than $29,000 35 per centum
6 $29,000 or more but less than $29,900 30 per centum
7 $29,900 or more but less than $30,800 25 per centum
8 $30,800 or more but less than $31,700 20 per centum
9 $31,700 or more but less than $32,600 15 per centum
10 $32,600 or more but less than $33,500 10 per centum
11 $33,500 or more but less than $34,400 5 per centum
12 Percentage Assessed Valuation
13 Annual Income as of July 1, 2007 Exempt From Taxation
14 More than $27,000 but less than $28,000 45 per centum
15 $28,000 or more but less than $29,000 40 per centum
16 $29,000 or more but less than $30,000 35 per centum
17 $30,000 or more but less than $30,900 30 per centum
18 $30,900 or more but less than $31,800 25 per centum
19 $31,800 or more but less than $32,700 20 per centum
20 $32,700 or more but less than $33,600 15 per centum
21 $33,600 or more but less than $34,500 10 per centum
22 $34,500 or more but less than $35,400 5 per centum
23 Percentage Assessed Valuation
24 Annual Income as of July 1, 2008 Exempt From Taxation
25 More than $28,000 but less than $29,000 45 per centum
26 $29,000 or more but less than $30,000 40 per centum
27 $30,000 or more but less than $31,000 35 per centum
28 $31,000 or more but less than $31,900 30 per centum
29 $31,900 or more but less than $32,800 25 per centum
30 $32,800 or more but less than $33,700 20 per centum
31 $33,700 or more but less than $34,600 15 per centum
32 $34,600 or more but less than $35,500 10 per centum
33 $35,500 or more but less than $36,400 5 per centum
34 Percentage Assessed Valuation
35 Annual Income as of July 1, 2009 Exempt From Taxation
36 More than $29,000 but less than $30,000 45 per centum
37 $30,000 or more but less than $31,000 40 per centum
38 $31,000 or more but less than $32,000 35 per centum
39 $32,000 or more but less than $32,900 30 per centum
40 $32,900 or more but less than $33,800 25 per centum
41 $33,800 or more but less than $34,700 20 per centum
42 $34,700 or more but less than $35,600 15 per centum
43 $35,600 or more but less than $36,500 10 per centum
44 $36,500 or more but less than $37,400 5 per centum
S. 8578 310
1 Percentage Assessed Valuation
2 Annual Income as of July 1, 2017 Exempt From Taxation
3 More than $50,000 but less than $51,000 45 per centum
4 $51,000 or more but less than $52,000 40 per centum
5 $52,000 or more but less than $53,000 35 per centum
6 $53,000 or more but less than $53,900 30 per centum
7 $53,900 or more but less than $54,800 25 per centum
8 $54,800 or more but less than $55,700 20 per centum
9 $55,700 or more but less than $56,600 15 per centum
10 $56,600 or more but less than $57,500 10 per centum
11 $57,500 or more but less than $58,400 5 per centum
12 7. Any exemption provided by this section shall be computed after all
13 other partial exemptions allowed by law have been subtracted from the
14 total amount assessed; provided, however, that no parcel may receive an
15 exemption pursuant to both this section and section 11-245.3.
16 8. (a) For purposes of this section, title to that portion of real
17 property owned by a cooperative apartment corporation in which a
18 tenant-stockholder of such corporation resides, and which is represented
19 by his or her share or shares of stock in such corporation as determined
20 by its or their proportional relationship to the total outstanding stock
21 of the corporation, including that owned by the corporation, shall be
22 deemed to be vested in such tenant-stockholder. That proportion of the
23 assessment of such real property owned by a cooperative apartment corpo-
24 ration determined by the relationship of such real property vested in
25 such tenant-stockholder to such entire parcel and the buildings thereon
26 owned by such cooperative apartment corporation in which such tenant-
27 stockholder resides shall be subject to exemption from taxation pursuant
28 to this section and any exemption so granted shall be credited by the
29 department of finance against the assessed valuation of such real prop-
30 erty; the reduction in real property taxes realized thereby shall be
31 credited by the cooperative apartment corporation against the amount of
32 such taxes otherwise payable by or chargeable to such tenant-stockhold-
33 er.
34 (b) Notwithstanding any other provision of law, a tenant-stockholder
35 who resides in a dwelling which is subject to the provisions of either
36 article two, four, five or eleven of the private housing finance law
37 shall not be eligible for an exemption pursuant to this subdivision.
38 9. Notwithstanding any other provision of law to the contrary, the
39 provisions of this section shall apply to real property held in trust
40 solely for the benefit of a person or persons who would otherwise be
41 eligible for a real property tax exemption, pursuant to subdivision one
42 of this section, were such person or persons the owner or owners of such
43 real property.
44 10. Exemption Option. Notwithstanding any provision of this part to
45 the contrary, real property owned by one or more persons where one of
46 such owners qualifies for a real property tax exemption pursuant to this
47 section or section 11-245.3 of this part, and another of such owners
48 qualifies for a different tax exemption pursuant to such sections of
49 this part as authorized by state law, such owners shall have the option
50 of choosing the one exemption which is most beneficial to such owners.
51 Such owners shall not be prohibited from taking one such exemption sole-
52 ly on the basis that such owners qualify for more than one exemption and
53 therefore are not eligible for any exemptions.
S. 8578 311
1 § 11-245.45 Exemption for veterans. Pursuant to paragraph (d) of
2 subdivision eight of section four hundred fifty-eight of the real prop-
3 erty tax law, the city hereby authorizes real property owned by a coop-
4 erative apartment corporation to be exempt from taxation in accordance
5 with such section and any local laws adopted pursuant to such section
6 beginning July first, nineteen hundred ninety-eight.
7 § 11-245.46 Exemption for veterans; taxes for school purposes
8 exempted. Pursuant to paragraph three of subdivision one of section
9 four hundred fifty-eight of the real property tax law, the city hereby
10 provides that the exemption authorized pursuant to such section shall be
11 applicable to taxes for school purposes.
12 § 11-245.5 Alternative exemption for veterans. Pursuant to paragraph
13 (d) of subdivision six of section four hundred fifty-eight-a of the real
14 property tax law, the city hereby authorizes real property owned by a
15 cooperative apartment corporation to be exempt from taxation in accord-
16 ance with such section and any local laws adopted pursuant to such
17 section beginning July first, nineteen hundred ninety-eight.
18 § 11-245.6 Alternative exemption for veterans; maximum exemptions
19 allowable. Pursuant to subparagraph (ii) of paragraph (d) of subdivision
20 two of section four hundred fifty-eight-a of the real property tax law,
21 the city hereby increases the maximum exemptions allowable in paragraphs
22 (a), (b) and (c) of subdivision two of section four hundred
23 fifty-eight-a of the real property tax law. The maximum exemption allow-
24 able in such paragraph (a) shall be fifteen percent of the assessed
25 value of the qualifying residential real property; provided, however,
26 that such exemption shall not exceed forty-eight thousand dollars or the
27 product of forty-eight thousand dollars multiplied by the latest class
28 ratio, whichever is less. In addition to the exemption provided by such
29 paragraph (a), as increased by this section, the maximum exemption
30 allowable in such paragraph (b) shall be ten percent of the assessed
31 value of the qualifying residential real property; provided, however,
32 that such exemption shall not exceed thirty-two thousand dollars or the
33 product of thirty-two thousand dollars multiplied by the latest class
34 ratio, whichever is less. In addition to the exemptions provided by such
35 paragraphs (a) and (b), as increased by this section, the maximum
36 exemption allowable in such paragraph (c) shall be the product of the
37 assessed value of the qualifying residential real property multiplied by
38 fifty percent of the veteran's disability rating; provided, however,
39 that such exemption shall not exceed one hundred sixty thousand dollars
40 or the product of one hundred sixty thousand dollars multiplied by the
41 latest class ratio, whichever is less. The maximum exemptions allowable
42 in such paragraphs (a), (b) and (c), as increased by this section, shall
43 not apply to any assessment roll completed and filed prior to the first
44 day of January, two thousand six.
45 § 11-245.7 Alternative exemption for veterans; gold star parent.
46 Pursuant to paragraph (b) of subdivision seven of section four hundred
47 fifty-eight-a of the real property tax law, and in accordance with such
48 section and any local laws adopted pursuant thereto, the city hereby
49 includes a gold star parent within the definition of "qualified owner"
50 as provided in paragraph (c) of subdivision one of such section, and
51 includes property owned by a gold star parent within the definition of
52 "qualifying residential real property" as provided in paragraph (d) of
53 subdivision one of such section, provided that such property is the
54 primary residence of the gold star parent.
55 § 11-245.75 Alternative exemption for veterans; school district taxa-
56 tion exempted. Pursuant to subparagraph (i) of paragraph (d) of subdivi-
S. 8578 312
1 sion two of section four hundred fifty-eight-a of the real property tax
2 law, the city hereby provides that the exemptions allowable in para-
3 graphs (a), (b) and (c) of subdivision two of section four hundred
4 fifty-eight-a of the real property tax law shall be applicable to school
5 district taxation.
6 § 11-245.8 ENERGY STAR appliances. a. For the purposes of this
7 section, the following definitions shall apply in conjunction with the
8 definitions found in sections 27-232 and 27-2004 of this code:
9 (1) The term "ENERGY STAR" shall mean a designation from the United
10 States environmental protection agency or department of energy indicat-
11 ing that a product meets the energy efficiency standards set forth by
12 the agency for compliance with the ENERGY STAR program.
13 (2) The term "household appliance" shall mean any refrigerator, room
14 air conditioner, dishwasher or clothes washer, within a dwelling unit in
15 a multiple dwelling that is provided by the owner of such multiple
16 dwelling. This definition shall also include any boiler or furnace that
17 provides heat or hot water for any dwelling unit in a multiple dwelling.
18 b. For any building for which any benefit is conferred pursuant to
19 four hundred eighty-nine of the real property tax law, whenever any
20 household appliance in any dwelling unit, or any household appliance
21 that provides heat or hot water for any dwelling unit in a multiple
22 dwelling, is installed or replaced with a new household appliance, such
23 new appliance shall be certified as Energy Star.
24 c. For any building for which any benefit is conferred pursuant to
25 section four hundred twenty-one-a of the real property tax law, whenever
26 any household appliance in any dwelling unit, or any household appliance
27 that provides heat or hot water for any dwelling unit in a multiple
28 dwelling, is installed or replaced with a new household appliance, such
29 new appliance shall be certified as Energy Star.
30 d. The commissioner may enact rules requiring additional energy
31 conservation measures for any building for which any benefit is
32 conferred pursuant to section four hundred eighty-nine of the real prop-
33 erty tax law or section four hundred twenty-one-a of the real property
34 tax law.
35 e. The commissioner shall inform applicants for any benefits affected
36 by this section of the requirements of this section.
37 f. The requirements of subdivisions b and c of this section shall not
38 apply where:
39 1) an ENERGY STAR certified household appliance of appropriate size is
40 not manufactured, such that movement of walls or fixtures would be
41 necessary to create sufficient space for such appliance; or
42 2) an ENERGY STAR certified boiler or furnace of sufficient capacity
43 is not manufactured.
44 § 11-245.9 Notice of residential property tax exemptions. a. The
45 commissioner of finance, or his or her designee, shall provide a notice
46 relating to the lien sale process to all property owners included with
47 the notice of value sent to property owners by the department of finance
48 and, in addition, no later than October thirty-first of each year, to
49 any property owner who is delinquent in the payment of any real property
50 taxes, assessments, or any other charges that are made a lien subject to
51 the provisions of chapter three of this title, except sewer rents, sewer
52 charges and water rents, if such delinquency, in the aggregate, equals
53 or exceeds the sum of one thousand dollars. This notice shall include,
54 but not be limited to, actions homeowners can take if a lien is sold on
55 such property; the type of debt that can be sold in a lien sale; a time-
56 line of statutory notifications required pursuant to section 11-320 of
S. 8578 313
1 this title; a clear, concise explanation of the consequences of the sale
2 of a tax lien; the telephone number and electronic mail address of the
3 employee or employees designated pursuant to subdivision f of section
4 11-320 of this title; a conspicuous statement that an owner of any class
5 of property may enter into a payment plan for the satisfaction of delin-
6 quent real property taxes, assessments, sewer rents, sewer surcharges,
7 water rents, and any other charges that are made a lien subject to the
8 provisions of chapter three of this title, or exclusion from the tax
9 lien sale; credits and property tax exemptions that may exclude certain
10 class one real property from a tax lien sale; and clear and concise
11 instructions on how an owner of any class of property may register to
12 receive information from the department, through electronic mail,
13 regarding outreach sessions relating to the sale of tax liens conducted
14 pursuant to subdivision j of section 11-320 of this title. Such notice
15 shall also include information on the following real property tax cred-
16 its or real property tax exemptions:
17 1. the senior citizen homeowner exemption pursuant to section 11-245.3
18 of this part;
19 2. the exemption for persons with disabilities pursuant to section
20 11-245.4 of this part;
21 3. the exemptions for veterans pursuant to sections four hundred
22 fifty-eight and four hundred fifty-eight-a of the real property tax law;
23 4. the school tax relief (STAR) exemption pursuant to section four
24 hundred twenty-five of the real property tax law;
25 5. the enhanced school tax relief (STAR) exemption pursuant to subdi-
26 vision four of section four hundred twenty-five of the real property tax
27 law;
28 6. the state circuit breaker income tax credit pursuant to subsection
29 (e) of section six hundred six of the tax law; and
30 7. any other credit or residential real property tax exemption, which,
31 in the discretion of the commissioner, should be included in such
32 notice.
33 Upon such property owner's written request, or verbal request to 311
34 or any employee designated pursuant to subdivision f of section 11-320
35 of this title, a Chinese, Korean, Russian or Spanish translation of such
36 notice shall be provided promptly to such property owner.
37 b. The notice required pursuant to this section shall include:
38 1. a brief description of each exemption program; and
39 2. a phone number at the department and a website address where
40 taxpayers can obtain additional information on the exemption programs
41 and all necessary forms and applications.
42 c. The notice that is required, pursuant to this section, to be
43 provided by the commissioner of finance or his or her designee no later
44 than October thirty-first of each year shall include contact information
45 for the office of financial empowerment at the department of consumer
46 and worker protection.
47 § 11-245.10 Alternative exemption for veterans; transfer of title. 1.
48 Pursuant to subdivision eight of section four hundred fifty-eight-a of
49 the real property tax law, where a veteran, the spouse of a veteran or
50 unremarried surviving spouse already receiving an exemption pursuant to
51 such section sells the property receiving such exemption and purchases
52 property within the city, the department of finance shall transfer and
53 prorate, for the remainder of the fiscal year, the exemption received.
54 The prorated exemption shall be based upon the date the veteran, the
55 spouse of the veteran or unremarried surviving spouse obtains title to
56 the new property and shall be calculated by multiplying the tax rate for
S. 8578 314
1 which taxes were levied, on the appropriate tax roll used for the fiscal
2 year during which the transfer occurred, multiplied by the previously
3 granted exempt amount, multiplied by the fraction of each fiscal year
4 remaining subsequent to the transfer of title.
5 2. Nothing in this section shall be construed to remove the require-
6 ment that any such veteran, the spouse of the veteran or unremarried
7 surviving spouse transferring an exemption pursuant to subdivision one
8 of this section shall reapply for the exemption authorized pursuant to
9 section four hundred fifty-eight-a of the real property tax law on or
10 before the following taxable status date, in the event such veteran, the
11 spouse of the veteran or unremarried surviving spouse wishes to receive
12 the exemption in future fiscal years.
13 PART 2
14 EXEMPTION FOR CERTAIN NONPROFIT ORGANIZATIONS
15 § 11-246 Taxation of property of nonprofit organizations, pharmaceu-
16 tical societies and dental societies. 1. a. Pursuant to the requirements
17 of sections four hundred twenty-a and four hundred forty-six of the real
18 property tax law, real property owned by a corporation or association
19 which is organized or conducted exclusively for religious, charitable,
20 hospital, educational or cemetery purposes, or for the purposes of the
21 moral or mental improvement of men, women or children or for two or more
22 such purposes shall not be taxable.
23 b. Real property owned by a corporation or association which is organ-
24 ized or conducted exclusively for Bible, tract, benevolent, missionary,
25 infirmary, public playground, scientific, literary, library, patriotic
26 or historical purposes, for the development of good sportsmanship for
27 persons under the age of eighteen years through the conduct of super-
28 vised athletic games, or for the enforcement of laws relating to chil-
29 dren or animals, or for two or more such purposes, and used exclusively
30 for carrying out thereupon one or more of such purposes either by the
31 owning corporation or association, or by another such corporation or
32 association as provided in section four hundred twenty-b of the real
33 property tax law shall not be taxable. Any corporation or association
34 which uses real property exempted from taxation pursuant to this para-
35 graph shall make available to the council, the commissioner of finance
36 and the public a report, in such form as may be prescribed by the
37 commissioner of finance, setting forth the efforts of such corporation
38 or association undertaken in the previous calendar year to provide
39 assistance to city programs and city residents, by filing such report
40 with the city clerk not later than June first of each year.
41 c. Real property owned by a corporation or association which is organ-
42 ized or conducted exclusively for bar association or medical society
43 purposes, or both such purposes, and used exclusively for carrying out
44 thereupon one or both such purposes either by the owning corporation or
45 association, or by another such corporation or association shall be
46 taxable pursuant to the authority contained in section four hundred
47 twenty-b of the real property tax law.
48 2. Real property from which no rent is derived and which is owned by
49 an incorporated pharmaceutical society which is either wholly or partly
50 within the city, which society has heretofore been or may hereafter be
51 authorized and empowered by act of the legislature to establish and
52 which has established or may hereafter establish a college of pharmacy
53 in this city shall be taxable.
S. 8578 315
1 3. Real property from which no income is derived which is owned by a
2 dental society of any judicial district which judicial district is whol-
3 ly or partly within the city, which dental society was incorporated
4 under the education law shall be taxable.
5 4. Real property previously exempt from taxation but made taxable
6 pursuant to this section as of the first of January, nineteen hundred
7 seventy-two shall be taxed for the period from the first of January to
8 and including the thirtieth of June, nineteen hundred seventy-two by
9 applying one-half of the tax rate for the fiscal year nineteen hundred
10 seventy-one, seventy-two to the assessments made and exemptions claimed
11 with reference to the taxable status date falling on the twenty-fifth of
12 January, nineteen hundred seventy-two. The taxes thus computed for the
13 period from the first of January to and including the thirtieth of June,
14 nineteen hundred seventy-two shall be due and payable on the first of
15 June, nineteen hundred seventy-two.
16 5. Real property which is taxable under this section shall be subject
17 to any special ad valorem levies and special assessments which are
18 imposed to defray the cost of improvements or services furnished by the
19 city.
20 § 11-246.1 Denial; information required. The commissioner of finance
21 shall include, in any written communication with a property owner
22 related to the denial of a real property tax exemption pursuant to
23 section four hundred twenty-a, four hundred twenty-b, four hundred
24 forty-six, or four hundred sixty-two of the real property tax law,
25 information on actions a property owner can take, upon notice of a sale
26 of a tax lien of property of such owner, that may prevent the sale of
27 such tax lien.
28 PART 3
29 TAX EXEMPTION FOR CERTAIN INDUSTRIAL AND
30 COMMERCIAL PROPERTIES
31 § 11-247 Definitions. When used in this part:
32 a. "Applicant" means any person or corporation obligated to pay real
33 property taxes on the property for which an exemption is sought, or in
34 the case of exempt property, the record owner thereof, provided, howev-
35 er, that such property is not commercial property located in an area
36 designated as excluded pursuant to section 11-249 of this part;
37 b. "Board" means the industrial and commercial incentive board;
38 c. "Commercial" means any non-residential property used primarily for
39 the buying, selling or otherwise providing of goods or services,
40 provided that the use of such property has not been designated as a
41 restricted commercial use pursuant to section 11-249 of this part;
42 d. "Construction" means the building of new industrial or commercial
43 structures on vacant or predominantly vacant land, or the modernization,
44 rehabilitation or expansion or other improvements of an existing commer-
45 cial structure where such modernization, rehabilitation, expansion or
46 other improvement is not physically or functionally integrated with the
47 existing structure or results in additional usable square footage fifty
48 per centum greater than the square footage of the existing structure;
49 e. "Industrial" means property used primarily for the manufacturing or
50 assembling of goods or the processing of raw materials;
51 f. "Predominantly vacant land" means land, including land under water,
52 on which not more than fifteen percent of the lot area contains
53 enclosed, permanent improvements; in addition, such land may include
54 existing foundations. A fence, shed, garage, attendant's booth, paving,
S. 8578 316
1 pier, bulkhead, lighting fixtures, and similar items, or any improvement
2 having an assessed value of less than two thousand dollars shall not
3 constitute an enclosed, permanent improvement;
4 g. "Reconstruction" means the modernization, rehabilitation, expansion
5 or other improvement of an existing commercial or industrial structure
6 where the total proposed project cost is in an amount equal to at least
7 twenty per centum of the assessed value of the property at the time an
8 application for a certificate of eligibility pursuant to this part is
9 made, and where such modernization, rehabilitation, expansion or other
10 improvement is physically and functionally integrated with the existing
11 structure and does not create additional usable square footage greater
12 than fifty per centum of the usable square footage of the existing
13 structure except in a case where the existing structure has been
14 substantially destroyed by fire or other casualty;
15 h. "Residential property" shall mean property, other than property
16 used for hotel purposes, on which will exist upon completion of
17 construction a building or structure containing more than one independ-
18 ent dwelling unit or where more than one-third of the total square
19 footage of said structure is to be used for residential purposes; it
20 shall also mean, in the case of reconstruction, property on which exists
21 or will exist upon completion of the reconstruction a building or struc-
22 ture where more than one-third of the total square footage is used or is
23 to be used for dwelling purposes;
24 i. "Vacant land" means land, including land under water, which
25 contains no enclosed, permanent improvement. A fence, shed, garage,
26 attendant's booth, paving, pier, bulkhead, lighting fixtures, and simi-
27 lar items, or any improvement having an assessed value of less than two
28 thousand dollars shall not constitute an enclosed, permanent improve-
29 ment.
30 § 11-248 Industrial and commercial incentive board. There shall be an
31 industrial and commercial incentive board to consist of the deputy mayor
32 who shall be chairperson of the board, the commissioner of finance, the
33 director of planning and the director of budget, each of whom shall have
34 the power to designate an alternate to represent him or her at board
35 meetings with all the rights and powers, including the right to vote,
36 reserved to all board members, provided that such designation be in
37 writing to the chairperson of the board, and three other members to be
38 appointed by the mayor. The members of the board who shall be agents,
39 officers, or employees of the city shall serve without compensation but
40 shall be reimbursed for expenses necessarily incurred in the performance
41 of their duties. The members of the board who are not agents, officers,
42 or employees of the city shall receive as compensation for their
43 services one hundred dollars per diem, provided, however, that the total
44 compensation paid to any such member shall not exceed twelve hundred
45 dollars for any calendar year. Four members of the board shall consti-
46 tute a quorum.
47 § 11-249 Functions, powers and duties of the board; annual desig-
48 nation of exemption areas and restricted commercial uses. a. The
49 members of the board shall have the following functions, powers and
50 duties:
51 1. to receive and review applications for certificates of eligibility
52 pursuant to the charter and pursuant to subdivision thirteen of section
53 11-604 and subdivision (e) of section 11-503 of this title;
54 2. to make findings and determinations on the qualifications of
55 applicants for certificates of eligibility pursuant to this part and
56 subdivision (e) of section 11-503 of this title;
S. 8578 317
1 3. to issue certificates of eligibility and amendments thereto;
2 4. to make recommendations to the tax commission on the termination of
3 a tax exemption pursuant to section 11-253 of this part;
4 5. to designate annually, pursuant to subdivision b of this section,
5 areas in which exemptions for commercial construction or reconstruction
6 shall be granted as of right, areas from which such exemptions shall be
7 excluded and commercial uses for which the granting of exemptions shall
8 be restricted; and
9 6. to make and promulgate rules and regulations to carry out the
10 purposes of the board.
11 b. (1) Not later than October first of each year the board shall
12 publish a notice at least once in the official paper or a newspaper of
13 general circulation in the city setting forth: (i) the proposed bounda-
14 ries of areas in which commercial construction or reconstruction shall
15 be granted exemptions as of right, proposed boundaries of areas from
16 which exemptions for commercial construction or reconstruction shall be
17 excluded and proposed restricted commercial uses; and (ii) the date, not
18 earlier than ten nor later than thirty days following the publication of
19 such notice, on which the board will hold a public hearing to hear all
20 persons interested in the designation of such boundaries and restricted
21 commercial uses.
22 (2) Not earlier than ten nor later than thirty days following the
23 conclusion of the public hearing provided for in paragraph one of this
24 subdivision, the board shall designate the boundaries of areas in which
25 exemptions for commercial construction or reconstruction shall be grant-
26 ed as of right and areas from which such exemptions shall be excluded
27 and shall also designate restricted commercial uses. Such designations
28 shall be made upon the following determinations:
29 (i) With respect to areas in which exemption for commercial
30 construction or reconstruction shall be granted as of right, the board
31 shall determine that market conditions in each area are such that
32 exemptions are required to attract commercial construction or recon-
33 struction to the area and that attracting such construction or recon-
34 struction, and the granting of exemptions therefor, are in the public
35 interest. In making such determination, the board may consider, among
36 other factors, that the area is experiencing economic distress or is
37 characterized by an unusually large number of vacant, underutilized,
38 unsuitable or substandard structures, or by other substandard, unsani-
39 tary, deteriorated or deteriorating conditions, with or without tangible
40 blight, or that commercial development in the area will be beneficial to
41 the city's economy.
42 (ii) With respect to areas from which exemptions for commercial
43 construction or reconstruction are to be excluded, the board shall
44 determine that market conditions in each area are such that exemptions
45 are not required to attract commercial construction or reconstruction to
46 the area, or that it is not in the public interest to grant exemptions
47 for commercial construction or reconstruction in the area. No applica-
48 tions for exemptions for commercial construction or reconstruction shall
49 be accepted from such areas.
50 (iii) With respect to restricted commercial uses, the board shall
51 determine that it is not in the public interest to grant exemptions for
52 such uses unless the board further determines that in certain areas
53 designated pursuant to this subdivision, such uses will have an espe-
54 cially positive impact on the area's economy. All applications for
55 exemptions for restricted commercial uses shall be determined pursuant
S. 8578 318
1 to paragraphs two and three of subdivision b of section 11-251 of this
2 part.
3 (3) Designations made pursuant to this subdivision shall be effective
4 on the first of January of each year.
5 c. So far as practicable and subject to the approval of the mayor, the
6 services of all other city departments and agencies shall be made avail-
7 able by their respective heads to the board for the carrying out of the
8 functions stated in this part. The head of any department or agency
9 shall furnish information in the possession of such department or agency
10 when the board, after consultation with the mayor, so requests.
11 § 11-250 Real property tax exemption. a. A real property tax
12 exemption pursuant to this part shall be granted to an applicant who,
13 within a period of thirty-six months, or following an extension pursuant
14 to section 11-254 of this part within a period of forty-eight months,
15 from the date of issuance of a certificate of eligibility has completed
16 reconstruction or construction work in accordance with the plans
17 approved by the board in the certificate of eligibility. The amount of
18 the tax exemption shall be determined as follows:
19 (1) In the case of an applicant who has completed industrial
20 construction or reconstruction work, or commercial reconstruction work
21 designated as of right pursuant to section 11-249 of this part or as
22 specially needed pursuant to section 11-251 of this part, the tax
23 exemption shall continue for nineteen tax years in an amount decreasing
24 by five per centum each year from an exemption of ninety-five per centum
25 of the exemption base, as defined in paragraph four of this subdivision.
26 (2) In the case of an applicant who has completed other commercial
27 reconstruction work, or new commercial construction work designated as
28 of right pursuant to section 11-249 of this part or as specially needed
29 pursuant to section 11-251 of this part, the tax exemption shall contin-
30 ue for ten tax years, in an amount decreasing by five per centum each
31 year from an exemption of fifty per centum of the exemption base.
32 (3) In the case of an applicant who has completed other new commercial
33 construction work, the exemption shall continue for five tax years in an
34 amount decreasing by ten per centum each year from an exemption of fifty
35 per centum of the exemption base.
36 (4) The term "exemption base" shall mean the difference between the
37 final assessed value of the property as determined upon completion of
38 the construction or reconstruction work and the lesser of (i) the
39 assessed value of the property at the time an application for certif-
40 icate of eligibility pursuant to this part is made, or (ii) the assessed
41 value as may thereafter be reduced pursuant to application to the tax
42 commission.
43 The tax exemption shall be computed according to the following tables:
44 CONSTRUCTION OR RECONSTRUCTION OF INDUSTRIAL STRUCTURES OR
45 RECONSTRUCTION OF AS OF RIGHT OR SPECIALLY NEEDED COMMERCIAL STRUCTURES
46 ========================================================================
47 Year following
48 completion Percentage
49 of work of exemption
50 ------------------------------------------------------------------------
51 1...........................................95
52 2...........................................90
53 3...........................................85
S. 8578 319
1 4...........................................80
2 5...........................................75
3 6...........................................70
4 7...........................................65
5 8...........................................60
6 9...........................................55
7 10...........................................50
8 11...........................................45
9 12...........................................40
10 13...........................................35
11 14...........................................30
12 15...........................................25
13 16...........................................20
14 17...........................................15
15 18...........................................10
16 19........................................... 5
17 ========================================================================
18 RECONSTRUCTION OF OTHER COMMERCIAL STRUCTURES OR CONSTRUCTION OF AS OF
19 RIGHT OR SPECIALLY NEEDED COMMERCIAL STRUCTURES
20 ========================================================================
21 Year following
22 completion of Percentage
23 work of exemption
24 ------------------------------------------------------------------------
25 1..........................................50
26 2..........................................45
27 3..........................................40
28 4..........................................35
29 5..........................................30
30 6..........................................25
31 7..........................................20
32 8..........................................15
33 9..........................................10
34 10.......................................... 5
35 ========================================================================
36 CONSTRUCTION OF OTHER NEW COMMERCIAL STRUCTURES
37 ========================================================================
38 Year following
39 completion of Percentage
40 work of exemption
41 ------------------------------------------------------------------------
42 1..........................................50
43 2..........................................40
44 3..........................................30
45 4..........................................20
46 5..........................................10
47 ========================================================================
48 b. The taxes payable during the period from the issuance of a certif-
49 icate of eligibility to the approval of the tax exemption pursuant to
50 section 11-252 of this part shall be paid on the lesser of:
S. 8578 320
1 (1) the assessed value of the property at the time an application for
2 a certificate of eligibility pursuant to this part is made, or
3 (2) the assessed value as may thereafter be reduced pursuant to appli-
4 cation to the tax commission, provided, however, that if reconstruction
5 or construction is not completed in accordance with the plans approved
6 in the certificate of eligibility including any amendments thereto,
7 taxes shall be due and payable retroactively as otherwise required by
8 law.
9 c. In all cases where the board shall have issued a certificate of
10 eligibility prior to January first, nineteen hundred eighty-two, the
11 exemption percentage shall apply to any subsequent increase in the
12 assessed valuation of the property during the tenure of the exemption.
13 Where the board has issued a certificate of eligibility on or after
14 January first, nineteen hundred eighty-two, the exemption percentage
15 shall apply to any subsequent increase in the assessed valuation of the
16 property during the first two years after approval of the tax exemption
17 pursuant to section 11-252 of this part. Commencing two years after
18 approval of the tax exemption pursuant to section 11-252 of this part,
19 the exemption percentage shall apply to any subsequent increase in
20 assessed valuation of the property only to the extent such increase is
21 attributable to the construction or reconstruction work approved in the
22 certificate of eligibility.
23 d. The provisions of this part shall not apply to any increase in
24 assessed value resulting from the construction or reconstruction of a
25 residential structure on any property receiving an exemption under the
26 provisions of this part. The provisions of this part shall apply exclu-
27 sively to those structures and the lands underlying them which were
28 identified explicitly in the certificate of eligibility.
29 e. The provisions of this part shall not apply if any new or rehabili-
30 tated construction displaces or replaces a building or buildings
31 containing more than twenty-five occupied dwelling units in existence on
32 the date an application for certificate of eligibility is submitted for
33 preliminary approval pursuant to section 11-251 of this part, which are
34 administered under the local emergency housing rent control act, the
35 rent stabilization law of nineteen hundred sixty-nine or the emergency
36 tenant protection act of nineteen seventy-four, or their successor stat-
37 utes applicable to the city of Staten Island, unless a certificate of
38 eviction has been issued for any of the displaced or replaced units
39 pursuant to the powers granted by the city rent and rehabilitation law.
40 f. The provisions of this part shall not apply to an applicant who
41 has commenced construction or reconstruction work prior to the granting
42 of a certificate of eligibility except where applicant, having filed an
43 application for a certificate of eligibility, receives written permis-
44 sion to commence from the board or its designated representative prior
45 to the granting of a certificate of eligibility. Demolition of existing
46 structures, site preparation limited to grading, filling or clearing, or
47 the curing of a safety or sanitary hazard shall not be deemed to be
48 commencement of construction or reconstruction work.
49 g. Any property enjoying the benefits of a tax exemption approved by
50 the board shall be ineligible for any subsequent or additional tax
51 exemption pursuant to the provisions of this part until the expiration
52 of the original exemption period or earlier termination of the existing
53 exemption by action of the tax commission.
54 § 11-251 Applications for certificates of eligibility. a. Applica-
55 tions for a certificate of eligibility pursuant to this part shall be
56 submitted for preliminary approval to the office for economic develop-
S. 8578 321
1 ment commencing immediately after March first, nineteen hundred eighty-
2 two and continuing until the thirty-first of January, nineteen hundred
3 eighty-six, on such form or forms as shall be prescribed by the board.
4 In addition to any other information required by the board, the applica-
5 tion shall include plans for reconstruction or construction that have
6 been certified by a professional engineer or an architect of the appli-
7 cant's choice and cost estimates or bids for the proposed reconstruction
8 or construction. Upon a finding by such office that the application
9 satisfies the requirements of reconstruction or construction as defined
10 in this part, the application shall be presented to the board for evalu-
11 ation and written notice thereof shall be given to the community board
12 of the district in which the application site is located.
13 b. (1) In the case of an application for construction or recon-
14 struction of an industrial structure or a commercial structure located
15 in an area designated as of right, the board shall issue a certificate
16 of eligibility upon determining that the application satisfies the
17 requirements of construction or reconstruction as defined in this part,
18 that the applicant has obtained plans for construction or reconstruction
19 certified by a professional engineer or architect, and that the appli-
20 cant has otherwise complied with the provisions of this part and other
21 applicable provisions of law.
22 (2) In the case of an application for construction or reconstruction
23 of a commercial structure not located in an as of right area, or involv-
24 ing a restricted commercial use, the board shall issue a certificate of
25 eligibility upon making the determination specified in paragraph one of
26 this subdivision and upon making the further determination that the
27 granting of a tax exemption for the construction or reconstruction of
28 such a structure in the proposed location is in the public interest. In
29 making such determination, the board shall make findings that there is a
30 need in the area for the services the enterprise will provide, that the
31 enterprise will generate or retain employment in the area, and that a
32 tax incentive is required to attract construction or reconstruction of
33 such a structure to the area. In addition, the board shall consider the
34 economic impact such commercial structure will have in the area.
35 (3) In the case of an application for construction or reconstruction
36 of a commercial structure not located in an as of right area, or involv-
37 ing a restricted commercial use, the board may make a further determi-
38 nation that special circumstances warrant designating the proposed
39 construction or reconstruction as "specially needed". In making such
40 determination, the board shall make findings that the commercial
41 services to be provided will have an especially positive impact on the
42 area's or the city's economy and that the applicant has demonstrated
43 that the project cannot go forward without the greater exemption granted
44 by such designation.
45 c. Any meeting of the board at which an application for a certificate
46 of eligibility is to be considered shall be open to the public, and
47 notice of such meeting shall be given at least two weeks prior thereto
48 by publication in a newspaper of general circulation within the city.
49 d. The burden of proof shall be on the applicant to show by clear and
50 convincing evidence that the requirements for granting a tax exemption
51 pursuant to this part have been satisfied, and the board shall have the
52 authority to require that statements made in consideration of the appli-
53 cation be taken under oath.
54 e. After the issuance of a certificate of eligibility the applicant
55 shall apply to the city tax commission, during the period provided by
56 law for filing applications for corrections of assessed valuations, for
S. 8578 322
1 a tax exemption as provided for in section 11-250 of this part. The
2 application shall be accompanied by a copy of the certificate of eligi-
3 bility.
4 § 11-252 Approval of tax exemption. On completion of the recon-
5 struction or construction work the applicant shall notify the board in
6 writing of said completion. The board shall determine the eligibility
7 of the applicant for the tax exemption as provided in section 11-250 of
8 this part and shall notify the tax commission of such determination. If
9 the applicant is determined to be qualified the commission shall approve
10 the tax exemption.
11 § 11-253 Continuation of tax exemption; termination of tax exemption.
12 The tax exemption approved by the board shall continue in accordance
13 with this part, provided that the applicant files an annual certificate
14 of continuing use stating that the structure and property continue to be
15 used for the industrial or commercial purposes justifying the issuance
16 of the certificate of eligibility. The certificate of continuing use
17 shall be filed with the tax commission on such form or forms and
18 containing such information as shall be prescribed by the tax commis-
19 sion. The tax commission shall have authority to terminate a tax
20 exemption on failure of an applicant to file an annual certificate of
21 continuing use or on the recommendation of the commissioner of finance
22 who, in reviewing the certificate filed by an applicant, has determined
23 that the structure or property has ceased to be used for the industrial
24 or commercial purposes justifying the issuance of the certificate of
25 eligibility.
26 § 11-254 Extension of time for completion. Where an applicant has
27 received a certificate of eligibility but has not completed or will not
28 be able to complete the construction or reconstruction work within thir-
29 ty-six months, the board shall, upon application, extend to forty-eight
30 months, from the time of issuance of such certificate, the time for
31 completion of the construction or reconstruction work; provided the
32 applicant has completed not less than two-thirds of the work as speci-
33 fied in the certified plans previously filed with the application at the
34 time of such application for extension.
35 § 11-255 Prior certificates of eligibility. Any project for which a
36 certificate of eligibility has been approved by the board prior to the
37 enactment of this section shall be eligible for a tax exemption computed
38 according to the tax exemption tables and formulae in effect on the date
39 of such approval.
40 PART 4
41 TAX EXEMPTION AND DEFERRAL OF TAX
42 PAYMENT FOR CERTAIN
43 INDUSTRIAL AND COMMERCIAL PROPERTIES
44 § 11-256 Definitions. When used in this part:
45 a. "Applicant" means any person obligated to pay real property taxes
46 on the property for which an exemption from or abatement or deferral of
47 real property tax payments is sought, or in the case of exempt property,
48 the record owner or lessee thereof.
49 b. "Approved plans" means plans submitted to and approved by the
50 department of buildings in connection with the applicant's building
51 permit, including any amendments to such plans approved by such depart-
52 ment before final inspection of the work for which such permit was
53 issued.
S. 8578 323
1 c. "Benefit period" means the period of time when a recipient is
2 eligible to receive benefits pursuant to this part including in the case
3 of a recipient of a certificate of eligibility for commercial
4 construction work in a deferral area, the period of time when tax
5 payments are to be deferred, the interim period when no tax payments are
6 to be deferred and no deferred tax payments are required to be made, and
7 the period of time when the deferred tax payments are to be made.
8 d. "Commission" means the temporary commercial incentive area boundary
9 commission.
10 e. "Commercial construction work" means the construction of a new
11 building or structure, or portion thereof, or the modernization, reha-
12 bilitation, expansion, or other improvement of an existing building or
13 structure, or portion thereof, for use as commercial property.
14 f. "Commercial property" means nonresidential property: (1) on which
15 will exist after completion of commercial construction work, a building
16 or structure used for the buying, selling or otherwise providing of
17 goods or services including hotel services, or for other lawful busi-
18 ness, commercial or manufacturing activities; and (2) (a) where, except
19 as provided in subparagraph (b) of this paragraph and paragraph (3) of
20 this subdivision, not more than fifteen per centum of the total net
21 square footage of any building or structure on such property was used
22 for manufacturing activities at any one or more times during the twen-
23 ty-four months immediately preceding the date of application for a
24 certificate of eligibility or (b) where not more than fifteen per centum
25 of the total net square footage of any building or structure on such
26 property was used for manufacturing activities at any one or more times
27 during the sixty months immediately preceding the date of application
28 for a certificate of eligibility if such property is located, in whole
29 or in part, in the area in the borough of Manhattan lying south of the
30 center line of 96th Street; and (3) in the commercial revitalization
31 area, and with respect to an application for a certificate of eligibil-
32 ity filed on or after July first, two thousand, "commercial property"
33 means nonresidential property on which will exist after completion of
34 commercial construction work, a building or structure used for the
35 buying, selling or otherwise providing of goods or services including
36 hotel services, or for other lawful business, commercial or manufactur-
37 ing activities.
38 f-1. "Commercial revitalization area" means any district that is zoned
39 C4, C5, C6, M1, M2 or M3 in accordance with the zoning resolution in any
40 area of the city.
41 g. "Deferral area" means an area in which deferral of payment of real
42 property taxes in accordance with section 11-257 of this part shall be
43 available to a recipient who has performed commercial construction work.
44 h. "Excluded area" means each area specified in paragraphs (1), (2)
45 and (3) of subdivision d of section 11-258 of this part.
46 i. "Exemption base". (1) For purposes of computing the exemption
47 pursuant to subdivision a, b, c or d of section 11-257 of this part,
48 "exemption base" shall mean, with respect to property that is the
49 subject of a certificate of eligibility with an effective date of June
50 thirtieth, nineteen hundred ninety-two or before: (a) for the first,
51 second and third taxable years following the effective date of a certif-
52 icate of eligibility, the assessed value of improvements made since the
53 effective date of such certificate which are attributable exclusively to
54 commercial or industrial construction work described in approved plans;
55 and (b) for all other years, the assessed value of such improvements
S. 8578 324
1 which have been made before the fourth taxable status date following the
2 effective date of such certificate.
3 (2) For purposes of computing the exemption pursuant to subdivision c,
4 d or e of section 11-257 of this part, "exemption base" shall mean, with
5 respect to property that is the subject of a certificate of eligibility
6 with an effective date of July first, nineteen hundred ninety-two or
7 after: (a) for the first through fifth taxable years following the
8 effective date of a certificate of eligibility, the assessed value of
9 improvements made since the effective date of such certificate which are
10 attributable exclusively to commercial or renovation construction work
11 described in approved plans; and (b) for all other years, the assessed
12 value of such improvements which have been made before the sixth taxable
13 status date following the effective date of such certificate.
14 (3) For purposes of computing the exemption pursuant to subdivision a
15 or b of section 11-257 of this part, "exemption base" shall mean, with
16 respect to property that is the subject of a certificate of eligibility
17 with an effective date of July first, nineteen hundred ninety-two or
18 after: (a) for the first through fifth taxable years following the
19 effective date of a certificate of eligibility, the assessed value of
20 improvements made since the effective date of such certificate which are
21 attributable exclusively to commercial or industrial construction work
22 described in approved plans plus any equalization increases or minus any
23 equalization decreases in the assessed value of the property so improved
24 (excluding the land) occurring subsequent to the effective date of such
25 certificate; and (b) for all other years, the assessed value of such
26 improvements made before the sixth taxable status date following the
27 effective date of such certificate plus any equalization increases or
28 minus any equalization decreases in the assessed value of the property
29 so improved (excluding the land) occurring subsequent to the effective
30 date of such certificate but before the fourteenth taxable status date
31 following the effective date of such certificate. For purposes of the
32 preceding sentence: no adjustment shall be made to the assessed value of
33 the improvements referred to in subparagraphs (a) and (b) of this para-
34 graph for any portion of an equalization increase or decrease which is
35 being phased in pursuant to section eighteen hundred five of the real
36 property tax law subsequent to the effective date of the certificate of
37 eligibility if such increase or decrease occurred prior to such effec-
38 tive date; with respect to any taxable year, an adjustment for an equal-
39 ization increase or decrease shall reflect only the portion of such
40 increase or decrease which is being phased in during such taxable year
41 or which was phased in during a prior taxable year; no adjustment for an
42 equalization decrease shall reduce the exemption base to an amount less
43 than the assessed value of the improvements referred to in subparagraphs
44 (a) and (b) of this paragraph, and, to the extent that any such decrease
45 would reduce the exemption base below such amount, such decrease shall
46 reduce the taxable portion of the assessed value; and no adjustment
47 shall be made for an equalization increase or decrease if the improve-
48 ments referred to in subparagraphs (a) and (b) of this paragraph do not
49 result in a physical increase in the assessed value of the property.
50 (4) Notwithstanding paragraph one of this subdivision, for purposes of
51 computing the exemption pursuant to subdivision a of section 11-257 of
52 this part, "exemption base" shall mean, with respect to industrial prop-
53 erty that is located in the area in Staten Island; and that is the
54 subject of a certificate of eligibility with an effective date after
55 December thirty-first, nineteen hundred eighty-nine and before July
56 first, nineteen hundred ninety-two: (a) for the first, second and third
S. 8578 325
1 taxable years following the effective date of a certificate of eligibil-
2 ity, the assessed value of improvements made since the effective date of
3 such certificate which are attributable exclusively to industrial
4 construction work described in approved plans; and (b) for all other
5 years, the assessed value of such improvements made before the fourth
6 taxable status date following the effective date of such certificate
7 plus any equalization increases or minus any equalization decreases in
8 the assessed value of the property so improved (excluding the land)
9 occurring subsequent to the fourth taxable status date following the
10 effective date of such certificate but before the fourteenth taxable
11 status date following the effective date of such certificate. For
12 purposes of the preceding sentence: no adjustment shall be made to the
13 assessed value of the improvements referred to in subparagraphs (a) and
14 (b) of this paragraph for any portion of an equalization increase or
15 decrease which is being phased in pursuant to section eighteen hundred
16 five of the real property tax law subsequent to the effective date of
17 the certificate of eligibility if such increase or decrease occurred
18 prior to such effective date; with respect to any taxable year, an
19 adjustment for an equalization increase or decrease shall reflect only
20 the portion of such increase or decrease which is being phased in during
21 such taxable year or which was phased in during a prior taxable year; no
22 adjustment for an equalization decrease shall reduce the exemption base
23 to an amount less than the assessed value of the improvements referred
24 to in subparagraphs (a) and (b) of this paragraph, and, to the extent
25 that any such decrease would reduce the exemption base below such
26 amount, such decrease shall reduce the taxable portion of the assessed
27 value; and no adjustment shall be made for an equalization increase or
28 decrease if the improvements referred to in subparagraphs (a) and (b) of
29 this paragraph do not result in a physical increase in the assessed
30 value of the property.
31 (5) For purposes of computing the exemption: (a) pursuant to subdivi-
32 sion e.1 of section 11-257 of this part, "exemption base" shall mean,
33 with respect to property that is the subject of a certificate of eligi-
34 bility with an effective date of July first, nineteen hundred ninety-
35 five or after and that is located in the new construction exemption area
36 specified in paragraph one of subdivision e of section 11-258 of this
37 part: for any taxable year following the effective date of a certificate
38 of eligibility, the assessed value of improvements made since the effec-
39 tive date of such certificate which are attributable exclusively to the
40 construction of a new building or structure that meets the requirements
41 set forth in subdivision i of section 11-259 of this part as described
42 in approved plans, provided such improvements are made within thirty-six
43 months of the effective date of such certificate or by December thirty-
44 first, nineteen hundred ninety-nine, whichever is earlier; and (b)
45 pursuant to subdivision e.1 of section 11-257 of this part, "exemption
46 base" shall mean, with respect to property that is the subject of a
47 certificate of eligibility with an effective date of July first, nine-
48 teen hundred ninety-five or after and that is located in the new
49 construction exemption area specified in paragraph two of subdivision e
50 of section 11-258 of this part: for any taxable year following the
51 effective date of a certificate of eligibility, the assessed value of
52 improvements made since the effective date of such certificate which are
53 attributable exclusively to the construction of a new building or struc-
54 ture that meets the requirements set forth in subdivision i of section
55 11-259 of this part as described in approved plans, provided such
S. 8578 326
1 improvements are made within forty-two months of the effective date of
2 such certificate.
3 (6) For purposes of this subdivision "equalization increase or
4 decrease" means an increase or decrease in the assessed value of proper-
5 ty which is not attributable to construction work, fire, demolition,
6 destruction or other change in the physical characteristics of the prop-
7 erty (excluding gradual physical deterioration or obsolescence), or to a
8 change in the description or boundaries of the property.
9 j. "Industrial construction work" means the construction of a new
10 building or structure or the modernization, rehabilitation, expansion or
11 improvement of an existing building or structure for use as industrial
12 property.
13 k. "Industrial property" means nonresidential property on which will
14 exist after completion of industrial construction work a building or
15 structure wherein at least seventy-five per centum of the total net
16 square footage is used or immediately available and held out for use for
17 manufacturing activities involving the assembly of goods or the fabri-
18 cation or processing of raw materials.
19 l. "Initial assessed value" means the lesser of: (1) the taxable
20 assessed value of real property appearing on the books of the annual
21 record of the assessed valuation of real property on the effective date
22 of a recipient's certificate of eligibility; or (2) the assessed value
23 to which such assessment is thereafter reduced pursuant to application
24 to the tax commission or court order. Where the real property is used
25 for both residential and nonresidential purposes on the effective date
26 of such certificate of eligibility, the initial assessed value of such
27 real property, determined as provided in the preceding sentence, shall
28 be apportioned between the residential and nonresidential portions ther-
29 eof in such manner as shall properly reflect the initial assessed value
30 of each such portion. Such apportionment shall be in accordance with
31 rules promulgated by the department of finance.
32 m. "Manufacturing activity" means an activity involving the assembly
33 of goods or the fabrication or processing of raw materials.
34 n. "Minimum required expenditure" means expenditure for commercial,
35 renovation or industrial construction work in an amount equal to twenty
36 per centum of the initial assessed value; provided, however, that with
37 respect to a recipient who filed an application on or after July first,
38 nineteen hundred ninety-five for a certificate of eligibility for indus-
39 trial construction work or for commercial construction work in a special
40 exemption area or a regular exemption area, minimum required expenditure
41 means expenditure for such work in an amount equal to ten per centum of
42 the initial assessed value; provided, however, that with respect to a
43 recipient who filed an application on or after July first, nineteen
44 hundred ninety-five for a certificate of eligibility for industrial
45 construction work and for the purpose of receiving an abatement of real
46 property taxes in accordance with paragraph (3) of subdivision a of
47 section 11-257 of this part, minimum required expenditure means expendi-
48 ture for such work in an amount equal to twenty-five per centum of the
49 initial assessed value; and provided further that if the department of
50 finance, after consultation with the deputy mayor for finance and
51 economic development, determines that a greater expenditure is required
52 to encourage significant industrial and commercial development it may
53 establish by rule a higher percentage of initial assessed value, not to
54 exceed fifty per centum thereof, as the minimum required expenditure.
55 Expenditure for residential construction work shall not be included in
56 the minimum required expenditure; provided, however, that for mixed-use
S. 8578 327
1 property, expenditures for construction work related to the common areas
2 and systems of such property shall be allocated, in accordance with
3 rules promulgated by the department of finance, between the residential
4 and nonresidential portions of the property. If real property was used
5 for both residential and nonresidential purposes on the effective date
6 of the certificate of eligibility, the initial assessed value of such
7 real property, for purposes of this subdivision, shall be the initial
8 assessed value apportioned to the nonresidential portions thereof.
9 o. "Person" means an individual, corporation, partnership, associ-
10 ation, agency, trust, estate, foreign or domestic government or subdivi-
11 sion thereof, or other entity.
12 p. "Recipient" means an applicant to whom a certificate of eligibility
13 has been issued pursuant to this part, or the successor in interest of
14 such applicant, provided that where a person who has entered into a
15 lease or purchase agreement with the owner or lessee of exempt property
16 has been a co-applicant, such person or the successor in interest of
17 such person shall be the recipient.
18 q. "Regular exemption area" means an area in which a regular exemption
19 from taxes in accordance with section 11-257 of this part shall be
20 available to a recipient who performs commercial construction work.
21 r. "Residential construction work" means any construction, moderniza-
22 tion, rehabilitation, expansion or improvement of dwelling units other
23 than dwelling units in a hotel.
24 s. "Residential property" means property, other than property used for
25 hotel purposes, on which exists, or will exist upon completion of
26 construction work, a building or structure used for residential
27 purposes.
28 t. "Restricted activity" means any entertainment activity which the
29 department of finance has identified in regulations promulgated pursuant
30 to this part as an activity which, in the public interest, should not be
31 encouraged through the benefits of this part.
32 u. "Special exemption area" means an area in which the commission has
33 determined that a special exemption from real property taxes in accord-
34 ance with subdivision b of section 11-257 of this part shall be avail-
35 able to a recipient who performs commercial construction work and, in
36 addition, means the area specified in paragraph four of subdivision c of
37 section 11-258 of this part.
38 v. "Mixed-use property" means property on which exists, or will exist
39 upon completion of construction work, a building or structure used for
40 both residential and nonresidential purposes.
41 w. "Renovation construction work" means the modernization, rehabili-
42 tation, expansion or improvement of an existing building or structure,
43 or portion thereof, for use as commercial property in a renovation
44 exemption area where such modernization, rehabilitation, expansion or
45 improvement is physically and functionally integrated with the existing
46 building or structure, or portion thereof, does not increase the bulk of
47 the existing building or structure by more than thirty per centum and
48 does not increase the height of the existing building or structure by
49 more than thirty per centum.
50 x. "Renovation exemption area" means the area specified in paragraph
51 (4) of subdivision d of section 11-258 of this part in which a reno-
52 vation exemption from taxes in accordance with subdivision e of section
53 11-257 of this part shall be available to a recipient who performs reno-
54 vation construction work.
55 y. "New construction exemption areas" means the areas specified in
56 subdivision e of section 11-258 of this part in which an exemption from
S. 8578 328
1 real property taxes in accordance with subdivision e.1 of section 11-257
2 of this part shall be available to a recipient who constructs a new
3 building or structure that meets the requirements set forth in subdivi-
4 sion i of section 11-259 of this part.
5 § 11-257 Real property tax exemption; deferral of tax payments. The
6 city shall be divided into six classes of areas as provided in this part
7 and pursuant to designation of areas to be made by the temporary commer-
8 cial incentive area boundary commission. Within such areas, the follow-
9 ing benefits shall be available to qualified recipients:
10 a. (1) A recipient who, following the effective date of a certificate
11 of eligibility, has performed industrial construction work in any area
12 of the city shall be eligible for an exemption from real property taxes
13 as follows: For the first thirteen tax years, the recipient shall be
14 exempt from taxation on one hundred per centum of the exemption base.
15 For the following nine tax years, the recipient shall be exempt from
16 taxation on a percentage of the exemption base beginning at ninety per
17 centum thereof in the fourteenth tax year and decreasing by ten per
18 centum of said exemption base each year.
19 The following table shall illustrate the computation of the exemption
20 for industrial construction work:
21 Tax year following effective
22 date of certificate
23 of eligibility: Amount of exemption:
24 1 through 13 ............. Tax on 100% of exemption base
25 14 ........................ Tax on 90% of exemption base
26 15 ........................ Tax on 80% of exemption base
27 16 ........................ Tax on 70% of exemption base
28 17 ........................ Tax on 60% of exemption base
29 18 ........................ Tax on 50% of exemption base
30 19 ........................ Tax on 40% of exemption base
31 20 ........................ Tax on 30% of exemption base
32 21 ........................ Tax on 20% of exemption base
33 22 ........................ Tax on 10% of exemption base
34 (2) Notwithstanding paragraph one of this subdivision, a recipient who
35 filed an application for a certificate of eligibility for industrial
36 construction work in any area of such city on or after July first, nine-
37 teen hundred ninety-five, and who, following the effective date of such
38 certificate of eligibility, has performed such industrial construction
39 work shall be eligible for an exemption from real property taxes as
40 follows: for the first sixteen tax years, the recipient shall be exempt
41 from taxation on one hundred per centum of the exemption base. For the
42 following nine tax years, the recipient shall be exempt from taxation on
43 a percentage of the exemption base beginning at ninety per centum there-
44 of in the seventeenth tax year and decreasing by ten per centum of said
45 exemption base each year.
46 The following table shall illustrate the computation of the exemption
47 for industrial construction work pursuant to this paragraph:
48 Tax year following effective
49 date of certificate of
50 eligibility: Amount of exemption:
51 1 through 16.............. Tax on 100% of exemption base
52 17 ........................ Tax on 90% of exemption base
53 18 ........................ Tax on 80% of exemption base
S. 8578 329
1 19 ........................ Tax on 70% of exemption base
2 20 ........................ Tax on 60% of exemption base
3 21 ........................ Tax on 50% of exemption base
4 22 ........................ Tax on 40% of exemption base
5 23 ........................ Tax on 30% of exemption base
6 24 ........................ Tax on 20% of exemption base
7 25 ........................ Tax on 10% of exemption base
8 (3)(a) A recipient who filed an application for a certificate of
9 eligibility for industrial construction work in any area of such city on
10 or after July first, nineteen hundred ninety-five, and who, following
11 the effective date of such certificate of eligibility, both commenced
12 and completed such work, shall be eligible for an abatement of real
13 property taxes as follows: for the first tax year immediately following
14 completion of such work, and for the second, third and fourth tax years
15 following completion of such work, the abatement shall equal fifty per
16 centum of the real property tax that was imposed on the property which
17 is the subject of the certificate of eligibility for the tax year imme-
18 diately preceding the effective date of such certificate of eligibility,
19 provided, however, that if such property was fully or partially exempt
20 from real property taxes during such tax year, then the abatement shall
21 equal fifty per centum of the real property tax that would have been
22 imposed on such property but for such full or partial exemption. For the
23 fifth and sixth tax years, the abatement shall equal forty per centum of
24 such amount; for the seventh and eighth tax years, the abatement shall
25 equal thirty per centum of such amount; for the ninth and tenth tax
26 years, the abatement shall equal twenty per centum of such amount; and
27 for the eleventh and twelfth tax years, the abatement shall equal ten
28 per centum of such amount. Notwithstanding any inconsistent provision of
29 this paragraph, a recipient shall not be eligible for an abatement for
30 the first tax year following completion of such work, unless the recipi-
31 ent submits proof satisfactory to the department of finance that such
32 work was completed on or before the taxable status date for such first
33 tax year no later than thirty days after such taxable status date. Where
34 the recipient fails to submit such proof in accordance with the forego-
35 ing sentence, a recipient shall not be eligible for an abatement until
36 the second tax year following completion of such work. In such case, a
37 recipient shall submit proof satisfactory to the department of finance
38 that such work was completed on or before the taxable status date for
39 such first tax year no later than thirty days after the taxable status
40 date for such second tax year. A recipient whose abatement begins in the
41 second tax year following completion of such work shall not thereby have
42 his or her twelve-year benefit period shortened.
43 The following table shall illustrate the computation of the abatement
44 for industrial construction work pursuant to this paragraph:
45 Tax year following completion
46 of industrial construction
47 work: Amount of abatement:
48 1 ...................................................50%
49 2 ...................................................50%
50 3 ...................................................50%
51 4 ...................................................50%
52 5 ...................................................40%
53 6 ...................................................40%
54 7 ...................................................30%
S. 8578 330
1 8 ...................................................30%
2 9 ...................................................20%
3 10 ..................................................20%
4 11 ..................................................10%
5 12 ..................................................10%
6 (b) If, due to a determination of the department of finance or tax
7 commission of such city or a court, the real property tax imposed on
8 such property for the tax year immediately preceding the effective date
9 of such certificate of eligibility is changed, then any abatement that
10 was granted in accordance with this paragraph prior to such reduction
11 shall be recalculated and any abatement to be granted in accordance with
12 this paragraph shall be based on the real property tax imposed on such
13 property for the tax year immediately preceding the effective date of
14 such certificate of eligibility, as changed by such determination. The
15 amount equal to the difference between the abatement originally granted
16 and the abatement as so recalculated shall be deducted from any refund
17 otherwise payable or remission otherwise due as a result of a change due
18 to such determination, and any balance of such amount remaining unpaid
19 after making any such deduction shall be paid to the department of
20 finance within thirty days from the date of mailing by the department of
21 finance of a notice of the amount payable. Such amount payable shall
22 constitute a tax lien on such property as of the date of such notice
23 and, if not paid within such thirty-day period, penalty and interest at
24 the rate applicable to delinquent taxes on such property shall be
25 charged and collected on such amount from the date of such notice to the
26 date of payment.
27 (c) No property which is the subject of a certificate of eligibility
28 pursuant to this part shall receive more than one abatement pursuant to
29 this part and no abatement shall exceed one consecutive twelve-year
30 period as specified in subparagraph (a) of this paragraph.
31 (d) In no event shall an abatement granted pursuant to this part
32 exceed in any tax year the real property taxes imposed on the property
33 which is the subject of a certificate of eligibility pursuant to this
34 part.
35 (e) For the purpose of calculating an abatement of real property taxes
36 pursuant to this part, where a tax lot contains more than one building
37 or structure and not all of the buildings or structures comprising such
38 tax lot are the subject of a certificate of eligibility for industrial
39 construction work pursuant to this part, the real property taxes imposed
40 on such tax lot for the year immediately preceding the effective date of
41 such certificate of eligibility shall be apportioned among the build-
42 ings, structures and land comprising such tax lot and only such real
43 property taxes as are allocable to the property which is the subject of
44 the certificate of eligibility pursuant to this part shall be abated in
45 accordance with this paragraph. Such apportionment shall be in accord-
46 ance with rules promulgated by the department of finance.
47 (f) A recipient who filed an application for a certificate of eligi-
48 bility for industrial construction work in the commercial revitalization
49 area on or after July first, two thousand, and who, following the effec-
50 tive date of such certificate of eligibility, both commenced and
51 completed such work, shall be eligible for an abatement of real property
52 taxes in accordance with subparagraph (a) of this paragraph, provided,
53 however, that where the total net square footage of the industrial prop-
54 erty used or immediately available and held out for use for manufactur-
55 ing activities involving the assembly of goods or the fabrication or
S. 8578 331
1 processing of raw materials is less than seventy-five per centum of the
2 total net square footage of the industrial property, the abatement of
3 real property taxes shall be determined in accordance with rules promul-
4 gated by the department of finance. Notwithstanding the foregoing
5 sentence, no such abatement shall be allowed where the total net square
6 footage of the industrial property used or immediately available and
7 held out for use for such manufacturing activities after completion of
8 industrial construction work is less than the total net square footage
9 used or immediately available and held out for use for such manufactur-
10 ing activities before the commencement of such construction work. For
11 purposes of this subparagraph only, the term "industrial construction
12 work" shall mean the modernization, rehabilitation, expansion or
13 improvement of an existing building or structure for use as industrial
14 property and the term "industrial property" shall mean nonresidential
15 property on which will exist after completion of industrial construction
16 work a building or structure wherein at least twenty-five per centum of
17 the total net square footage is used or immediately available and held
18 out for use for manufacturing activities involving the assembly of goods
19 or the fabrication or processing of raw materials.
20 b. (1) A recipient who, following the effective date of a certificate
21 of eligibility, has performed commercial construction work in a special
22 exemption area shall be eligible for an exemption from real property
23 taxes as follows: For the first thirteen tax years, the recipient shall
24 be exempt from taxation on one hundred per centum of the exemption base.
25 For the following nine tax years, the recipient shall be exempt from
26 taxation on a percentage of the exemption base beginning at ninety per
27 centum thereof in the fourteenth tax year and decreasing by ten per
28 centum of said exemption base each year.
29 The following table shall illustrate the computation of the exemption
30 for commercial construction work in a special exemption area:
31 Tax year following effective
32 date of certificate
33 of eligibility: Amount of exemption:
34 1 through 13 ............. Tax on 100% of exemption base
35 14 ........................ Tax on 90% of exemption base
36 15 ........................ Tax on 80% of exemption base
37 16 ........................ Tax on 70% of exemption base
38 17 ........................ Tax on 60% of exemption base
39 18 ........................ Tax on 50% of exemption base
40 19 ........................ Tax on 40% of exemption base
41 20 ........................ Tax on 30% of exemption base
42 21 ........................ Tax on 20% of exemption base
43 22 ........................ Tax on 10% of exemption base
44 (2) Notwithstanding paragraph one of this subdivision, a recipient who
45 filed an application for a certificate of eligibility for commercial
46 construction work in a special exemption area on or after July first,
47 nineteen hundred ninety-five, and who, following the effective date of
48 such certificate of eligibility, has performed such commercial
49 construction work shall be eligible for an exemption from real property
50 taxes as follows: For the first sixteen tax years, the recipient shall
51 be exempt from taxation on one hundred per centum of the exemption base.
52 For the following nine tax years, the recipient shall be exempt from
53 taxation on a percentage of the exemption base beginning at ninety per
S. 8578 332
1 centum thereof in the seventeenth tax year and decreasing by ten per
2 centum of said exemption base each year.
3 The following table shall illustrate the computation of the exemption
4 for commercial construction work in a special exemption area pursuant to
5 this paragraph:
6 Tax year following effective
7 date of certificate
8 of eligibility: Amount of exemption:
9 1 through 16 ............. Tax on 100% of exemption base
10 17 ........................ Tax on 90% of exemption base
11 18 ........................ Tax on 80% of exemption base
12 19 ........................ Tax on 70% of exemption base
13 20 ........................ Tax on 60% of exemption base
14 21 ........................ Tax on 50% of exemption base
15 22 ........................ Tax on 40% of exemption base
16 23 ........................ Tax on 30% of exemption base
17 24 ........................ Tax on 20% on exemption base
18 25 ........................ Tax on 10% of exemption base
19 c. (1) A recipient who, following the effective date of a certificate
20 of eligibility, has performed commercial construction work in a regular
21 exemption area shall be eligible for an exemption from real property
22 taxes as follows: For the first eight tax years, the recipient shall be
23 exempt from taxation on one hundred per centum of the exemption base.
24 For the following four tax years, the recipient shall be exempt from
25 taxation on a percentage of the exemption base beginning at eighty per
26 centum thereof in the ninth tax year and decreasing by twenty per centum
27 of said exemption base each year.
28 The following table shall illustrate the computation of the exemption
29 for commercial construction work in a regular exemption area:
30 Tax year following effective
31 date of certificate
32 of eligibility: Amount of exemption:
33 1 through 8 .............. Tax on 100% of exemption base
34 9 ......................... Tax on 80% of exemption base
35 10 ........................ Tax on 60% of exemption base
36 11 ........................ Tax on 40% of exemption base
37 12 ........................ Tax on 20% of exemption base
38 (2) Notwithstanding paragraph one of this subdivision, a recipient who
39 filed an application for a certificate of eligibility for commercial
40 construction work in a regular exemption area on or after July first,
41 nineteen hundred ninety-five, and who, following the effective date of
42 such certificate of eligibility, has performed such commercial
43 construction work shall be eligible for an exemption from real property
44 taxes as follows: For the first eleven tax years, the recipient shall be
45 exempt from taxation on one hundred per centum of the exemption base.
46 For the following four tax years, the recipient shall be exempt from
47 taxation on a percentage of the exemption base beginning at eighty per
48 centum thereof in the twelfth tax year and decreasing by twenty per
49 centum of said exemption base each year.
50 The following table shall illustrate the computation of the exemption
51 for commercial construction work in a regular exemption area pursuant to
52 this paragraph:
S. 8578 333
1 Tax year following effective
2 date of certificate
3 of eligibility: Amount of exemption:
4 1 through 11 ............. Tax on 100% of exemption base
5 12 ........................ Tax on 80% of exemption base
6 13 ........................ Tax on 60% of exemption base
7 14 ........................ Tax on 40% of exemption base
8 15 ........................ Tax on 20% of exemption base
9 d. Except as provided in paragraphs two and three of subdivision d of
10 section 11-258 of this part, a recipient who, following the effective
11 date of a certificate of eligibility, has performed commercial
12 construction work in a deferral area shall be eligible for a deferral of
13 tax payments as follows: For the first three tax years following the
14 effective date of a certificate of eligibility, the tax payment on one
15 hundred per centum of the exemption base shall be deferred. For the
16 following four tax years, the tax payment on a percentage of the
17 exemption base beginning at eighty per centum thereof in the fourth tax
18 year and decreasing by twenty per centum each year shall be deferred.
19 The total amount of tax payments deferred pursuant to this part shall be
20 paid subsequently over the course of ten tax years as follows: Commenc-
21 ing in the eleventh tax year following the effective date of the certif-
22 icate of eligibility, through and including the twentieth tax year
23 following such effective date, an amount equal to ten per centum of the
24 total amount of tax payments deferred pursuant to this section shall be
25 added to the amount of tax otherwise assessed and payable in each such
26 tax year on the property subject to such deferral.
27 The following table shall illustrate the computation of deferral and
28 payment of taxes for commercial construction work in a deferral area:
29 Tax year following
30 effective date of
31 certificate of
32 eligibility: Amount of tax payments to be deferred or paid:
33 1 through 3 ......Deferral of tax payment on 100% of the exemption base
34 4 ................ Deferral of tax payment on 80% of the exemption base
35 5 ................ Deferral of tax payment on 60% of the exemption base
36 6 ................ Deferral of tax payment on 40% of the exemption base
37 7 ................ Deferral of tax payment on 20% of the exemption base
38 8 through 10 ..... No tax payments are to be deferred and no deferred
39 tax payments are required to be made
40 11 through 20 .... Payment each year of 10% of total dollar amount of
41 tax payments deferred pursuant to this part
42 e. A recipient who, following the effective date of a certificate of
43 eligibility, has performed renovation construction work in a renovation
44 exemption area shall be eligible for an exemption from real property
45 taxes as follows: For the first eight tax years, the recipient shall be
46 exempt from taxation on one hundred per centum of the exemption base.
47 For the following four tax years, the recipient shall be exempt from
48 taxation on a percentage of the exemption base beginning at eighty per
49 centum thereof in the ninth tax year and decreasing by twenty per centum
50 of said exemption base each year.
51 The following table shall illustrate the computation of the exemption
52 for renovation construction work in a renovation exemption area:
S. 8578 334
1 Tax year following effective
2 date of certificate
3 of eligibility: Amount of exemption:
4 1 through 8 .............. Tax on 100% of exemption base
5 9 ......................... Tax on 80% of exemption base
6 10 ........................ Tax on 60% of exemption base
7 11 ........................ Tax on 40% of exemption base
8 12 ........................ Tax on 20% of exemption base
9 e.1. A recipient who, following the effective date of a certificate of
10 eligibility, constructs a new building or structure that meets the
11 requirements set forth in subdivision i of section 11-259 of this part
12 in the new construction exemption area specified in paragraph one, two
13 or three of subdivision e of section 11-258 of this part shall be eligi-
14 ble for an exemption from real property taxes as follows: for the first
15 four tax years, the recipient shall be exempt from taxation on one
16 hundred per centum of the exemption base. For the following four tax
17 years, the recipient shall be exempt from taxation on a percentage of
18 the exemption base beginning at eighty per centum thereof in the fifth
19 tax year and decreasing by twenty per centum of said exemption base each
20 year.
21 The following table shall illustrate the computation of the exemption
22 for the construction of a new building or structure that meets the
23 requirements set forth in subdivision i of section 11-259 of this part
24 in the new construction exemption area specified in paragraph one, two
25 or three of subdivision e of section 11-258 of this part:
26 Tax year following effective
27 date of certificate
28 of eligibility: Amount of exemption:
29 1 through 4 .............. Tax on 100% of exemption base
30 5 ......................... Tax on 80% of exemption base
31 6 ......................... Tax on 60% of exemption base
32 7 ......................... Tax on 40% of exemption base
33 8 ......................... Tax on 20% of exemption base
34 f. There shall be no exemption from or deferral of payment of real
35 property taxes available pursuant to this part to any person who
36 performs commercial or renovation construction work in an excluded area.
37 g. The benefits of this part shall be granted exclusively for indus-
38 trial, commercial or renovation construction work described in approved
39 plans. No benefits shall be granted for residential construction work.
40 Any parcel which is partly located in an excluded area shall be deemed
41 to be entirely located in such area.
42 h. No benefits pursuant to this part shall be granted for work which
43 is the subject of a certificate of eligibility issued pursuant to part
44 three of this subchapter.
45 § 11-258 Temporary commercial incentive area boundary commission;
46 classes of area; excluded areas. a. There shall be a temporary commer-
47 cial incentive area boundary commission to consist of the deputy mayor
48 for economic development and planning, the commissioner of finance, the
49 chair of the city planning commission, the director of management and
50 budget, the borough presidents, the speaker of the city council and a
51 public member appointed by the mayor to serve at the mayor's pleasure.
52 Each member except the public member shall have the power to designate
53 an alternate to represent him or her at commission meetings to exercise
S. 8578 335
1 all the rights and powers of such member, including the right to vote,
2 provided that such designation be made in writing to the chair of the
3 commission. The deputy mayor for economic development and planning shall
4 be the chair of the commission. Each borough president shall be entitled
5 to vote only on the designation of areas within his or her borough.
6 Commission members who shall be officers or employees of the city shall
7 serve without compensation but shall be reimbursed for expenses neces-
8 sarily incurred in the performance of their duties. Any other commission
9 member shall receive as exclusive compensation for his or her services
10 one hundred dollars per diem, provided, however, that the total compen-
11 sation paid to any such member shall not exceed twelve hundred dollars
12 for any calendar year. A majority of members of such commission entitled
13 to vote on a matter shall constitute a quorum for such issue. Decisions
14 shall be made by majority vote of those present entitled to vote on a
15 matter.
16 b. (1) The commission shall meet in nineteen hundred ninety-two, nine-
17 teen hundred ninety-five and nineteen hundred ninety-nine to determine
18 the boundaries of the various areas which it is authorized to designate
19 pursuant to this section. The areas designated by the commission in
20 effect as of December thirty-first, nineteen hundred ninety-one shall
21 remain in effect until the first taxable status date after the city
22 council approves a new designation pursuant to paragraph four of this
23 subdivision.
24 (2) Not later than October first of each year when areas are to be
25 designated, the commission shall publish notice of proposed boundaries
26 of areas to be designated, and the date, not earlier than five nor later
27 than fifteen days following the publication of such notice, on which the
28 commission will hold a public hearing to hear all persons interested in
29 the designation of areas. The notice required by this paragraph shall be
30 published in the City Record and a newspaper of general circulation in
31 the city, and copies thereof shall be forwarded to each council member
32 and community board.
33 (3) The commission shall make such designation, and notify the city
34 council of such designation, not later than November first of each year
35 when areas are to be designated. The designation shall be effective as
36 provided in paragraph four of this subdivision.
37 (4) Within thirty days after the first stated meeting of the city
38 council following the receipt of notice of such designation, the city
39 council may, by majority vote, disapprove such designation. If, within
40 such thirty-day period, the city council fails to act or fails to act by
41 the required vote, the city council shall be deemed to have approved
42 such designation. Such designation shall be effective as of the first
43 taxable status date after the city council approves such designation and
44 shall remain in effect until the first taxable status date after the
45 city council approves a new designation pursuant to this paragraph.
46 c. (1) The commission may designate any area other than the area lying
47 south of the center line of ninety-sixth street in the borough of
48 Manhattan to be a special exemption area if it determines that market
49 conditions in the area are such that the availability of a special
50 exemption is required in order to encourage commercial construction work
51 in such area. In making such determination, the commission shall consid-
52 er, among other factors, the existence in such area of a special need
53 for commercial and job development, high unemployment, economic distress
54 or unusually large numbers of vacant, underutilized, unsuitable or
55 substandard structures, or other substandard, unsanitary, deteriorated
56 or deteriorating conditions, with or without tangible blight.
S. 8578 336
1 (2) Any area in the city, which the commission has not designated as a
2 special exemption area shall be a regular exemption area.
3 (3) On or after January first, nineteen hundred ninety-two, the
4 commission shall not designate any area to be either a deferral area or
5 an excluded area, nor shall the commission make any new designation in
6 any urban renewal area designated pursuant to article fifteen of the
7 general municipal law so as to reduce the level of benefits available
8 pursuant to this title in such area.
9 (4) Notwithstanding any other provision of this part, any area in the
10 city designated as an empire zone in accordance with article eighteen-b
11 of the general municipal law, which the commission has not designated as
12 a special exemption area, shall be a special exemption area as of July
13 first, nineteen hundred ninety-five or as of the date of the designation
14 of such area as an empire zone, whichever is later.
15 § 11-259 Eligibility for benefits. a. A recipient of a certificate of
16 eligibility with an effective date of June thirtieth, nineteen hundred
17 ninety-two or before must make one-half the minimum required expenditure
18 within eighteen months of the effective date of such recipient's certif-
19 icate of eligibility, and make the minimum required expenditure within
20 thirty-six months of the effective date of such certificate to be eligi-
21 ble to receive the benefits of this part. A recipient of a certificate
22 of eligibility with an effective date of July first, nineteen hundred
23 ninety-two or after must make one-half the minimum required expenditure
24 within thirty months of the effective date of such recipient's certif-
25 icate of eligibility, and make the minimum required expenditure within
26 sixty months of the effective date of such certificate to be eligible to
27 receive the benefits of this part. Any recipient who shall fail to make
28 such expenditures shall become ineligible and shall pay, with interest,
29 any taxes for which an exemption or deferral was claimed pursuant to
30 this section. This subdivision shall not apply to the recipient of a
31 certificate of eligibility for construction of a new building or struc-
32 ture that meets the requirements set forth in subdivision i of section
33 11-259 of this part in a new construction exemption area.
34 b. No benefits pursuant to this part shall be granted for construction
35 work on any condominium unit unless such unit is in a building or struc-
36 ture which, if viewed as a whole and as if it were under single owner-
37 ship, would qualify as commercial or industrial property. The minimum
38 required expenditure applicable to any recipient of a certificate of
39 eligibility for construction work on a condominium unit shall be equal
40 to the minimum expenditure which would apply if a certificate of eligi-
41 bility were issued for construction work on the entire property where
42 such unit is located. Nothing in this subdivision shall be construed to
43 prevent owners of condominium units in the same property from forming an
44 association to be a recipient. This subdivision shall not apply to any
45 applicant whose property would be, or recipient whose property is, the
46 subject of a certificate of eligibility with an effective date of July
47 first, nineteen hundred ninety-two or after.
48 c. No benefits pursuant to this part shall be granted for any
49 construction work unless the applicant filed an application for such
50 benefits on or before the date of issuance of a building permit for such
51 work. The requirements of this subdivision may be satisfied where the
52 applicant's architect, contractor or other representative authorized to
53 file the application for such building permit files with the department
54 of finance on behalf of the applicant a preliminary application contain-
55 ing such information as the department of finance shall prescribe by
56 regulation.
S. 8578 337
1 d. No benefits pursuant to this part shall be granted to any recipient
2 for construction work on property any part of which is to be used for a
3 restricted activity.
4 e. No benefits pursuant to this part shall be granted for any
5 construction work unless the applicant shall file, together with the
6 application, an affidavit setting forth the following information:
7 (1) a statement that within the seven years immediately preceding the
8 date of application for a certificate of eligibility, neither the appli-
9 cant, nor any person owning a substantial interest in the property as
10 defined in paragraph four of this subdivision, nor any officer, director
11 or general partner of the applicant or such person was finally adjudi-
12 cated by a court of competent jurisdiction to have violated section two
13 hundred thirty-five of the real property law or any section of article
14 one hundred fifty of the penal law or any similar arson law of another
15 state with respect to any building, or was an officer, director or
16 general partner of a person at the time such person was finally adjudi-
17 cated to have violated such law;
18 (2) a statement setting forth any pending charges alleging violation
19 of section two hundred thirty-five of the real property law or any
20 section of article one hundred fifty of the penal law or any similar
21 arson law of another jurisdiction with respect to any building by the
22 applicant or any person owning a substantial interest in the property as
23 defined in paragraph four of this subdivision, or any officer, director
24 or general partner of the applicant or such person; and
25 (3) a statement that the applicant has posted notice in a conspicuous
26 place at the premises which are the subject of the application and
27 published notice in a newspaper of general circulation in the city, in
28 such form as shall be prescribed by the department of finance, stating
29 that persons having information concerning any violation by the appli-
30 cant or a person having a substantial interest in the property as
31 defined in paragraph four of this subdivision has violated section two
32 hundred thirty-five of the real property law or any section of article
33 one hundred fifty of the penal law or any similar arson law of another
34 jurisdiction may submit such information to the department of finance to
35 be considered in determining the applicant's eligibility for benefits.
36 (4) "Substantial interest" as used in this subdivision shall mean
37 ownership and control of an interest of ten per centum or more in a
38 property or of any person owning a property.
39 f. If any person described in the statement required by paragraph two
40 of subdivision e of this section is finally adjudicated by a court of
41 competent jurisdiction to be guilty of any charge listed in such state-
42 ment, the recipient shall cease to be eligible for benefits pursuant to
43 this part and shall pay with interest any taxes for which an exemption,
44 abatement or deferral was claimed pursuant to this part.
45 g. In addition to any other qualifications for exemption from or
46 abatement or deferral of payment of taxes set forth in this part, an
47 applicant must be:
48 (1) obligated to pay real property tax on the property for which an
49 exemption, abatement or deferral is sought, whether such obligation
50 arises because of record ownership of such property, or because the
51 obligation to pay such tax has been assumed by contract; or
52 (2) the record owner or lessee of property which is exempt from real
53 property taxation who has entered into an agreement to sell or lease
54 such property to another person. Such person shall be a co-applicant
55 with such owner or lessee.
S. 8578 338
1 h. A co-applicant with a public entity shall be an eligible recipient
2 pursuant to this part, provided that for such period as the property
3 which is the subject of the certificate of eligibility is exempt from
4 real property taxation because it is owned or controlled by a public
5 entity no benefits shall be available to such recipient pursuant to this
6 part. Such recipient shall receive benefits pursuant to this part when
7 such property ceases to be eligible for exemption pursuant to other
8 provisions of law, as follows: the recipient shall, commencing with the
9 date such tax exemption ceases, and continuing until the expiration of
10 the benefit period pursuant to this part, receive the benefits to which
11 such recipient is entitled in the corresponding tax year pursuant to
12 this part.
13 i. (1) No benefits pursuant to this part shall be granted for
14 construction of a new building or structure in a new construction
15 exemption area unless such building or structure meets the requirements
16 set forth in subparagraphs two and three of this paragraph and, in addi-
17 tion, meets at least two of the five requirements set forth in subpara-
18 graphs four through eight of this paragraph.
19 (2) The height of at least fifty per centum of the floors in such
20 building or structure shall be not less than twelve feet, nine inches
21 measured from the top of the slab comprising the floor to the bottom of
22 the slab comprising the ceiling;
23 (3) Such building or structure shall be served by fiber optic telecom-
24 munications wiring and shall contain vertical penetrations for the
25 distribution of fiber optic cabling to individual tenants on each floor;
26 (4) The total square footage of such building or structure is not less
27 than five hundred thousand gross square feet;
28 (5) A minimum of two hundred thousand gross square feet or twenty-five
29 per centum of such building or structure is comprised of floors of not
30 less than forty thousand gross square feet;
31 (6) At least ten per centum of the gross square footage of such build-
32 ing or structure is comprised of floors that contain no more than eight
33 structural columns, excluding any columns within the core or on the
34 periphery of such building or structure;
35 (7) The electrical capacity of such building or structure is not less
36 than six watts per net square foot;
37 (8) Emergency backup power sufficient to accommodate a need of six
38 watts per net square foot is available in at least two hundred thousand
39 gross square feet or twenty-five per centum of such building or struc-
40 ture.
41 j. No benefits pursuant to this part shall be granted for construction
42 work performed pursuant to a building permit issued after July thirty-
43 first, two thousand eight, except that if a building permit is issued on
44 or before July thirty-first, two thousand eight for construction work on
45 a building or structure described in an application for a certificate of
46 eligibility filed on or before June thirtieth, two thousand eight,
47 construction work performed as described in such application pursuant to
48 any additional building permit issued on or after August first, two
49 thousand eight shall be eligible for benefits pursuant to this part in
50 accordance with this subdivision.
51 (1) Except as provided in paragraph two of this subdivision, all
52 construction work performed pursuant to any such application shall be
53 completed on or before December thirty-first, two thousand thirteen. No
54 benefits shall be granted for construction work performed after such
55 date, and any exemption granted pursuant to this part in relation to
56 property on which such construction work was performed shall not exceed
S. 8578 339
1 the amount of the exemption in effect for such property on the tax roll
2 for which the taxable status date is January fifth, two thousand four-
3 teen.
4 (2) All construction work performed pursuant to any such application
5 for the construction of a new building or structure in the new
6 construction exemption area specified in paragraph three of subdivision
7 e of section 11-258 of this part shall be completed in accordance with
8 paragraph four of subdivision i of this section and, if not completed in
9 accordance with such subparagraph, shall not be eligible for benefits
10 pursuant to this part.
11 (3) For purposes of this subdivision, construction work as described
12 in an application for a certificate of eligibility shall be deemed
13 completed on the date on which the department of buildings issues a
14 temporary or final certificate of occupancy or, if such construction
15 work does not require the issuance of a certificate of occupancy, the
16 date on which the applicant and the applicant's architect or profes-
17 sional engineer for such construction work submit to the department of
18 finance an affidavit certifying that such construction work has been
19 completed. For purposes of this subdivision, a demolition permit shall
20 be deemed to be a building permit issued for construction work.
21 § 11-260 Application for certificate of eligibility. a. Application
22 for a certificate of eligibility pursuant to this part may be made imme-
23 diately and continuing until June thirtieth, two thousand eight; and
24 provided, further, however, that no benefits pursuant to this part shall
25 be granted for construction work performed pursuant to a building permit
26 issued after July thirty-first, two thousand eight. Such application
27 shall state whether it is for industrial, commercial or renovation
28 construction work, and shall be filed with the department of finance. In
29 addition to any other information required by such department, the
30 application shall include cost estimates or bids for the proposed
31 construction and an affidavit of a professional engineer or architect of
32 the applicant's choice, certifying that detailed plans for the
33 construction work have been submitted to the department of buildings.
34 Such application shall also state that the applicant agrees to comply
35 with and be subject to the rules issued from time to time by the depart-
36 ment of finance to secure compliance with all applicable city, state and
37 federal laws or which implement mayoral directives and executive orders
38 designed to ensure equal employment opportunity. Such application shall
39 also certify that all taxes currently due and owing on the property
40 which is the subject of the application have been paid or are currently
41 being paid in timely installments pursuant to written agreement with the
42 department of finance.
43 b. The burden of proof shall be on the applicant to show by clear and
44 convincing evidence that the requirements for granting an exemption from
45 or abatement or deferral of payment of taxes pursuant to this part have
46 been satisfied. The department of finance shall have the authority to
47 require that statements in connection with the application be made under
48 oath.
49 c. Upon receipt of an application, the department of finance shall
50 send written notice thereof to the council member representing the
51 district where the proposed construction work is to take place.
52 d. The department of finance shall issue a certificate of eligibility
53 upon determining that the applicant satisfies the requirements for
54 industrial, commercial or renovation construction work in an area where
55 benefits are available for such work. Such certificate shall state
56 whether such benefits are to be granted for industrial, commercial or
S. 8578 340
1 renovation construction work, and in which class of area the property is
2 located. The effective date of such certificate, except as provided in
3 paragraph two or paragraph four of subdivision c of section 11-259 of
4 this part, shall be the earlier of (1) the date on which a building
5 permit for the construction work is issued by the department of build-
6 ings, or (2) the last day before the effective date of any designation
7 of boundaries by the commission which changes the class of area in which
8 the property is located so as to reduce the level of benefits for
9 commercial construction work on such property. Where the effective date
10 of the certificate of eligibility is July first, nineteen hundred nine-
11 ty-two or after, the benefits granted for industrial, commercial or
12 renovation construction work pursuant to this part shall be in accord-
13 ance with the provisions of this part. Where the effective date of the
14 certificate of eligibility is June thirtieth, nineteen hundred ninety-
15 two or before, the benefits granted for industrial or commercial
16 construction work pursuant to this part shall be in accordance with the
17 provisions of this part as it was in effect until June thirtieth, nine-
18 teen hundred ninety-two. No recipient whose property is the subject of
19 a certificate of eligibility for commercial construction work in a
20 deferral area shall be eligible to apply for a certificate of eligibil-
21 ity for renovation construction work on the same property, where the
22 renovation construction work is the same as, or similar to, the commer-
23 cial construction work for which the deferral area certificate was
24 issued, until three years after the effective date of the deferral area
25 certificate. No recipient shall receive a tax deferral and a tax
26 exemption for the same expenditure on eligible construction work.
27 e. A copy of the certificate of eligibility shall be filed by the
28 department of finance in the manner prescribed for recording a mortgage
29 pursuant to section two hundred ninety-one-d of the real property law.
30 f. The department of finance may provide by rule for reasonable admin-
31 istrative charges or fees necessary to defray expenses in administering
32 the benefit program provided by this part.
33 § 11-261 Reporting requirement; termination of benefits. a. Upon
34 approval by the department of buildings of the plans submitted in
35 connection with the building permit and any amendments to such plans,
36 the recipient shall file with the department of finance a narrative
37 description of such approved plans describing the industrial, commercial
38 or renovation construction work for which such recipient seeks benefits
39 pursuant to this part.
40 b. For the duration of the benefit period the recipient shall file
41 annually with the department of finance, on or before the taxable status
42 date, a certificate of continuing use stating the purposes for which the
43 property described in the certificate of eligibility is being used and
44 the net square footage allotted to each such purpose. Such certificate
45 of continuing use shall be on a form prescribed by the department of
46 finance and shall state the total number of workers employed on the
47 property and the number of such workers who are city residents. The
48 department of finance shall have authority to terminate benefits pursu-
49 ant to this part upon failure of a recipient to file such certificate by
50 the taxable status date. The burden of proof shall be on the recipient
51 to establish continuing eligibility for benefits and the department of
52 finance shall have the authority to require that statements made in such
53 certificate shall be made under oath.
54 c. A recipient shall file an amendment to the latest certificate of
55 continuing use prior to (1) converting square footage within property
56 which is the subject of a certificate of eligibility for industrial
S. 8578 341
1 construction work from use for the manufacturing activities described in
2 such certificate of continuing use where such conversion results in less
3 than sixty-five per centum of total net square footage being used or
4 held out for use for manufacturing activities; or (2) converting any
5 portion of property which is the subject of a certificate of eligibility
6 to use for any restricted activity or as residential property.
7 d. No later than eighteen months after the effective date of a certif-
8 icate of eligibility with an effective date of June thirtieth, nineteen
9 hundred ninety-two or before, the recipient shall present evidence to
10 the department of finance demonstrating that the recipient has made
11 one-half of the minimum required expenditure. Not later than thirty-six
12 months after the effective date of such certificate, such recipient
13 shall present evidence to such department demonstrating that the recipi-
14 ent has made the minimum required expenditure. Not later than thirty
15 months after the effective date of a certificate of eligibility with an
16 effective date of July first, nineteen hundred ninety-two or after, the
17 recipient shall present evidence to the department of finance demon-
18 strating that the recipient has made one-half of the minimum required
19 expenditure. Such evidence shall be presented in the form and manner
20 prescribed by such department. The burden of proof shall be on the
21 recipient to show by clear and convincing evidence that the required
22 expenditures have been made. This subdivision shall not apply to the
23 recipient of a certificate of eligibility for construction of a new
24 building or structure that meets the requirements set forth in subdivi-
25 sion i of section 11-259 of this part in a new construction exemption
26 area.
27 e. A recipient of a certificate of eligibility for construction of a
28 new building or structure in a new construction exemption area shall
29 present evidence to the department of finance demonstrating that the
30 requirements of subdivision i of section 11-259 of this part have been
31 met. Such evidence shall be presented in the form and manner and at the
32 time prescribed by such department. The burden of proof shall be on the
33 recipient to show by clear and convincing evidence that such require-
34 ments have been met.
35 § 11-262 Conversion of property. a. Any recipient whose property is
36 the subject of a certificate of eligibility for commercial or renovation
37 construction work, and who, prior to the expiration of the benefit peri-
38 od, uses such property as industrial property, shall continue to receive
39 benefits for commercial or renovation construction work as the case may
40 be.
41 b. Any recipient whose property is the subject of a certificate of
42 eligibility for industrial construction work, and who, prior to the
43 expiration of the benefit period, uses such property as commercial prop-
44 erty, shall cease to be eligible for further exemption or abatement for
45 industrial construction work as of the last date to which such recipient
46 proves by clear and convincing evidence that such property was used as
47 industrial property, and shall pay with interest any taxes for which an
48 exemption or abatement was claimed after such date, except that:
49 (1) a recipient of a certificate of eligibility for industrial
50 construction work in a special exemption area who would have been eligi-
51 ble to receive a certificate of eligibility for commercial construction
52 work at the time such recipient applied for benefits shall continue to
53 receive an exemption for industrial construction; and
54 (2) a recipient of a certificate of eligibility for industrial
55 construction work in a regular exemption area who would have been eligi-
56 ble to receive a certificate of eligibility for commercial construction
S. 8578 342
1 work at the time such recipient applied for benefits shall, commencing
2 with the date of conversion to commercial property and continuing until
3 the expiration of the benefit period for commercial construction work,
4 receive any exemption which such recipient would have received in the
5 corresponding tax year pursuant to a certificate of eligibility for
6 commercial construction work; and
7 (3) a recipient of a certificate of eligibility for industrial
8 construction work in any area of the city on whose property at least
9 sixty-five per centum of the net square footage continues to be used or
10 held out for use for manufacturing activities after conversion to
11 commercial property, shall not be required to pay the pro rata share of
12 tax for which an exemption was claimed during the tax year in which such
13 conversion occurred.
14 c. Except as provided in subdivision d of this section, any recipient
15 whose property is the subject of a certificate of eligibility for
16 commercial, industrial or renovation construction work, and who uses
17 such property as residential property or for any restricted activity
18 prior to the expiration of the benefit period, shall cease to be eligi-
19 ble for further exemption, abatement or deferral as of the date such
20 property was first used as residential property or for any restricted
21 activity. In the case of property in an area that was designated as an
22 exemption area at the time the certificate of eligibility was issued,
23 such recipient shall pay with interest any taxes for which an exemption
24 was claimed after such date, including the pro rata share of tax for
25 which any exemption was claimed during the tax year in which such use
26 occurred. In the case of industrial property, such recipient shall pay
27 with interest any taxes for which an exemption or abatement was claimed
28 after such date, including the pro rata share of tax for which any
29 exemption or abatement was claimed during the tax year in which such use
30 occurred. In the case of property in an area that was designated as a
31 deferral area at the time the certificate of eligibility was issued, all
32 deferred tax payments on the property shall become due and payable imme-
33 diately.
34 d. Notwithstanding subdivision c of this section, any recipient whose
35 property is the subject of a certificate of eligibility for commercial
36 or renovation construction work with an effective date of July first,
37 nineteen hundred ninety-two or after, and who, prior to the expiration
38 of the benefit period, uses a portion of such property as residential
39 property, shall cease to be eligible for further exemption for commer-
40 cial or renovation construction work for that portion of such property
41 used as residential property as of the date such portion of the property
42 was first used as residential property. Such recipient shall pay, with
43 interest, any taxes for which an exemption was claimed after such date
44 attributable to that portion of the property used as residential proper-
45 ty, including the pro rata share of tax for which such exemption was
46 claimed during the tax year in which such use occurred. Such recipient
47 shall continue to receive an exemption for commercial or renovation
48 construction work for that portion of the property which continues to be
49 used as commercial property.
50 § 11-263 Administration of the benefit program. The department of
51 finance shall have, in addition to any other functions, powers and
52 duties which have been or may be conferred on it by law, the following
53 functions, powers and duties:
54 (1) To publicize the availability of benefits pursuant to this part
55 for industrial, commercial and renovation construction work.
S. 8578 343
1 (2) To receive and review applications for certificates of eligibil-
2 ity, issue such certificates where authorized pursuant to section 11-260
3 of this part, and record the issuance of such certificates as prescribed
4 in such section.
5 (3) To receive evidence of expenditures made for construction, and
6 where such expenditures do not equal the amount required to qualify for
7 exemption from or abatement or deferral of tax payments to take appro-
8 priate action, including but not limited to denying, reducing, suspend-
9 ing, terminating or revoking benefits pursuant to this part.
10 (4) To enter and inspect property to determine whether it is indus-
11 trial or commercial or mixed-use and to determine whether (a) any such
12 property is being used for any restricted use, or (b) any property which
13 is the subject of a certificate of eligibility for industrial
14 construction work is being used as commercial property, or (c) any
15 industrial or commercial property is being used as residential or mixed-
16 use property, or (d) all or part of the nonresidential portion of mixed-
17 use property is being used as residential property.
18 (5) To collect all real property taxes for which payment is deferred
19 pursuant to this part.
20 (6) To collect all real property taxes, with interest, due and owing
21 as a result of reduction, suspension, termination or revocation of any
22 exemption from or abatement or deferral of taxes granted pursuant to
23 this part.
24 (7) To make and promulgate regulations to carry out the purposes of
25 this part including, but not limited to, regulations requiring appli-
26 cants to publish notice of their applications, defining manufacturing
27 and commercial activities and specifying the nature of work for which
28 expenses may be included in the minimum required expenditure, provided,
29 however, that any regulation increasing the minimum required expenditure
30 shall not apply to any person who is a recipient on the effective date
31 of such regulation. Such regulations shall include a requirement that
32 with respect to the construction work recipients and their contractors
33 shall be equal opportunity employers and shall also provide that persons
34 employed in the construction work shall implement a training program for
35 economically disadvantaged persons enrolled or eligible to be enrolled
36 in training programs approved by the department of labor, with partic-
37 ular reference to city residents.
38 § 11-264 Tax lien; interest rate. a. All taxes plus interest required
39 to be paid retroactively pursuant to this part shall constitute a tax
40 lien as of the date it is determined such taxes and interest are owed.
41 All interest shall be calculated from the date the taxes would have been
42 due but for the exemption, abatement or deferral claimed pursuant to
43 this part at three per centum above the applicable rate of interest
44 imposed by the city generally for non-payment of real property tax on
45 such date.
46 b. All taxes for which payment is deferred pursuant to section 11-257
47 of this part shall constitute a tax lien as of the date they are due and
48 payable in accordance with the provisions of that section.
49 § 11-265 Penalties for non-compliance, false statements and omissions.
50 a. The department of finance may deny, reduce, suspend, revoke or termi-
51 nate any exemption from or abatement or deferral of tax payments pursu-
52 ant to this part whenever:
53 (1) a recipient fails to comply with the requirements of this part or
54 the rules and regulations promulgated by the department of finance
55 pursuant thereto; or
S. 8578 344
1 (2) an application, certificate, report or other document delivered by
2 an applicant or recipient hereunder contains a false or misleading
3 statement as to a material fact or omits to state any material fact
4 necessary in order to make the statements therein not false or mislead-
5 ing, and may declare any applicant or recipient who makes such false or
6 misleading statement or omission to be ineligible for future exemption,
7 abatement or deferral pursuant to this part for the same or other prop-
8 erty.
9 b. Notwithstanding any other law to the contrary, a recipient shall be
10 personally liable for any taxes owed pursuant to this part whenever such
11 recipient fails to comply with such law and rules or makes such false or
12 misleading statement or omission, and the department of finance deter-
13 mines that such act was due to the recipient's willful neglect, or that
14 under the circumstances such act constituted a fraud on the department
15 of finance or a buyer or prospective buyer of the property. The remedy
16 provided herein for an action in personam shall be in addition to any
17 other remedy or procedure for the enforcement of collection of delin-
18 quent taxes provided by any general, special or local law. Any lease
19 provision which obligates a tenant to pay taxes which become due because
20 of willful neglect or fraud by the recipient, or otherwise relieve or
21 indemnify the recipient from any personal liability arising hereunder,
22 shall be void as against public policy except where the imposition of
23 such taxes or liability is occasioned by actions of the tenant in
24 violation of the lease.
25 § 11-266 Code violations; suspension of benefits. a. If a court, or
26 the environmental control board of the preceding municipality with
27 respect to matters within its jurisdiction, finds that at the property
28 which is the subject of a certificate of eligibility there has been a
29 violation of any of the provisions of the building, fire and air
30 pollution control codes of the preceding municipality set forth in
31 subdivision b of this section, all benefits pursuant to such certificate
32 shall be suspended unless within one hundred eighty days after the
33 department of finance has sent notice of such finding to the recipient,
34 and all other persons having a financial interest in the property who
35 have filed a timely request for such notice in such form as may be
36 prescribed by the department of finance, the recipient submits to the
37 department of finance, certification from the department of buildings,
38 the fire department or the department of environmental protection
39 respectively that the underlying code violation has been cured. If the
40 recipient fails to submit the required certification within the one
41 hundred eighty day period, the period of suspension shall be effective
42 retroactively to the time of the finding by the court or the environ-
43 mental control board. The suspension of benefits shall continue until
44 the recipient submits to the department of finance the required certif-
45 ication that the violation has been cured.
46 If the original finding of violation or the denial of certification is
47 appealed and a court or appropriate governmental agency finally deter-
48 mines that the finding of violation or denial of certification was
49 invalid, any benefits lost pursuant to this section to which the recipi-
50 ent was entitled shall be restored retroactively.
51 As applied to a recipient who is eligible for deferral of tax payments
52 pursuant to subdivision d of section 11-257 of this part, suspension of
53 benefits shall be deferred by operation of such section and interest at
54 the rate charged by the department of finance for overdue taxes shall be
55 charged on the amount of any tax payments already deferred by operation
S. 8578 345
1 of such section. The interest charged shall accrue from the beginning of
2 the period of suspension.
3 b. The provisions of subdivision a of this section shall apply to
4 violations of the following provision of the code of the preceding muni-
5 cipality:
6 (1) section 27-4260 of the preceding municipality;
7 (2) section 27-4265 of the preceding municipality;
8 (3) section 27-4267 of the preceding municipality;
9 (4) section 27-954 of the preceding municipality;
10 (5) section 27-339 of the preceding municipality;
11 (6) subdivision (c) of section 27-353 of the preceding municipality;
12 (7) paragraph twelve of subdivision (f) of section 27-972 of the
13 preceding municipality;
14 (8) paragraph ten of subdivision (g) of section 27-972 of the
15 preceding municipality;
16 (9) subdivision (c) of section 27-975 of the preceding municipality;
17 (10) subdivision (c) of section 27-989 of the preceding munici-
18 pality;
19 (11) the following provisions to the extent applicable to cabarets
20 as defined in article two of subchapter two of the building code of
21 the preceding municipality:
22 (a) section 27-542 of the preceding municipality;
23 (b) subparagraph d of paragraph two of subdivision (b) of section
24 27-547 of the preceding municipality;
25 (c) paragraph three of subdivision (a) of section 27-549 of the
26 preceding municipality;
27 (d) subdivision (b) of section 27-549 of the preceding municipality;
28 (12) section 27-127 of the preceding municipality when the violation
29 concerns an unsafe condition on a facade of a building which exceeds
30 six stories in height;
31 (13) section five hundred one of reference standard 13-1 of the
32 preceding municipality;
33 (14) section one thousand three of reference standard 13-1 of the
34 preceding municipality;
35 (15) paragraph six of subdivision (b) of section 24-178 of the
36 preceding municipality; and
37 (16) section 24-185 of the preceding municipality.
38 § 11-267 Annual report. The department of finance shall submit an
39 annual report to the council, on April first of each year, concerning
40 the status of the program established pursuant to this part and its
41 effects in the city, including information on certificates of eligibil-
42 ity issued and jobs created in each area where benefits are available.
43 CHAPTER 3
44 TAX LIENS AND TAX SALES
45 § 11-301 When taxes, assessments, sewer rents, sewer surcharges and
46 water rents to be liens on land assessed. All taxes and all assessments
47 and all sewer rents, sewer surcharges and water rents, and the interest
48 and charges thereon, which may be laid or may have heretofore been laid,
49 upon any real estate now in the city, shall continue to be, until paid,
50 a lien thereon, and shall be preferred in payment to all other charges.
51 The words "water rents" whenever they are used in this chapter shall
52 include uniform annual charges and extra and miscellaneous charges for
53 the supply of water, charges in accordance with meter rates, minimum
54 charges for the supply of water by meter, annual service charges and
55 charges for meters and their connections and for their setting, repair
56 and maintenance, penalties and fines and all lawful charges for the
S. 8578 346
1 supply of water imposed pursuant to the New York city municipal water
2 finance authority act, which is set forth in title two-A of article five
3 of the public authorities law. Charges for expense of meters, their
4 connections, setting, repair or maintenance shall not be due or become a
5 charge or lien on the premises where a water meter shall be installed or
6 against which a charge shall be made, until such charge shall have been
7 definitely fixed by the commissioner of environmental protection, and an
8 entry of the amount thereof shall have been made with the date of such
9 entry in the book in which the charges for water supplied by meter
10 against such premises are to be entered. A charge in accordance with
11 meter rates or minimum charges for the supply of water measured by
12 meter, and a service charge shall not be due or become a lien or charge
13 upon the premises where such meter is installed until an entry shall
14 have been made indicating that such premises are metered, with the date
15 of such entry in the book in which the charges for water by meter meas-
16 urement against such premises are to be entered. The words "sewer rents"
17 when used in this chapter shall mean any rents or charges imposed pursu-
18 ant to section 24-514 of the code of the preceding municipality or
19 pursuant to the New York city municipal water finance authority act,
20 which is set forth in title two-A of article five of the public authori-
21 ties law. The words "sewer surcharges" when used in this chapter shall
22 mean the charges imposed pursuant to section 24-523 of the code of the
23 preceding municipality or pursuant to the New York city municipal water
24 finance authority act, which is set forth in title two-A of article five
25 of the public authorities law. Whenever an increase in the amount of
26 uniform annual charges or extra or miscellaneous charges shall have been
27 made or a charge shall have been made for water services for any build-
28 ing completed subsequent to the first day of January in each year, the
29 amount of such increase of the charge or new charge for such new build-
30 ing shall not be due or become a lien or charge against the premises
31 until the amounts thereof shall have been entered with the date of such
32 entries, respectively, in the books in which the uniform annual charges
33 and extra or miscellaneous charges against such premises are to be
34 entered. The words "tax lien" when used in this chapter shall mean the
35 lien arising pursuant to the provisions of this chapter or pursuant to
36 the New York city municipal water finance authority act, which is set
37 forth in title two-A of article five of the public authorities law, as a
38 result of the nonpayment of taxes, assessments, sewer rents, sewer
39 surcharges, water rents, any other charges that are made a lien subject
40 to the provisions of this chapter, the costs of any advertisements and
41 notices given pursuant to this chapter, any other charges that are due
42 and payable, a surcharge pursuant to section 11-332 of this chapter if
43 the tax lien is sold, interest and penalties thereon and the right of
44 the city to receive such amounts. The words "tax lien certificate" when
45 used in this chapter shall mean the instrument evidencing a tax lien and
46 executed by the commissioner of finance or his or her designee at such
47 time as such lien is transferred to a purchaser upon sale of such lien
48 by the city.
49 § 11-302 Interest rates not to be reduced. The commissioner of
50 finance shall not reduce the rate of interest upon any taxes or assess-
51 ment below the amount fixed by law.
52 § 11-302.1 Error in record of payment of tax or assessment. (a) If the
53 records of the department of finance show a charge as paid due to a
54 misapplied payment or other error, and the department later corrects the
55 records, interest shall not be imposed until after the department (i)
56 corrects the error and (ii) sends a statement of account or other simi-
S. 8578 347
1 lar bill or notice stating the amount due and when the charge must be
2 paid to avoid the accrual of interest.
3 (b) The provisions of this section shall not apply to an installment
4 of tax or an assessment for which payment, made electronically, by
5 check, or by other means, was dishonored.
6 (c) The provisions of this section shall not apply where the error in
7 the records of the department was made as a result of fraud or other
8 criminal conduct by the taxpayer or any person acting on his or her
9 behalf or at his or her request.
10 § 11-303 Arrears to be provided for in assessment rolls. There shall
11 be ruled in the yearly assessment rolls of the taxes in each section or
12 ward, a column headed "arrears," in which the commissioner of finance
13 shall annually before any taxes for the year are collected, cause to be
14 entered the word "arrears" opposite to the ward, lot, town, block and
15 map numbers on which any arrears of taxes, sewer rents, sewer surcharges
16 or water rents shall be due, or on which any assessment shall remain
17 unpaid which was due or confirmed one month prior to the first of July,
18 then last past.
19 § 11-304 Bills for taxes to show arrears. There shall be ruled a
20 column for "arrears" in every bill rendered for taxes for lots on which
21 such arrears or assessments, sewer rents, sewer surcharges or water
22 rents, and interest and penalties thereon, may be due as aforesaid, or
23 may have been sold and yet be redeemable, in which shall be written in a
24 conspicuous place, "arrears". The columns for arrears indicate lots
25 sold for arrears, or to be sold therefor; arrears to be paid and lots
26 redeemed at the office of the city collector.
27 § 11-305 Commissioner of finance to publish notice of confirmation of
28 assessments. It shall be the duty of the commissioner of finance to
29 give public notice, by advertisement, for at least ten days, in the City
30 Record and as soon as practicable and within ten days after the confir-
31 mation of any assessment, that the same has been confirmed, specifying
32 the title of such assessment, and the date of its confirmation, and also
33 the date of entry in the record of titles of assessments kept in the
34 department of finance, addressed as a class to all persons, owners of
35 property affected by any such assessment, that unless the amount
36 assessed for benefit on any person or property shall be paid within
37 ninety days after the date of the entry of any such assessment, interest
38 shall be thereafter collected thereon as provided in section 11-306 of
39 this chapter.
40 § 11-306 Interest to be charged if assessments unpaid for ninety days;
41 payment in installments. If any assessment shall remain unpaid for the
42 period of ninety days after the date of the entry thereof on the record
43 of titles of assessments, it shall be the duty of the commissioner of
44 finance or his or her designee to charge, collect and receive interest
45 thereon, at the rate of seven percent per annum, to be calculated to the
46 date of payment from the date when such assessment became a lien as
47 provided by section three hundred fourteen of the New York city charter
48 in force at the time of the adoption of the New York city charter by
49 referendum in the year nineteen hundred sixty-one, provided, however,
50 that the city collector shall accept and credit as payments on account
51 of assessments now or hereafter levied against any parcel or plot of
52 property, such sums of money not less than twenty-five dollars or multi-
53 ples thereof in amount as may be tendered for payment on account of any
54 assessment now or hereafter levied against any property. Upon requisi-
55 tion by the commissioner of finance for the assessed valuation of the
56 property affected by any assessment, the president of the tax commis-
S. 8578 348
1 sion, or any tax commissioner duly assigned by him or her, shall forth-
2 with certify the same to the commissioner of finance.
3 § 11-307 Payments in installments of assessments heretofore or here-
4 after confirmed. Upon the application in writing of the owner of a
5 parcel of real property affected by an unpaid assessment heretofore or
6 hereafter confirmed the amount of which is one hundred dollars or more,
7 the commissioner of finance shall divide the assessment upon such parcel
8 into fifteen parts or, if the application so requests, into five parts,
9 as nearly equal as may be, or if the amount of such assessment is fifty
10 dollars or more but less than one hundred dollars the commissioner of
11 finance shall divide the assessment upon such parcel into five parts as
12 nearly equal as may be. One part thereof in any event shall be due and
13 payable, and in each case as many more of such parts shall be due and
14 payable as years may have elapsed since the entry of such original
15 assessment for collection. Such parts thereof with interest at the rate
16 of seven percent per annum on the amount of the assessment unpaid shall
17 be paid at the time of application as a condition of the extension of
18 time of payment of the remainder as provided in this section. Upon
19 payment of such parts and interests, the balance of such assessments
20 shall cease to be a lien upon such real property except as hereinafter
21 provided; and the remaining parts shall be paid in annual installments
22 as herein provided. Of such installments the first, with interest at
23 the rate of four percent thereon, and on the installments thereafter to
24 become due, from the date of payment of the parts of such assessment
25 paid as hereinbefore provided, shall become due and payable and be a
26 lien on the real property assessed, on the next ensuing anniversary of
27 the date of entry of the assessment in the record of titles of assess-
28 ments confirmed; and one, with interest at the rate of four percent per
29 annum thereon and on the installments thereafter to become due shall
30 become due and payable and be a lien upon the real property assessed,
31 annually thereafter. After the time herein specified for annual
32 installments and interest to become due, the amount of the lien thereon
33 shall bear interest at the rate of seven percent per annum. Any
34 installment assessment shall not be further divided into installments.
35 The first installment of an assessment divided within the ninety-day
36 period provided by section 11-306 of this chapter during which assess-
37 ment may be paid without interest shall not be subject to interest, but
38 the second installment with interest at the rate of four percent per
39 annum from the original date of entry shall become due and payable and
40 be a lien upon the real property on the anniversary date of entry of the
41 assessment and the remaining installments with interest shall become due
42 and payable and be a lien on the real property as hereinbefore provided.
43 The installments not due with interest at the rate of four percent per
44 annum to the date of payment may be paid at any time. The provisions of
45 this chapter with reference to the sale of tax liens shall apply to the
46 several unpaid installments and the interest thereon in the same manner
47 as if each installment and the interest thereon had been imposed as an
48 assessment payable in one payment, at the time such installment became a
49 lien. In the event of the acquisition by condemnation by the city for
50 public purposes any property upon which there are installments not due,
51 such installments shall become due as of the date of the entry of the
52 final order of the supreme court or the confirmation of the report of
53 the commissioners in the condemnation proceedings, and shall be set off
54 against an award that may be made for the property acquired.
55 When an award for damage shall accrue to the same person who is or was
56 at the time the assessment was confirmed liable for the assessments for
S. 8578 349
1 benefit on the abutting property in the same proceedings, only the
2 portion of the assessment in excess of such award may be considered in
3 levying in installments under the provisions of this section. Except as
4 provided in this section, no such annual installment shall be a lien or
5 deemed to be an encumbrance upon the title to the real property assessed
6 until it becomes due as herein provided.
7 § 11-308 Apportionment of assessment. If a sum of money in gross has
8 been or shall be assessed upon any lands or premises in the city, any
9 person or persons claiming any divided or undivided part thereof may pay
10 such part of the sums of money so assessed, also of the interest and
11 charges due or charged thereon, as the commissioner of finance may deem
12 to be just and equitable. The remainder of the sum of money so
13 assessed, together with the interest and charges, shall be a lien upon
14 the residue of the land and premises only, and the tax lien upon such
15 residue may be sold in pursuance of the provisions of this chapter, to
16 satisfy the residue of such assessment, interest, or charges thereon, in
17 the same manner as though the residue of such assessment had been
18 imposed upon such residue of such land or premises.
19 § 11-309 Notifying taxpayers of assessments. a. The owner of any lot,
20 piece or parcel of land in the city of Staten Island or any person
21 interested in such lot, piece or parcel, may file with the department of
22 finance, a statement containing a brief description of such land,
23 together with the section, block and lot number thereof, or such other
24 identifying information as at the time is established by the department
25 of finance, and a statement of the applicant's interest therein, togeth-
26 er with a written request that such lot, piece or parcel of land be
27 registered in the name of the applicant. In such statement the applicant
28 shall designate a post office address to which notifications addressed
29 to such applicant shall be sent. A brief description of such lot, piece
30 or parcel of land corresponding to the description thereof in the state-
31 ment so filed, together with the name of the applicant and his or her
32 post office address and the date of such application, shall thereupon be
33 registered in the department of finance.
34 b. As soon as any assessment for a local improvement shall have been
35 confirmed, including assessments confirmed by a court of record, and the
36 list thereof shall have been entered and filed in the department of
37 finance, such assessment list shall be examined and thereupon, within
38 twenty days after such entry there shall be mailed a notice addressed to
39 each person in whose name any lot, piece or parcel of land, affected by
40 such assessment, is registered, at the post office address registered in
41 the records of the department of finance, which notice shall contain the
42 brief description of the lot, piece or parcel of land registered in the
43 name of the person to whom such notice is addressed, together with the
44 amount assessed thereon, date of entry, and title of the improvement for
45 which such assessment is made, and a statement of the rate of interest
46 or penalty imposed for the nonpayment of such assessment, and the date
47 from which the interest or penalty will be computed. Failure to comply
48 with the provisions herein however, shall in no manner affect the valid-
49 ity or collectability of any assessment heretofore or hereafter
50 confirmed, nor shall any claim arise or exist against the comptroller,
51 the commissioner of finance, or any officer of the city by reason of
52 such failure.
53 c. The commissioner of finance or his or her designee shall for the
54 purpose of this section provide appropriate records for each section of
55 the city, included within the respective boroughs, as the same shall
56 appear upon the tax maps of the city.
S. 8578 350
1 § 11-310 Water charges and sewer rents to be transmitted to commis-
2 sioner of finance. The commissioner of environmental protection shall
3 cause to be transmitted to the commissioner of finance an account of all
4 water rents, charges, fines and penalties and all sewer rents, charges,
5 fines and penalties as the same become due or accrue.
6 § 11-311 Sewer surcharges to be transmitted to commissioner of
7 finance. The commissioner of environmental protection shall cause to be
8 transmitted to the commissioner of finance an account of all sewer
9 surcharges, fines and penalties as the same become due or accrue.
10 § 11-312 Water rents; when payable; penalty for nonpayment. a. One-
11 half (i) the uniform annual water charges and extra and miscellaneous
12 charges for water not metered and (ii) annual service charges shall
13 become due and payable, in advance if entered on January first, nineteen
14 hundred seventy-four for the period commencing January first, nineteen
15 hundred seventy-four and ending June thirtieth, nineteen hundred seven-
16 ty-four. Commencing on June thirtieth, nineteen hundred seventy-four,
17 uniform annual water charges and extra and miscellaneous charges for
18 water not metered and annual service charges shall be due and payable in
19 advance on the thirtieth day of June in each year, if entered. If any of
20 such rents and charges which become due and payable on or before June
21 thirtieth, nineteen hundred seventy-six shall not have been paid to the
22 commissioner of finance or his or her designee on or before the last day
23 of the month following the month of entry, it shall be the duty of the
24 commissioner of finance or his or her designee to charge, collect and
25 receive interest thereon to be calculated at the rate of seven percent
26 per annum from the date when such rents and charges became due and paya-
27 ble to December thirty-first, nineteen hundred seventy-six, and at the
28 rate of fifteen percent per annum from January first, nineteen hundred
29 seventy-seven to the date of payment. If any of such rents and charges
30 which shall become due and payable on or after June thirtieth, nineteen
31 hundred seventy-seven are not paid to the commissioner of finance or his
32 or her designee on or before the last day of the month following the
33 month of entry, it shall be the duty of the commissioner of finance or
34 his or her designee to charge, collect and receive interest thereon to
35 be calculated at the rate of fifteen percent per annum from the date
36 when such rents and charges became due and payable to the date of
37 payment. If not so entered and payable, but entered at any time subse-
38 quent thereto, they shall be due and payable when entered and notice
39 thereof shall be mailed within five days of such entry to the premises
40 against which they are imposed addressed to either the owner or the
41 occupant and, if entered on or before December thirty-first, nineteen
42 hundred seventy-six but not paid on or before the last day of the month
43 following the month of entry, it shall be the duty of the commissioner
44 of finance or his or her designee to charge, collect and receive inter-
45 est thereon to be calculated at the rate of seven percent per annum from
46 the date of entry to December thirty-first, nineteen hundred seventy-
47 six, and at the rate of fifteen percent per annum from January first,
48 nineteen hundred seventy-seven to the date of payment; if entered on or
49 after January first, nineteen hundred seventy-seven but not paid on or
50 before the last day of the month following the month of entry, it shall
51 be the duty of the commissioner of finance or his or her designee to
52 charge, collect and receive interest thereon to be calculated at the
53 rate of fifteen percent per annum from the date of entry to the date of
54 payment.
55 b. All charges for meters and their connections and for their setting,
56 repair and maintenance, and all charges in accordance with meter rates
S. 8578 351
1 for supply of water measured by meter, including minimum charges for the
2 supply of water measured by meter, shall be due and payable when
3 entered, and notice thereof shall be mailed within five days of such
4 entry stating the amount due and the nature of the rent or charge to the
5 last known address of the person whose name appears on the record of
6 such rents and charges as being the owner, occupant or agent or, where
7 no name appears, to the premises addressed to either the owner or the
8 occupant, and if entered on or before December thirty-first, nineteen
9 hundred seventy-six but not paid on or before the last day of the month
10 following the month of entry, it shall be the duty of the commissioner
11 of finance or his or her designee to charge, collect and receive inter-
12 est thereon to be calculated at the rate of seven percent per annum from
13 the date of entry to December thirty-first, nineteen hundred seventy-
14 six, and at the rate of fifteen percent per annum from January first,
15 nineteen hundred seventy-seven to the date of payment; if entered on or
16 after January first, nineteen hundred seventy-seven but not paid on or
17 before the thirtieth day following the date of entry, it shall be the
18 duty of the commissioner of finance or his or her designee to charge,
19 collect and receive interest thereon to be calculated at the rate of
20 fifteen percent per annum from the date of entry to the date of payment.
21 § 11-313 Sewer rents; when payable; penalty for nonpayment. a. As used
22 in this section:
23 1. The term "metered premises" shall mean premises, or any part there-
24 of, (a) to which water is supplied by the municipal water supply system
25 or by a private water company, and (b) at which the quantity of water
26 supplied is measured by a water meter.
27 2. The term "unmetered premises" shall mean premises, or any part
28 thereof, (a) to which water is supplied by the municipal water supply
29 system or by a private water company, and (b) at which the quantity of
30 water supplied is not measured by a water meter.
31 b. The sewer rents charged against metered premises in accordance with
32 the provisions of paragraphs two and three of subdivision b of section
33 24-514 of the code of the preceding municipality and the rules duly
34 promulgated pursuant to such section, including the minimum rents for
35 the use of the sewer system, charged pursuant to such section and rules,
36 and the sewer rents charged against any premises in accordance with the
37 provisions of paragraphs four and five of subdivision b of section
38 24-514 of the code of the preceding municipality and rules duly promul-
39 gated pursuant to such section, including the minimum rents for the use
40 of the sewer system, charged pursuant to such section and rules shall
41 become due and shall become a charge or lien on the premises when the
42 amount thereof shall have been fixed by the commissioner of environ-
43 mental protection, and an entry thereof shall have been made against
44 such premises with the date of such entry, in the book in which sewer
45 rents are to be entered. The sewer surcharges charged against any prem-
46 ises pursuant to section 24-523 of the code of the preceding munici-
47 pality shall become due and shall become a charge or lien on the prem-
48 ises when the amount thereof shall have been fixed by the commissioner
49 of environmental protection and an entry thereof shall have been made
50 against such premises in the book in which sewer surcharges are to be
51 entered. A notice thereof, stating the amount due and the nature of the
52 rent, surcharge or charge shall be mailed, within five days after such
53 entry, to the last known address of the person whose name appears upon
54 the records in the office of the department of finance as being the
55 owner, occupant or agent or, where no name appears, to the premises
56 addressed to either the owner or the occupant. If such rent, surcharge
S. 8578 352
1 or charge shall have been entered on or before December thirty-first,
2 nineteen hundred seventy-six but not paid on or before the last day of
3 the month following the month of entry, it shall be the duty of the
4 commissioner of finance or his or her designee to charge, collect and
5 receive interest thereon to be calculated at the rate of seven percent
6 per annum from the date of entry to December thirty-first, nineteen
7 hundred seventy-six, and at the rate of fifteen percent per annum from
8 January first, nineteen hundred seventy-seven to the date of payment; if
9 entered on or after January first, nineteen hundred seventy-seven but
10 not paid on or before the thirtieth day following the date of entry, it
11 shall be the duty of the commissioner of finance or his or her designee
12 to charge, collect and receive interest thereon to be calculated at the
13 rate of fifteen percent per annum from the date of entry to the date of
14 payment. The rents or charges for the use of the sewer system charged
15 during any specified period of time pursuant to the provisions of
16 section 24-514 of the code of the preceding municipality and the rules
17 promulgated thereunder shall be computed, in accordance with the
18 provisions of such section and the rules duly promulgated thereunder, on
19 the basis of water rents or charges computed for the same period.
20 c. Sewer rents charged against unmetered premises in accordance with
21 the provisions of paragraphs two and three of subdivision b of section
22 24-514 of the code of the preceding municipality and the rules duly
23 promulgated pursuant to such section, for the use of the sewer system
24 during the one-year period commencing on the first day of July of each
25 year, shall be due and payable and shall become a charge or lien on the
26 premises on the first day of January following such first day of July,
27 if entered, except that commencing on June thirtieth, nineteen hundred
28 seventy-four such sewer rents shall be due and payable in advance on the
29 thirtieth day of June in each year, if entered, and shall become a
30 charge or lien on the premises on such date. If any of such rents or
31 charges which became due and payable on or before June thirtieth, nine-
32 teen hundred seventy-six shall not have been paid to the commissioner of
33 finance or his or her designee within thirty days after such first day
34 of January, or, commencing on the thirtieth day of June, nineteen
35 hundred seventy-four, on or before the last day of the month following
36 the month of entry, it shall be the duty of the commissioner of finance
37 or his or her designee to charge, collect and receive interest thereon
38 to be calculated at the rate of seven percent per annum from the date
39 when such charges became due and payable to December thirty-first, nine-
40 teen hundred seventy-six, and at the rate of fifteen percent per annum
41 from January first, nineteen hundred seventy-seven to the date of
42 payment. If any of such rents or charges which shall become due and
43 payable on or after June thirtieth, nineteen hundred seventy-seven are
44 not paid to the commissioner of finance or his or her designee on or
45 before the last day of the month following the month of entry, it shall
46 be the duty of the commissioner of finance or his or her designee to
47 charge, collect and receive interest thereon to be calculated at the
48 rate of fifteen percent per annum from the date when such rents or
49 charges became due and payable to the date of payment. If not so entered
50 and payable, but entered at any time subsequent thereto, they shall be
51 due and payable and shall become a charge or lien on the premises when
52 entered and notice thereof shall be mailed within five days after such
53 entry, to the last known address of the person whose name appears upon
54 the records in the department of finance as the owner or the occupant or
55 if no name appears, to the premises addressed to either the owner or
56 occupant. If any of such rents or charges which were entered on or
S. 8578 353
1 before December thirty-first, nineteen hundred seventy-six but not paid
2 on or before the last day of the month following the month of entry, it
3 shall be the duty of the commissioner of finance or his or her designee
4 to charge, collect and receive interest thereon to be calculated at the
5 rate of seven percent per annum from the date of entry to December thir-
6 ty-first, nineteen hundred seventy-six, and at the rate of fifteen
7 percent per annum from January first, nineteen hundred seventy-seven to
8 the date of payment; if entered on or after January first, nineteen
9 hundred seventy-seven but not paid on or before the last day of the
10 month following the month of entry, it shall be the duty of the commis-
11 sioner of finance or his or her designee to charge, collect and receive
12 interest thereon to be calculated at the rate of fifteen percent per
13 annum from the date of entry to the date of payment. The sewer rents
14 charged against unmetered premises for the use of the sewer system
15 during the one-year period commencing on the first day of July of each
16 year shall be computed in accordance with the provisions of section
17 24-514 of the code of the preceding municipality and the rules duly
18 promulgated thereunder, upon the basis of water rents or charges
19 computed for the same period.
20 d. Whenever an increase in the amount of the sewer rent charged
21 against unmetered premises shall have been made or a charge shall have
22 been made for sewer services for any building completed subsequent to
23 the first day of July in each year, the amount of such increase of the
24 charge or new charge for such new building shall not be due or become a
25 lien or charge against the premises until the amounts thereof shall have
26 been entered with the date of such entries, respectively, in the books
27 in which sewer rents charged against such premises are to be entered.
28 e. No later than the twenty-fifth day of May in each year, the banking
29 commission shall transmit a written recommendation to the council of a
30 proposed interest rate to be charged for nonpayment of sewer rents. In
31 making such recommendations the commission shall consider the prevailing
32 interest rates charged for commercial loans extended to prime borrowers
33 by commercial banks operating in the city and shall propose a rate of at
34 least six per centum per annum greater than such rates. The council may
35 by resolution adopt an interest rate to be charged for nonpayment of
36 sewer rents pursuant to section 11-224 of the code and, for nonpayment
37 of sewer rents that become due and payable on or after July first, two
38 thousand five, pursuant to section 11-224.1 of the code, and may specify
39 in such resolution the date on which such interest rate is to take
40 effect.
41 § 11-314 Notice of rules and regulations; penalty for nonpayment;
42 water supply cut off. The rates and charges for supply of water, the
43 annual service charges and minimum charges, the sewer rents, the sewer
44 surcharges, the rules and regulations concerning the use of water, all
45 other rules and regulations affecting users of water or concerning
46 charges for supply of water, restrictions of the use of water, installa-
47 tion of meters, and all rules and regulations affecting property
48 connected with the sewer system, penalties and fines for violations of
49 rules and regulations shall be printed on each bill and permit so far as
50 in the judgment of the commissioner of environmental protection they are
51 applicable. This section and such printing and the printing of this
52 section on such bills and permits shall be sufficient notice to owners,
53 tenants or occupants of premises to authorize the imposition and recov-
54 ery of any charges, surcharges and fines imposed under such rules and
55 regulations and of any penalties imposed in pursuance of this chapter in
56 addition to cutting off the supply of water. Where water charges payable
S. 8578 354
1 in advance or sewer rents or charges payable as provided in subdivision
2 c of section 11-313 of this chapter, are not paid within the period
3 covered by such charges or rents, and a notice of such nonpayment is
4 mailed by the commissioner of finance to the premises addressed to
5 "owner or occupant," the commissioner of environmental protection may
6 shut off the supply of water to such premises. Where water charges not
7 payable in advance or sewer rents, sewer surcharges or charges payable
8 as provided in subdivisions b and d of section 11-313 of this chapter
9 have been made by the department and remain unpaid for more than thirty
10 days or where the commissioner of environmental protection has certified
11 that there is a flagrant and continued violation of a provision or
12 provisions of section 24-523 of the code or of any rule or regulation
13 promulgated pursuant thereto or of any order of the commissioner of
14 environmental protection issued pursuant thereto, after notice thereof
15 mailed to the premises addressed to "owner or occupant," the commission-
16 er of environmental protection may shut off the supply of water to the
17 premises.
18 § 11-315 Enforcement of collection of sewer rents, sewer surcharges
19 and water rents. Sewer rents, sewer surcharges, charges, penalties and
20 fines, and interest thereon, and water rents, charges, penalties and
21 fines, and interest thereon, shall after they are payable to the commis-
22 sioner of finance or his or her designee be enforced in the manner
23 provided in this chapter and chapter four of this title. In addition to
24 collecting sewer rents, sewer surcharges, charges, penalties and fines
25 and interest thereon and water rents, charges, penalties and fines and
26 interest thereon in the manner provided in this chapter and chapter four
27 of this title, the city may maintain an action for their recovery
28 against the person for whose benefit or by whom the water is taken or
29 used or for whose benefit or by whom sewer service is used.
30 § 11-316 Bills of arrears of taxes, assessments, sewer rents, sewer
31 surcharges and water rents, any other charges that are made a lien
32 subject to the provisions of this chapter, and interest and penalties
33 thereon to be furnished when requested. The commissioner of finance or
34 his or her designee, upon the written request of the owner, the proposed
35 vendee under a contract of sale, a mortgagee, any person having a vested
36 or contingent interest in any lot or lots or their duly authorized
37 agent, or any person who has made a filing pursuant to section 11-309 of
38 this chapter shall furnish a bill of all arrears of taxes on any lot or
39 lots due prior to the first of September, then last past, of sewer
40 rents, sewer surcharges and water rents, assessments, any other charges
41 that are made a lien subject to the provisions of this chapter, and
42 interest and penalties thereon, which are due and payable. Upon the
43 payment of such bill which shall be called a bill of arrears the receipt
44 of the commissioner of finance or his or her designee thereon shall be
45 conclusive evidence of such payment. The commissioner of finance or his
46 or her designee shall cause to be kept an account of amounts so
47 collected, and the certificate of the commissioner of finance or his or
48 her designee, that there are no tax liens on such lot or lots, shall
49 forever free such lot or lots from all liens of taxes, sewer rents,
50 sewer surcharges or water rents, assessments, any other charges that are
51 made a lien subject to the provisions of this chapter, and interest and
52 penalties thereon that are due and payable prior to the date of such
53 receipt or certificate, but not from the lien of any tax lien duly sold
54 and not theretofore satisfied.
55 § 11-317 Fees for searches to be added to bills. Fees for such search-
56 es shall be included in the bills mentioned in section 11-316 of this
S. 8578 355
1 chapter, and also charges for certificates, which shall be given by the
2 commissioner of finance or his or her designee respecting lots on which
3 there may be no arrears when searches are required. Such fees shall be
4 regulated by local law.
5 § 11-318 Fee for certified search and bill of arrears. A fee of twen-
6 ty-five dollars shall be paid to and collected by the commissioner of
7 finance or his or her designee on his or her furnishing a certified
8 search and bill of arrears on each lot or piece of property mentioned or
9 referred to in the written request therefor. The commissioner of finance
10 shall be authorized to waive or reduce such fee in connection with any
11 sale of a tax lien or tax liens pursuant to this chapter.
12 § 11-319 Sales of tax liens. a. A tax lien or tax liens on a property
13 or any component of the amount thereof may be sold by the city as
14 authorized by subdivision b of this section, when such tax lien or tax
15 liens shall have remained unpaid in whole or in part for one year,
16 provided, however, that a tax lien or tax liens on any class one proper-
17 ty or any class two property that is a residential condominium or resi-
18 dential cooperative, as such classes of property are defined in subdivi-
19 sion one of section eighteen hundred two of the real property tax law,
20 may be sold by the city only when the real property tax component of
21 such tax lien or tax liens shall have remained unpaid in whole or in
22 part for three years and, in the case of any such class one property
23 that is not vacant land or any such class two property that is a resi-
24 dential condominium or residential cooperative, as such classes of prop-
25 erty are defined in subdivision one of section eighteen hundred two of
26 the real property tax law, equals or exceeds the sum of five thousand
27 dollars, or, in the case of any class two residential property owned by
28 a company organized pursuant to article eleven of the private housing
29 finance law that is not a residential condominium or a residential coop-
30 erative, as such classes of property are defined in subdivision one of
31 section eighteen hundred two of the real property tax law, for two
32 years, and equals or exceeds the sum of five thousand dollars, or, in
33 the case of abandoned class one property or abandoned class two property
34 that is a residential condominium or residential cooperative, for eigh-
35 teen months, and after such sale, shall be transferred, in the manner
36 provided by this chapter, and provided, further, however, that (i) the
37 real property tax component of such tax lien may not be sold pursuant to
38 this subdivision on any: (A) residential real property in class one that
39 is receiving an exemption pursuant to section 11-245.3 or 11-245.4 of
40 this title, or pursuant to section four hundred fifty-eight of the real
41 property tax law with respect to real property purchased with payments
42 received as prisoner of war compensation from the United States govern-
43 ment, or pursuant to paragraph (b) or (c) of subdivision two of section
44 four hundred fifty-eight-a of the real property tax law, or where the
45 owner of such residential real property in class one is receiving bene-
46 fits in accordance with department of finance memorandum 05-3, or any
47 successor memorandum thereto, relating to active duty military person-
48 nel, or where the owner of such residential real property in class one
49 has been allowed a credit pursuant to subsection (e) of section six
50 hundred six of the tax law for the calendar year in which the date of
51 the first publication, pursuant to subdivision a of section 11-320 of
52 this chapter, of the notice of sale, occurs or for the calendar year
53 immediately preceding such date; or (B) real property that was granted
54 an exemption pursuant to section four hundred twenty-a, four hundred
55 twenty-b, four hundred forty-six, or four hundred sixty-two of the real
56 property tax law in one of the two fiscal years preceding the date of
S. 8578 356
1 such sale, provided that: (1) such exemption was granted to such real
2 property upon the application of a not-for-profit organization that owns
3 such real property on or after the date on which such real property was
4 conveyed to such not-for-profit organization; (2) the real property tax
5 component of such lien arose on or after the date on which such real
6 property was conveyed to such not-for-profit organization; and (3) such
7 not-for-profit organization is organized or conducted for one of the
8 purposes described in paragraph a or paragraph b of subdivision one of
9 section 11-246 of this title, and (ii) the sewer rents component, sewer
10 surcharges component or water rents component of such tax lien may not
11 be sold pursuant to this subdivision on any one family residential real
12 property in class one or on any two or three family residential real
13 property in class one that is receiving an exemption pursuant to section
14 11-245.3 or 11-245.4 of this title, or pursuant to section four hundred
15 fifty-eight of the real property tax law with respect to real property
16 purchased with payments received as prisoner of war compensation from
17 the United States government, or pursuant to paragraph (b) or (c) of
18 subdivision two of section four hundred fifty-eight-a of the real prop-
19 erty tax law, or where the owner of any two or three family residential
20 real property in class one is receiving benefits in accordance with
21 department of finance memorandum 05-3, or any successor memorandum ther-
22 eto, relating to active duty military personnel, or where the owner of
23 any two or three family residential real property in class one has been
24 allowed a credit pursuant to subsection (e) of section six hundred six
25 of the tax law for the calendar year in which the date of the first
26 publication, pursuant to subdivision a of section 11-320 of this chap-
27 ter, of the notice of sale, occurs or for the calendar year immediately
28 preceding such date. A tax lien or tax liens on any property classified
29 as a class two property, except a class two property that is a residen-
30 tial condominium or residential cooperative, or a class two residential
31 property owned by a company organized pursuant to article eleven of the
32 private housing finance law that is not a residential condominium or a
33 residential cooperative, or class three property, as such classes of
34 property are defined in subdivision one of section eighteen hundred two
35 of the real property tax law, shall not be sold by the city unless such
36 tax lien or tax liens include a real property tax component as of the
37 date of the first publication, pursuant to subdivision a of section
38 11-320 of this chapter, of the notice of sale. Notwithstanding any
39 provision of this subdivision to the contrary, any such tax lien or tax
40 liens that remain unpaid in whole or in part after such date may be sold
41 regardless of whether such tax lien or tax liens include a real property
42 tax component. A tax lien or tax liens on a property classified as a
43 class four property, as such class of property is defined in subdivision
44 one of section eighteen hundred two of the real property tax law, shall
45 not be sold by the city unless such tax lien or tax liens include a real
46 property tax component or sewer rents component or sewer surcharges
47 component or water rents component or emergency repair charges compo-
48 nent, where such emergency repair charges accrued on or after January
49 first, two thousand six and are made a lien pursuant to section 27-2144
50 of this code, as of the date of the first publication, pursuant to
51 subdivision a of section 11-320 of this chapter, of the notice of sale,
52 provided, however, that any tax lien or tax liens that remain unpaid in
53 whole or in part after such date may be sold regardless of whether such
54 tax lien or tax liens include a real property tax component, sewer rents
55 component, sewer surcharges component, water rents component or emergen-
56 cy repair charges component. For purposes of this subdivision, the words
S. 8578 357
1 "real property tax" shall not include an assessment or charge upon prop-
2 erty imposed pursuant to section 25-411 of this code. A sale of a tax
3 lien or tax liens shall include, in addition to such lien or liens that
4 have remained unpaid in whole or in part for one year, or, in the case
5 of any class one property or class two property that is a residential
6 condominium or residential cooperative, when the real property tax
7 component of such lien or liens has remained unpaid in whole or in part
8 for three years, or, in the case of any class two residential property
9 owned by a company organized pursuant to article eleven of the private
10 housing finance law that is not a residential condominium or a residen-
11 tial cooperative, when the real property tax component of such lien or
12 liens has remained unpaid in whole or in part for two years, and equals
13 or exceeds the sum of five thousand dollars, any taxes, assessments,
14 sewer rents, sewer surcharges, water rents, any other charges that are
15 made a lien subject to the provisions of this chapter, the costs of any
16 advertisements and notices given pursuant to this chapter, any other
17 charges that are due and payable, a surcharge pursuant to section 11-332
18 of this chapter, and interest and penalties thereon or such component of
19 the amount thereof as shall be determined by the commissioner of
20 finance. The commissioner of finance may promulgate rules defining
21 "abandoned" property, as such term is used in this subdivision.
22 a-1. A subsequent tax lien or tax liens on a property or any component
23 of the amount thereof may be sold by the city pursuant to this chapter,
24 provided, however, that notwithstanding any provision in this chapter to
25 the contrary, such tax lien or tax liens may be sold regardless of
26 whether such tax lien or tax liens have remained unpaid in whole or in
27 part for one year and, notwithstanding any provision in this chapter to
28 the contrary, in the case of any class one property or class two proper-
29 ty that is a residential condominium or residential cooperative or,
30 beginning January first, two thousand twelve, in the case of any class
31 two residential property owned by a company organized pursuant to arti-
32 cle eleven of the private housing finance law that is not a residential
33 condominium or a residential cooperative, such tax lien or tax liens may
34 be sold if the real property tax component of such tax lien or tax liens
35 has remained unpaid in whole or in part for one year, and provided,
36 further, however, that (i) the real property tax component of such tax
37 lien may not be sold pursuant to this subdivision on any residential
38 real property in class one that is receiving an exemption pursuant to
39 section 11-245.3 or 11-245.4 of this title, or pursuant to section four
40 hundred fifty-eight of the real property tax law with respect to real
41 property purchased with payments received as prisoner of war compen-
42 sation from the United States government, or pursuant to paragraph (b)
43 or (c) of subdivision two of section four hundred fifty-eight-a of the
44 real property tax law, or where the owner of such residential real prop-
45 erty in class one is receiving benefits in accordance with department of
46 finance memorandum 05-3, or any successor memorandum thereto, relating
47 to active duty military personnel, or where the owner of such residen-
48 tial real property in class one has been allowed a credit pursuant to
49 subsection (e) of section six hundred six of the tax law for the calen-
50 dar year in which the date of the first publication, pursuant to subdi-
51 vision a of section 11-320 of this chapter, of the notice of sale,
52 occurs or for the calendar year immediately preceding such date and (ii)
53 the sewer rents component, sewer surcharges component or water rents
54 component of such tax lien may not be sold pursuant to this subdivision
55 on any one family residential real property in class one or on any two
56 or three family residential real property in class one that is receiving
S. 8578 358
1 an exemption pursuant to section 11-245.3 or 11-245.4 of this title, or
2 pursuant to section four hundred fifty-eight of the real property tax
3 law with respect to real property purchased with payments received as
4 prisoner of war compensation from the United States government, or
5 pursuant to paragraph (b) or (c) of subdivision two of section four
6 hundred fifty-eight-a of the real property tax law, or where the owner
7 of any two or three family residential real property in class one is
8 receiving benefits in accordance with department of finance memorandum
9 05-3, or any successor memorandum thereto, relating to active duty mili-
10 tary personnel, or where the owner of any two or three family residen-
11 tial real property in class one has been allowed a credit pursuant to
12 subsection (e) of section six hundred six of the tax law for the calen-
13 dar year in which the date of the first publication, pursuant to subdi-
14 vision a of section 11-320 of this chapter, of the notice of sale,
15 occurs or for the calendar year immediately preceding such date. For
16 purposes of this subdivision, the term "subsequent tax lien or tax
17 liens" shall mean any tax lien or tax liens on property that become such
18 on or after the date of sale of any tax lien or tax liens on such prop-
19 erty that have been sold pursuant to this chapter, provided that the
20 prior tax lien or tax liens remain unpaid as of the date of the first
21 publication, pursuant to subdivision a of section 11-320 of this chap-
22 ter, of the notice of sale of the subsequent tax lien or tax liens. A
23 subsequent tax lien or tax liens on any property classified as a class
24 two property, except a class two property that is a residential condo-
25 minium or residential cooperative, or a class two residential property
26 owned by a company organized pursuant to article eleven of the private
27 housing finance law that is not a residential condominium or a residen-
28 tial cooperative, or class three property, as such classes of property
29 are defined in subdivision one of section eighteen hundred two of the
30 real property tax law, shall not be sold by the city unless such tax
31 lien or tax liens include a real property tax component as of the date
32 of the first publication, pursuant to subdivision a of section 11-320 of
33 this chapter, of the notice of sale. Notwithstanding any provision of
34 this subdivision to the contrary, any such tax lien or tax liens that
35 remain unpaid in whole or in part after such date may be sold regardless
36 of whether such tax lien or tax liens include a real property tax compo-
37 nent. A subsequent tax lien or tax liens on a property classified as a
38 class four property, as such class of property is defined in subdivision
39 one of section eighteen hundred two of the real property tax law, shall
40 not be sold by the city unless such tax lien or tax liens include a real
41 property tax component or sewer rents component or sewer surcharges
42 component or water rents component or emergency repair charges compo-
43 nent, where such emergency repair charges accrued on or after January
44 first, two thousand six and are made a lien pursuant to section 27-2144
45 of this code, as of the date of the first publication, pursuant to
46 subdivision a of section 11-320 of this chapter, of the notice of sale,
47 provided, however, that any tax lien or tax liens that remain unpaid in
48 whole or in part after such date may be sold regardless of whether such
49 tax lien or tax liens include a real property tax component, sewer rents
50 component, sewer surcharges component, water rents component or emergen-
51 cy repair charges component. For purposes of this subdivision, the words
52 "real property tax" shall not include an assessment or charge upon prop-
53 erty imposed pursuant to section 25-411 of this code. Nothing in this
54 subdivision shall be deemed to limit the rights conferred by section
55 11-332 of this chapter on the holder of a tax lien certificate with
56 respect to a subsequent tax lien.
S. 8578 359
1 a-2. In addition to any sale authorized pursuant to subdivision a or
2 subdivision a-1 of this section and notwithstanding any provision of
3 this chapter to the contrary, beginning on December first, two thousand
4 seven, the water rents, sewer rents and sewer surcharges components of
5 any tax lien on any class of real property, as such real property is
6 classified in subdivision one of section eighteen hundred two of the
7 real property tax law, may be sold by the city pursuant to this chapter,
8 where such water rents, sewer rents or sewer surcharges component of
9 such tax lien, as of the date of the first publication, pursuant to
10 subdivision a of section 11-320 of this chapter, of the notice of sale:
11 (i) shall have remained unpaid in whole or in part for one year and (ii)
12 equals or exceeds the sum of one thousand dollars or, beginning on March
13 first, two thousand eleven, in the case of any two or three family resi-
14 dential real property in class one, for one year, and equals or exceeds
15 the sum of two thousand dollars, or, beginning on January first, two
16 thousand twenty-one, in the case of any two or three family residential
17 real property in class one, for one year, and equals or exceeds the sum
18 of three thousand dollars, or, beginning on January first, two thousand
19 twelve, in the case of any class two residential property owned by a
20 company organized pursuant to article eleven of the private housing
21 finance law that is not a residential condominium or a residential coop-
22 erative, as such class of property is defined in subdivision one of
23 section eighteen hundred two of the real property tax law, for two
24 years, and equals or exceeds the sum of five thousand dollars; provided,
25 however, that such water rents, sewer rents or sewer surcharges compo-
26 nent of such tax lien may not be sold pursuant to this subdivision on
27 any one family residential real property in class one or on any two or
28 three family residential real property in class one that is receiving an
29 exemption pursuant to section 11-245.3 or 11-245.4 of this title, or
30 pursuant to section four hundred fifty-eight of the real property tax
31 law with respect to real property purchased with payments received as
32 prisoner of war compensation from the United States government, or
33 pursuant to paragraph (b) or (c) of subdivision two of section four
34 hundred fifty-eight-a of the real property tax law, or where the owner
35 of any two or three family residential real property in class one is
36 receiving benefits in accordance with department of finance memorandum
37 05-3, or any successor memorandum thereto, relating to active duty mili-
38 tary personnel, or where the owner of any two or three family residen-
39 tial real property in class one has been allowed a credit pursuant to
40 subsection (e) of section six hundred six of the tax law for the calen-
41 dar year in which the date of the first publication, pursuant to subdi-
42 vision a of section 11-320 of this chapter, of the notice of sale,
43 occurs or for the calendar year immediately preceding such date. After
44 such sale, any such water rents, sewer rents or sewer surcharges compo-
45 nent of such tax lien may be transferred in the manner provided by this
46 chapter.
47 a-3. In addition to any sale authorized pursuant to subdivision a or
48 subdivision a-1 of this section and notwithstanding any provision of
49 this chapter to the contrary, beginning on December first, two thousand
50 seven, a subsequent tax lien on any class of real property, as such real
51 property is classified in subdivision one of section eighteen hundred
52 two of the real property tax law, may be sold by the city pursuant to
53 this chapter, regardless of whether such subsequent tax lien, or any
54 component of the amount thereof, shall have remained unpaid in whole or
55 in part for one year, and regardless of whether such subsequent tax
56 lien, or any component of the amount thereof, equals or exceeds the sum
S. 8578 360
1 of one thousand dollars or beginning on March first, two thousand elev-
2 en, in the case of any two or three family residential real property in
3 class one, a subsequent tax lien on such property may be sold by the
4 city pursuant to this chapter, regardless of whether such subsequent tax
5 lien, or any component of the amount thereof, shall have remained unpaid
6 in whole or in part for one year, and regardless of whether such subse-
7 quent tax lien, or any component of the amount thereof, equals or
8 exceeds the sum of two thousand dollars, or, beginning on January first,
9 two thousand twenty-one, in the case of any two or three family residen-
10 tial real property in class one, a subsequent tax lien on such property
11 may be sold by the city pursuant to this chapter, regardless of whether
12 such subsequent tax lien, or any component of the amount thereof, shall
13 have remained unpaid in whole or in part for one year, and regardless of
14 whether such subsequent tax lien, or any component of the amount there-
15 of, equals or exceeds the sum of three thousand dollars, or, beginning
16 on January first, two thousand twelve, in the case of any class two
17 residential property owned by a company organized pursuant to article
18 eleven of the private housing finance law that is not a residential
19 condominium or a residential cooperative, as such class of property is
20 defined in subdivision one of section eighteen hundred two of the real
21 property tax law, a subsequent tax lien on such property may be sold by
22 the city pursuant to this chapter, regardless of whether such subsequent
23 tax lien, or any component of the amount thereof, shall have remained
24 unpaid in whole or in part for two years, and regardless of whether such
25 subsequent tax lien, or any component of the amount thereof, equals or
26 exceeds the sum of five thousand dollars; provided, however, that such
27 subsequent tax lien may not be sold pursuant to this subdivision on any
28 one family residential real property in class one or on any two or three
29 family residential real property in class one that is receiving an
30 exemption pursuant to section 11-245.3 or 11-245.4 of this title, or
31 pursuant to section four hundred fifty-eight of the real property tax
32 law with respect to real property purchased with payments received as
33 prisoner of war compensation from the United States government, or
34 pursuant to paragraph (b) or (c) of subdivision two of section four
35 hundred fifty-eight-a of the real property tax law, or where the owner
36 of any two or three family residential real property in class one is
37 receiving benefits in accordance with department of finance memorandum
38 05-3, or any successor memorandum thereto, relating to active duty mili-
39 tary personnel, or where the owner of any two or three family residen-
40 tial real property in class one has been allowed a credit pursuant to
41 subsection (e) of section six hundred six of the tax law for the calen-
42 dar year in which the date of the first publication, pursuant to subdi-
43 vision a of section 11-320 of this chapter, of the notice of sale,
44 occurs or for the calendar year immediately preceding such date. After
45 such sale, any such subsequent tax lien, or any component of the amount
46 thereof, may be transferred in the manner provided by this chapter. For
47 purposes of this subdivision, the term "subsequent tax lien" shall mean
48 the water rents, sewer rents or sewer surcharges component of any tax
49 lien on property that becomes such on or after the date of sale of any
50 water rents, sewer rents or sewer surcharges component of any tax lien
51 on such property that has been sold pursuant to this chapter, provided
52 that the prior tax lien remains unpaid as of the date of the first
53 publication, pursuant to subdivision a of section 11-320 of this chap-
54 ter, of the notice of sale of the subsequent tax lien. Nothing in this
55 subdivision shall be deemed to limit the rights conferred by section
S. 8578 361
1 11-332 of this chapter on the holder of a tax lien certificate with
2 respect to a subsequent tax lien.
3 a-4. In addition to any sale authorized pursuant to subdivision a,
4 a-1, a-2 or a-3 of this section and notwithstanding any provision of
5 this chapter to the contrary, beginning on March first, two thousand
6 eleven, the emergency repair charges component or alternative enforce-
7 ment expenses and fees component, where such emergency repair charges
8 accrued on or after January first, two thousand six and are made a lien
9 pursuant to section 27-2144 of this code, or where such alternative
10 enforcement expenses and fees are made a lien pursuant to section
11 27-2153 of this code, of any tax lien on any class of real property, as
12 such real property is defined in subdivision one of section eighteen
13 hundred two of the real property tax law, may be sold by the city pursu-
14 ant to this chapter, where such emergency repair charges component or
15 alternative enforcement expenses and fees component of such tax lien, as
16 of the date of the first publication, pursuant to subdivision a of
17 section 11-320 of this chapter, of the notice of sale: (i) shall have
18 remained unpaid in whole or in part for one year and (ii) equals or
19 exceeds the sum of one thousand dollars or, beginning on January first,
20 two thousand twelve, in the case of any class two residential property
21 owned by a company organized pursuant to article eleven of the private
22 housing finance law that is not a residential condominium or a residen-
23 tial cooperative, as such class of property is defined in subdivision
24 one of section eighteen hundred two of the real property tax law, for
25 two years, and equals or exceeds the sum of five thousand dollars;
26 provided, however, that such emergency repair charges component or
27 alternative enforcement expenses and fees component of such tax lien may
28 only be sold pursuant to this subdivision on any one, two or three fami-
29 ly residential real property in class one, where such one, two or three
30 family residential property in class one is not the primary residence of
31 the owner. After such sale, any such emergency repair charges component
32 or alternative enforcement expenses and fees component of such tax lien
33 may be transferred in the manner provided by this chapter.
34 a-5. In addition to any sale authorized pursuant to subdivision a,
35 a-1, a-2 or a-3 of this section and notwithstanding any provision of
36 this chapter to the contrary, beginning on March first, two thousand
37 eleven, a subsequent tax lien on any class of real property, or begin-
38 ning on January first, two thousand twelve in the case of any class two
39 residential property owned by a company organized pursuant to article
40 eleven of the private housing finance law that is not a residential
41 condominium or a residential cooperative, a subsequent tax lien on such
42 property, may be sold by the city pursuant to this chapter, regardless
43 of the length of time such subsequent tax lien, or any component of the
44 amount thereof, shall have remained unpaid, and regardless of the amount
45 of such subsequent tax lien. After such sale, any such subsequent tax
46 lien, or any component of the amount thereof, may be transferred in the
47 manner provided by this chapter. For purposes of this subdivision, the
48 term "subsequent tax lien" shall mean the emergency repair charges
49 component or alternative enforcement expenses and fees component, where
50 such emergency repair charges accrued on or after January first, two
51 thousand six and are made a lien pursuant to section 27-2144 of this
52 code, or where such alternative enforcement expenses and fees are made a
53 lien pursuant to section 27-2153 of this code, of any tax lien on prop-
54 erty that becomes such on or after the date of sale of any emergency
55 repair charges component or alternative enforcement expenses and fees
56 component, of any tax lien on such property that has been sold pursuant
S. 8578 362
1 to this chapter, provided that the prior tax lien remains unpaid as of
2 the date of the first publication, pursuant to subdivision a of section
3 11-320 of this chapter, of the notice of sale of the subsequent tax
4 lien. Nothing in this subdivision shall be deemed to limit the rights
5 conferred by section 11-332 of this chapter on the holder of a tax lien
6 certificate with respect to a subsequent tax lien.
7 a-6. Notwithstanding any provision of this chapter to the contrary,
8 beginning on September first, two thousand seventeen, a lien that
9 includes civil penalties for a violation of section 28-201.1 of this
10 code where such civil penalties accrued on or after July first, two
11 thousand seventeen, and became a lien pursuant to section 28-204.6.6 of
12 this code, may be sold by the city pursuant to this chapter, where such
13 civil penalties component of such lien, as of the date of the first
14 publication, pursuant to subdivision a of section 11-320 of this chap-
15 ter, of the notice of sale (i) shall have remained unpaid in whole or in
16 part for one year or more and (ii) equals or exceeds the sum of one
17 thousand dollars. After such sale, any such civil penalties component of
18 such lien may be transferred in the manner provided by this chapter.
19 b. The commissioner of finance, on behalf of the city, may sell tax
20 liens, either individually, in combinations, or in the aggregate, pursu-
21 ant to the procedures provided herein. The commissioner of finance shall
22 establish the terms and conditions of a sale of a tax lien or tax liens.
23 1. (i) The commissioner of finance may, in his or her discretion, sell
24 a tax lien or tax liens through a competitive sale. In addition to the
25 advertisement and notice required to be provided pursuant to section
26 11-320 of this chapter, the commissioner of finance or his or her desig-
27 nee shall cause to be published a notice of intention to sell a tax lien
28 or tax liens through a competitive sale, which notice shall include the
29 terms and conditions for such sale, the criteria by which bids shall be
30 evaluated, and a request for any other information or documents that the
31 commissioner of finance may require. Such notice shall be published in
32 one newspaper of general circulation in the city, not less than fifteen
33 days prior to the date designated by the commissioner for the submission
34 of bids.
35 (ii) The commissioner of finance may, in his or her discretion, estab-
36 lish criteria for the eligibility of bidders pursuant to section
37 11-321.1 of this chapter.
38 (iii) The commissioner of finance may reject any or all bids, or may
39 accept any combination of bids in a competitive sale.
40 2. (i) The commissioner of finance may, in his or her discretion, sell
41 a tax lien or tax liens through a negotiated sale. In addition to the
42 advertisement and notice required to be provided pursuant to section
43 11-320 of this chapter, the commissioner of finance or his or her desig-
44 nee shall cause to be published a notice of intention to sell a tax lien
45 or tax liens through a negotiated sale, which notice shall advise that a
46 request for statements of interest is available at the office of the
47 department of finance, and which may require the submission of any
48 information or documents that the commissioner deems appropriate,
49 provided, however, that if the negotiated sale is to a trust or other
50 entity created by the city or in which the city has an ownership or
51 residual interest, then the requirement that the notice advise that a
52 request for statements of interest is available at the office of the
53 department of finance shall not apply. Such notice shall be published in
54 one newspaper of general circulation in the city, not less than fifteen
55 days prior to the date designated by the commissioner for the receipt of
56 statements of interest, or if the negotiated sale is to such trust or
S. 8578 363
1 other entity, then such notice shall be published not less than fifteen
2 days prior to the date of sale. For purposes of this subparagraph, the
3 words "date of sale" shall have the same meaning provided in subdivision
4 e of section 11-320 of this chapter.
5 (ii) The commissioner of finance may engage in a negotiated sale in
6 accordance with criteria to be established pursuant to section 11-321.1
7 of this chapter.
8 (iii) The commissioner of finance may execute a purchase and sale
9 agreement and other necessary agreements with a designated purchaser or
10 purchasers to complete a negotiated sale.
11 3. The commissioner of finance may establish a minimum price for the
12 sale of tax liens that may be at a discount from or premium to the lien
13 amount. Notwithstanding the preceding sentence, the commissioner of
14 finance may not establish a minimum price for the sale of an individual
15 tax lien that is at a discount from the lien amount. The commissioner of
16 finance shall sell such tax liens at a purchase price that, in the
17 determination of such commissioner, is in the best interests of the
18 city. The commissioner of finance, in his or her discretion, may accept
19 cash or cash equivalent in immediately available funds, or other consid-
20 eration acceptable to the commissioner, or any combination thereof in
21 payment for a tax lien or tax liens.
22 4. The amount of a tax lien that is sold pursuant to this chapter
23 shall be the unpaid amount of the lien as of the date of sale, including
24 any interest and penalties thereon, any taxes, assessments, sewer rents,
25 sewer surcharges, water rents, any other charges that are made a lien
26 subject to the provisions of this chapter, the costs of any advertise-
27 ments and notices given pursuant to this chapter, any other charges that
28 are due and payable, any surcharge pursuant to section 11-332 of this
29 chapter, and interest and penalties thereon, or such component of the
30 amount thereof as shall be determined by the commissioner of finance,
31 notwithstanding the amount paid for purchase of the tax lien or compo-
32 nent of the amount thereof. For purposes of this paragraph, the words
33 "date of sale" shall have the same meaning provided in subdivision y of
34 section 11-320 of this chapter.
35 5. (i) The commissioner of finance may, subsequent to the offer for
36 sale of any tax lien or tax liens and the failure to complete such sale,
37 offer such tax lien or tax liens for sale again to any other person or
38 persons who satisfied the terms and conditions of the sale without
39 providing any additional advertisements or notices pursuant to this
40 chapter.
41 (ii) Notwithstanding subparagraph (i) of this paragraph, any tax lien
42 that was noticed for sale pursuant to this chapter, but was not sold on
43 the original date of sale, may be sold without any additional advertise-
44 ments or notices pursuant to this chapter if the subsequent date of sale
45 is within six months of the second publication, pursuant to subdivision
46 a of section 11-320 of this chapter, of the notice of the original date
47 of sale. If the subsequent date of sale is more than six months after
48 the second publication, pursuant to subdivision a of section 11-320 of
49 this chapter, of the notice of the original date of sale, then the
50 commissioner of finance, or his or her designee, shall provide notice of
51 the subsequent date of sale pursuant to subdivision b of section 11-320
52 of this chapter. No other additional advertisements or notices shall be
53 necessary prior to the date of sale.
54 6. The rate of interest on any tax lien certificate shall be the rate
55 adopted for nonpayment of taxes on real property, pursuant to subdivi-
S. 8578 364
1 sion (e) of section 11-224.1 of this title, that is in effect on January
2 first of the year in which the tax lien is sold.
3 7. It is the intent of the city that a sale of a tax lien or tax liens
4 pursuant to this chapter shall be a sale and not a borrowing.
5 8. Whenever any tax lien purchased at a tax lien sale is found to be
6 invalid, void or defective in whole or in part, or not to conform to any
7 representation or warranty with respect thereto, made by the commission-
8 er of finance in connection with the sale thereof, by judgment or decree
9 of a court of competent jurisdiction or by determination of the commis-
10 sioner of finance, the commissioner of finance may, in his or her
11 discretion, substitute for such tax lien or portion thereof another tax
12 lien that has a value equivalent to the value of the tax lien or portion
13 thereof found to be invalid, void, defective, or not to so conform, or
14 may refund such value of the tax lien or portion thereof found to be
15 invalid, void, defective, or not to so conform, or may use a combination
16 of substitution and refund. No other remedy shall be available to a
17 purchaser of a tax lien which is found to be invalid, void, defective,
18 or not to conform to a representation or warranty with respect thereto
19 made by the commissioner of finance in connection with the sale thereof,
20 in whole or in part. Whenever a tax lien of such equivalent value is to
21 be substituted for a tax lien that has been found invalid, void, defec-
22 tive, or not to so conform, in whole or in part, pursuant to this
23 section, the commissioner of finance or his or her designee shall
24 provide mailed notice of the intention to substitute such lien of such
25 equivalent value to any person required to be notified pursuant to
26 section 11-320(b) of this chapter.
27 9. The commissioner of finance may establish requirements for a
28 purchaser of a tax lien to provide any information and documents that
29 the commissioner of finance deems necessary, including information
30 concerning the collection and enforcement of tax liens. The commission-
31 er of finance shall require the purchaser of a tax lien to provide the
32 owner of property on which a tax lien has been sold pursuant to this
33 chapter a detailed itemization of taxes, interest, surcharges, and fees
34 charged to such owner on all tax lien statements of amounts due or bill
35 of charges. Such fees shall be bona fide, reasonable and, in the case of
36 attorneys' fees, customary.
37 10. (i) On and after January first, two thousand twelve, no tax lien
38 shall be sold pursuant to this chapter on any class two residential
39 property owned by a company organized pursuant to article eleven of the
40 private housing finance law that is a residential condominium or resi-
41 dential cooperative. If, notwithstanding the foregoing sentence, any
42 such tax lien is sold in error pursuant to this chapter on and after
43 January first, two thousand twelve on such property, then the provisions
44 of paragraph eight of this subdivision shall apply to such sale, includ-
45 ing the authority of the commissioner of finance to substitute for such
46 tax lien another tax lien that has a value equivalent to the value of
47 such tax lien or to refund the value of such tax lien. For the purposes
48 of this paragraph, property owned by such company shall be limited to
49 property owned for the purpose, as set forth in section five hundred
50 seventy-one of the private housing finance law, of providing housing for
51 families and persons of low income.
52 (ii) No later than May first, two thousand eleven, the commissioner of
53 finance, in consultation with the commissioner of housing preservation
54 and development, shall notify by mail any class two residential property
55 owned by a company organized pursuant to article eleven of the private
56 housing finance law that is not a residential condominium or residential
S. 8578 365
1 cooperative, of the authority of the commissioner of finance to sell the
2 tax liens on such property. Such notification shall include information
3 relating to the lien sale process, including, but not limited to,
4 actions homeowners can take if a lien is sold on such property; the type
5 of debt that can be sold in a lien sale; a timeline of statutory notifi-
6 cations required pursuant to section 11-320 of this chapter; a clear,
7 concise explanation of the consequences of the sale of a tax lien; the
8 telephone number and electronic mail address of the employee or employ-
9 ees designated pursuant to subdivision f of section 11-320 of this chap-
10 ter; a conspicuous statement that the owner of the property may enter
11 into a payment plan for exclusion from the tax lien sale; and credits
12 and property tax exemptions that may exclude a property from a tax lien
13 sale and any other credit or residential real property tax exemption
14 information, which, in the discretion of the commissioner of finance,
15 should be included in such notification.
16 Upon such property owner's written request, or verbal request to 311
17 or any employee designated pursuant to subdivision f of section 11-320
18 of this chapter, a Chinese, Korean, Russian or Spanish translation of
19 such notice shall be provided promptly to such property owner.
20 11. No later than the first of September in the year next succeeding
21 the effective date of this section, the appropriate agency shall promul-
22 gate rules identifying or describing any existing procedures governing
23 challenges to the validity of any real property tax, sewer rent, sewer
24 surcharge, water rent, emergency repair charge or alternative enforce-
25 ment expense or fee.
26 12. On or after January first, two thousand fifteen and before January
27 first, two thousand seventeen, no tax lien shall be sold pursuant to
28 this chapter on the following properties: (i) properties enrolled in the
29 city's Build It Back Program; and (ii) properties defined as "eligible
30 real property" pursuant to subdivision three of section four hundred
31 sixty-seven-g of the real property tax law. If, notwithstanding the
32 foregoing sentence, any such tax lien is sold in error pursuant to this
33 chapter during such time period on properties described in subparagraph
34 (i) or (ii) of this paragraph, then the provisions of paragraph eight of
35 this subdivision shall apply to such sale, including the authority of
36 the commissioner of finance to substitute for such tax lien another tax
37 lien that has a value equivalent to the value of such tax lien or to
38 refund the value of such lien.
39 13. Notwithstanding any provision of this chapter to the contrary, no
40 tax lien shall be sold pursuant to this chapter on any of the following
41 properties: (i) any real property for which the owner in good faith has
42 submitted an application that is pending with the department of finance
43 for a real property tax exemption pursuant to section four hundred twen-
44 ty-a, four hundred twenty-b, four hundred forty-six, or four hundred
45 sixty-two of the real property tax law; and (ii) any real property for
46 which the owner has in good faith filed an appeal with the tax commis-
47 sion of a denial of any such application and such appeal is pending.
48 There shall be a rebuttable presumption that an application or an appeal
49 referenced in the preceding sentence was not submitted in good faith
50 where, within the twenty-four months preceding the submission of such
51 application or such appeal, the period for the filing of an appeal of a
52 denial by the department of finance of a previous application for a real
53 property tax exemption pursuant to section four hundred twenty-a, four
54 hundred twenty-b, four hundred forty-six, or four hundred sixty-two of
55 the real property tax law has expired.
S. 8578 366
1 § 11-320 Notice of sale to be advertised and mailed. a. 1. The tax
2 lien on property in the city shall not be sold pursuant to section
3 11-319 of this chapter unless notice of such sale as provided herein has
4 been published twice, the first publication to be in a newspaper of
5 general circulation in the city, not less than ninety days preceding the
6 date of the sale, and the second publication to be in a publication
7 designated by the commissioner of finance, not less than ten days
8 preceding the date of the sale. Such publication shall include a
9 description by block and lot or by such other identification as the
10 commissioner of finance may deem appropriate, of the property upon which
11 the tax lien exists that may be included in the sale, and a statement
12 that a list of the tax liens that may be included in the sale is avail-
13 able for inspection in the office of the city register and the office of
14 the county clerk. The commissioner of finance shall file such list in
15 the office of the city register and the office of the county clerk not
16 less than ninety days prior to the date of sale.
17 2. Not less than ninety days preceding the date of the sale, the
18 commissioner of finance shall post online, to the extent such informa-
19 tion is available, the borough, block and lot of any property on which a
20 lien has been or will be noticed for sale in accordance with paragraph
21 one of this subdivision and that, in one or more of the five fiscal
22 years preceding the date of the sale, was in receipt of a real property
23 tax exemption pursuant to section four hundred twenty-a, four hundred
24 twenty-b, four hundred forty-six or four hundred sixty-two of the real
25 property tax law and, in addition, shall post online, to the extent such
26 information is available, the borough, block and lot of any vacant land
27 classified as class one or class four pursuant to section eighteen
28 hundred two of the real property tax law on which a lien has been or
29 will be noticed for sale in accordance with paragraph one of this subdi-
30 vision. Any failure to comply with this paragraph shall not affect the
31 validity of any sale of tax liens pursuant to this chapter.
32 b. 1. A tax lien shall not be sold unless the commissioner of finance,
33 or his or her designee, notifies the owner of record at the address of
34 record and any other person who has registered pursuant to section
35 11-309 of this chapter, or pursuant to section 11-416 or 11-417 of this
36 title, by first class mail, of the intention to sell the tax lien. If no
37 such registrations have been filed then such commissioner, or his or her
38 designee, shall notify the person whose name and address, if any,
39 appears in the latest annual record of assessed valuations, by first
40 class mail, of the intention to sell the tax lien. Such mailed notice
41 shall include a description of the property by block and lot and such
42 other identifying information as the commissioner of finance may deem
43 appropriate, the amount of the tax lien, including all taxes, assess-
44 ments, sewer rents, sewer surcharges, water rents, any other charges
45 that are made a lien subject to the provisions of this chapter, as well
46 as an estimate of the costs of any advertisements and notices given
47 pursuant to this chapter, any other charges that are due and payable on
48 the date specified in such publication, a surcharge pursuant to section
49 11-332 of this chapter if the tax lien is sold, and interest and penal-
50 ties thereon, and shall be mailed to such owner and such other persons
51 four times: not less than ninety, sixty, thirty and ten days prior to
52 the date of sale. Such notice shall state that if default continues to
53 be made in payment of the amounts due on such property, the tax lien on
54 such property shall be sold as provided in section 11-319 of this chap-
55 ter. If, notwithstanding such notice, the owner shall continue to refuse
56 or neglect to pay the amounts due on such property, the commissioner of
S. 8578 367
1 finance may sell the tax lien on such property as provided in section
2 11-319 of this chapter.
3 2. (i) Such notices shall also include, with respect to any property
4 owner in class one or class two, as such classes of property are defined
5 in subdivision one of section eighteen hundred two of the real property
6 tax law, an exemption eligibility checklist. The exemption eligibility
7 checklist shall also be posted on the website of the department of
8 finance no later than the first business day after March fifteenth of
9 every year prior to the date of sale, and shall continue to be posted on
10 such website until ten days prior to the date of sale. Within ten busi-
11 ness days of receipt of a completed exemption eligibility checklist from
12 such property owner, provided that such receipt occurs prior to the date
13 of sale of any tax lien or tax liens on his or her property, the depart-
14 ment of finance shall review such checklist to determine, based on the
15 information provided by the property owner, whether such property owner
16 could be eligible for any exemption, credit or other benefit that would
17 entitle them to be excluded from a tax lien sale and, if the department
18 determines that such property owner could be eligible for any such
19 exemption, credit or other benefit, shall mail such property owner an
20 application for the appropriate exemption, credit or other benefit. If,
21 within twenty business days of the date the department mailed such
22 application, the department of finance has not received a completed
23 application from such property owner, such department shall mail such
24 property owner a second application, and shall telephone the property
25 owner, if the property owner has included his or her telephone number on
26 the exemption eligibility checklist.
27 (ii) Any such property owner who returns to the department of finance
28 a completed exemption eligibility checklist prior to the date of sale of
29 any tax lien or tax liens on his or her property and who subsequently
30 submits a completed application for the appropriate exemption, credit or
31 other benefit either prior to, on or up to ninety days after such sale,
32 shall have his or her application reviewed by the department of finance.
33 If, prior to the date of sale, the department of finance determines that
34 such property owner is qualified for such exemption, credit or other
35 benefit or will be qualified as of the date of sale, then the tax lien
36 or tax liens on his or her property shall not be sold on such date. If,
37 on or after the date of sale, the department of finance determines that
38 such property owner is or was qualified for such exemption, credit or
39 other benefit as of the date of sale, then any tax lien or tax liens on
40 his or her property that were sold shall be deemed defective.
41 (iii) Not later than thirty days prior to such date of sale, the
42 department of finance shall submit to the council a list, disaggregated
43 by council district, of all properties for which property owners
44 returned a completed eligibility checklist to the department of finance
45 at least thirty-five days prior to the date of sale, but for which prop-
46 erty owners have not yet submitted a completed application for the
47 appropriate exemption, credit or other benefit.
48 (iv) Not later than thirty days after such date of sale, the depart-
49 ment of finance shall submit to the council a list, disaggregated by
50 council district, of all properties for which property owners returned a
51 completed eligibility checklist to the department of finance prior to
52 the date of sale, but for which property owners have not yet submitted a
53 completed application for the appropriate exemption, credit or other
54 benefit.
55 (v) Upon the written or verbal request of such property owner, the
56 department of finance shall provide prompt assistance to such property
S. 8578 368
1 owner in completing an application for the appropriate exemption, credit
2 or other benefit.
3 2-a. If, prior to the date of sale, the department of finance confirms
4 that a property is the subject of (i) a judicial proceeding or (ii) an
5 investigation or a prosecution by any agency or office of the United
6 States or any state or subdivision thereof with regard to the ownership
7 of such property arising from the fraudulent transmittal of a deed
8 relating to such property, such department shall remove such property
9 from the sale, provided that the owner of such property has provided an
10 affidavit to such department and any such other documentation required
11 by such department to establish that such property is the subject of
12 such a proceeding, investigation or prosecution. Any such removal shall
13 relate only to the sale of a tax lien or tax liens for which the owner
14 has received notice pursuant to paragraph one of subdivision b of this
15 section. Failure by the department of finance to remove such property
16 shall not affect the validity of any sale of tax liens pursuant to this
17 chapter.
18 3. The notice provided not less than ninety days prior to the date of
19 sale shall also include information relating to the lien sale process,
20 including, but not limited to, actions homeowners can take if a lien is
21 sold on such property; the type of debt that can be sold in a lien sale;
22 a timeline of statutory notifications required pursuant to this section;
23 a clear, concise explanation of the consequences of the sale of a tax
24 lien; the telephone number and electronic mail address of the employee
25 or employees designated pursuant to subdivision f of this section; a
26 conspicuous statement that the owner of the property may enter into a
27 payment plan for exclusion from the tax lien sale; and credits and prop-
28 erty tax exemptions that may exclude certain class one real property
29 from a tax lien sale. Such notice shall also include information on the
30 following real property tax exemptions, credits or other benefits:
31 (i) the senior citizen homeowner exemption pursuant to section
32 11-245.3 of this title;
33 (ii) the exemption for persons with disabilities pursuant to section
34 11-245.4 of this title;
35 (iii) the exemption for veterans pursuant to section four hundred
36 fifty-eight of the real property tax law, with respect to real property
37 purchased with payments received as prisoner of war compensation from
38 the United States government;
39 (iv) the exemption for veterans pursuant to paragraph (b) or (c) of
40 subdivision two of section four hundred fifty-eight-a of the real prop-
41 erty tax law;
42 (v) the state circuit breaker income tax credit pursuant to subsection
43 (e) of section six hundred six of the tax law; and
44 (vi) the active duty military personnel benefit pursuant to department
45 of finance memorandum 05-3, or any successor memorandum thereto.
46 Upon such property owner's written request, or verbal request to 311
47 or any employee designated pursuant to subdivision f of this section, a
48 Chinese, Korean, Russian or Spanish translation of such notice shall be
49 provided promptly to such property owner.
50 4. Such notice shall also include, with respect to a property that was
51 in receipt of a real property tax exemption pursuant to section four
52 hundred twenty-a, four hundred twenty-b, four hundred forty-six, or four
53 hundred sixty-two of the real property tax law in one or more of the
54 three fiscal years preceding the date of the notice provided not less
55 than ninety days prior to the date of sale, or with respect to a proper-
56 ty in class four, as such class of property is defined in subdivision
S. 8578 369
1 one of section eighteen hundred two of the real property tax law, infor-
2 mation relating to the initial application and renewal process for such
3 property tax exemptions, and other actions available to the owner of
4 such property in the event such property is noticed for sale pursuant to
5 this subdivision, including, if available, an adjustment or cancellation
6 of back taxes. Upon request of the owner of such property, a translation
7 of such notice in any of the top ten languages most commonly spoken
8 within the city as determined by the department of city planning shall
9 be provided to such owner.
10 5. The department of finance and the department of environmental
11 protection shall, to the extent practicable, contact by telephone or
12 electronic mail any person who (i) has registered their telephone number
13 or electronic mail address with such departments and (ii) has received
14 the ninety-day notice described in paragraph one of this subdivision.
15 Any such contact shall be made within a time period reasonably proximate
16 to the mailing of such notice, shall inform such person of the intention
17 to sell a tax lien and shall provide such other information as the
18 respective commissioner deems appropriate, which may include, but need
19 not be limited to, the telephone numbers and electronic mail addresses
20 of the employees designated pursuant to subdivision f of this section.
21 The department of finance shall contact by electronic mail any person
22 who has registered pursuant to subdivision a of section 11-245.8 of this
23 title to receive information about the outreach sessions described in
24 subdivision j of this section and provide such information within a time
25 period reasonably proximate to the scheduled outreach session. Failure
26 by the department of finance or the department of environmental
27 protection to contact any such person by telephone or electronic mail
28 shall not affect the validity of any sale of tax liens pursuant to this
29 chapter.
30 c. Such notices shall advise the owner of such property of his or her
31 continued obligation to pay the amounts due on such property. No other
32 notices or demands shall be required to be made to the owner of such
33 property to authorize the sale of a tax lien or tax liens on such prop-
34 erty pursuant to section 11-319 of this chapter.
35 c-1. Where a tax lien on property in the city has been noticed for
36 sale pursuant to subdivision b of this section and such lien, prior to
37 the date of sale, has been paid or is otherwise determined by the
38 commissioner of finance not to be eligible to be sold, such commissioner
39 shall promptly provide written notification to the owner of such proper-
40 ty that such lien will not be or was not included in such sale and the
41 reason therefor.
42 d. 1. The commissioner of finance or his or her designee shall, within
43 ninety days after the delivery of the tax lien certificate, notify any
44 person who was required to be notified of such sale pursuant to subdivi-
45 sion (b) of section 11-320 of this chapter, by first class mail, that
46 such sale has occurred. Such notice shall state the date of the sale of
47 the tax lien, the name and address of the purchaser of the tax lien, the
48 amount of such lien, a description of the property by block and lot and
49 such other identifying information as the commissioner of finance or his
50 or her designee shall deem appropriate, and the terms and conditions of
51 the tax lien certificate, including the right to satisfy the lien within
52 the time periods specified in this chapter. Such notice shall also
53 include the telephone number and electronic mail address of the employee
54 or employees designated pursuant to subdivision f of this section.
55 2. Any written communication from the purchaser of the tax lien or
56 liens to an owner of property, on which a tax lien has been sold pursu-
S. 8578 370
1 ant to the provisions of this chapter, shall include the following
2 information:
3 (i) an explanation of the roles of the purchaser of the tax lien and
4 the employee or employees designated pursuant to subdivision f of this
5 section;
6 (ii) the names and contact information, including the telephone
7 number, electronic mail and mailing addresses of such persons; and
8 (iii) a statement informing such owner that he or she may be eligible
9 to enter into a forbearance agreement with the purchaser of such tax
10 lien.
11 3. The requirement to send such written communication shall be subject
12 to federal, state and local debt collection laws.
13 4. Failure to provide notice pursuant to this subdivision shall not
14 affect the validity of any sale of a tax lien or tax liens pursuant to
15 this chapter.
16 e. The words "date of sale" when used in this section shall mean:
17 (1) for a negotiated sale, the date of signing of the tax lien
18 purchase agreement, and (2) for a competitive sale, the date designated
19 by the commissioner of finance for the submission of bids.
20 f. The commissioner of finance shall designate an employee of the
21 department to respond to inquiries from owners of property for which a
22 tax lien has been sold or noticed for sale pursuant to subdivision a of
23 this section and shall designate an employee of the department to
24 respond to inquiries from owners sixty-five years of age or older of
25 property for which a tax lien has been sold or noticed for sale pursuant
26 to subdivision a of this section. The commissioner of environmental
27 protection shall designate at least one employee of the department of
28 environmental protection to respond to inquiries from owners of property
29 for which a tax lien containing a water rents, sewer rents or sewer
30 surcharges component has been sold or noticed for sale pursuant to
31 subdivision a of this section. The telephone numbers and electronic mail
32 addresses of employees designated pursuant to this subdivision shall be
33 posted online and shall be included on all publications and notices
34 required by subdivisions a and b of this section. Failure to include
35 such numbers and addresses on all such publications and notices shall
36 not affect the validity of any sale of tax liens pursuant to this chap-
37 ter.
38 g. No later than one hundred twenty days after the tax lien sale, the
39 commissioner of finance shall submit to the council a list of all prop-
40 erties, identified by block and lot, noticed for sale pursuant to subdi-
41 vision b of this section. Such list shall also include a description of
42 the disposition of such properties that shall include, but not be limit-
43 ed to, whether an owner entered into a payment plan with the city pursu-
44 ant to section 11-322 or 11-322.1 of this chapter, whether an owner
45 satisfied the tax lien or liens, whether ownership of the property was
46 transferred, provided that such information is available to the city, or
47 whether the property was distressed, as defined in subdivision four of
48 section 11-401 of this title, or removed from the sale pursuant to the
49 discretion of the commissioner of housing preservation and development.
50 h. 1. On a quarterly basis, a purchaser of tax liens shall provide to
51 the council a list of all properties on which tax liens have been sold
52 where, subsequent to such sale, there has been a transfer of ownership
53 of the property, provided that a purchaser of tax liens has knowledge of
54 such transfers, for the following groups:
55 (i) all properties on which liens for emergency repair charges or
56 alternative enforcement expenses and fees have been sold to such
S. 8578 371
1 purchaser pursuant to subdivision a-4 of section 11-319 of this chapter;
2 and
3 (ii) all class two residential property owned by a company organized
4 pursuant to article eleven of the private housing finance law that is
5 not a residential condominium or a residential cooperative on which any
6 tax lien has been sold pursuant to subdivision a, a-2 or a-4 of section
7 11-319 of this chapter.
8 2. When available, a purchaser of tax liens shall include the names
9 and contact information of the new owners of record of such properties.
10 i. On a quarterly basis, a purchaser of tax liens shall provide to the
11 council a property status report. For each property, such report shall
12 include: (1) information about such property, including property tax
13 class; property type; description of the tax lien or tax liens that have
14 been sold to such purchaser on such property pursuant to this chapter,
15 including the amount of the tax lien or tax liens, the costs of any
16 advertisements and notices given pursuant to this chapter; the amount of
17 the surcharge pursuant to section 11-332 of this chapter; and the amount
18 of interest and penalties thereon; and (2) the status of the tax lien or
19 tax liens, including foreclosure information, if applicable; whether the
20 property owner entered into an installment agreement; whether the prop-
21 erty owner is current on such installment agreement; and whether the tax
22 lien or tax liens on such property have been deemed defective, and, if
23 so, the reason any such lien or liens were deemed defective. Each prop-
24 erty listed in the report shall be identified by block and lot.
25 j. (1) At the request of a council member, the commissioner of
26 finance, in consultation with the commissioner of housing preservation
27 and development and the commissioner of environmental protection, may
28 conduct outreach sessions in the district of such council member,
29 provided, however, that, the commissioner of finance shall conduct such
30 outreach sessions in the ten council districts with the greatest number
31 of properties for which a notice of intention to sell a tax lien has
32 been mailed ninety days prior to the date of sale pursuant to paragraph
33 one of subdivision b of this section, and provided, further, however,
34 that, such commissioner shall conduct additional outreach sessions in
35 the five council districts with the greatest number of properties for
36 which a notice of intention to sell a tax lien has been mailed ninety
37 days prior to the date of sale pursuant to such paragraph. To the extent
38 practicable, the commissioner of finance shall schedule the outreach
39 sessions in the five council districts described in the preceding
40 sentence such that one occurs prior to the mailing of the notice of
41 intention to sell a tax lien that is required to be mailed thirty days
42 prior to the date of sale pursuant to paragraph one of subdivision b of
43 this section and one occurs subsequent to such mailing. The scope of
44 such outreach sessions shall include, but need not be limited to, (i)
45 actions property owners can take if a lien is sold on such property;
46 (ii) the type of tax lien or tax liens that can be sold in a tax lien
47 sale; (iii) installment agreement information, including informing
48 attendees in such outreach sessions of their option to enter into an
49 installment agreement for exclusion from the tax lien sale with no down
50 payment, with options for income-based installment agreements or
51 installment agreements with a term of up to ten years; (iv) credits and
52 property tax exemptions that may exclude a property from a tax lien
53 sale; (v) distribution of a customer survey to property owners who have
54 received notice of the intention to sell a tax lien on their property,
55 in order to determine the circumstances that led to the creation of the
56 lien; and (vi) any other credit or residential real property tax
S. 8578 372
1 exemption information, which, in the discretion of the commissioner of
2 finance, should be included in such outreach sessions. (2) The commis-
3 sioner of finance shall make a good faith effort to have a financial
4 counselor available at such outreach sessions. No later than ninety days
5 after the tax lien sale, the commissioner of finance shall submit to the
6 council a report on the number of outreach sessions performed in each
7 council district during the ninety-day period preceding the tax lien
8 sale. Such report shall include: (i) the number of installment agree-
9 ments begun by property owners or, as defined in subdivision b of
10 section 11-322 of this chapter, other eligible persons acting on behalf
11 of property owners at each outreach session; (ii) the number of property
12 tax exemption applications begun at each outreach session; (iii) the
13 total number of attendees at each outreach session; (iv) the number of
14 outreach sessions at which a financial counselor was available; (v) the
15 number of property owners, or other eligible persons acting on behalf of
16 property owners, who consulted a financial counselor at each outreach
17 session at which a financial counselor was available; and (vi) the
18 results of such surveys. Such report and the results of each outreach
19 session shall be disaggregated by council district.
20 k. The commissioner of finance shall post online the information
21 reported to the council pursuant to subdivisions h and i of this
22 section, provided that no information shall be posted online that
23 specifically identifies any property or property owner, except by zip
24 code and a randomly generated identifier.
25 § 11-321 Continuation of sale; notice required. A sale of a tax lien
26 or tax liens may be continued from time to time, if necessary, until all
27 the tax liens on the property so advertised and noticed shall be sold
28 unless such sale is canceled or postponed in accordance with section
29 11-322 or 11-322.1 of this chapter. If a sale of a tax lien or tax liens
30 is continued, the commissioner of finance, or his or her designee, shall
31 give such notice as is practicable of such continuation.
32 § 11-322 Postponement or cancellation of sales; installment agree-
33 ments. a. It shall be lawful for the commissioner of finance, or his or
34 her designee, to postpone or cancel any proposed sale of a tax lien or
35 tax liens on property that shall have been advertised and noticed for
36 sale prior to the date of sale. For purposes of this section, the words
37 "date of sale" shall have the same meaning provided in subdivision e of
38 section 11-320 of this chapter. The city shall not be liable for any
39 damages as a result of cancellation or postponement of a proposed sale
40 of a tax lien or tax liens, nor shall any cause of action arise from
41 such cancellation or postponement.
42 b. In accordance with rules promulgated by the commissioners of
43 finance and environmental protection, a property owner, or other eligi-
44 ble person, as defined by rule, acting on behalf of an owner, may enter
45 into agreements with the departments of finance and environmental
46 protection for the payment in installments of any delinquent real prop-
47 erty taxes, assessments, sewer rents, sewer surcharges, water rents, or
48 any other charges that are made a lien subject to the provisions of this
49 chapter. The proposed sale of a tax lien or tax liens on property shall
50 be cancelled when a property owner, or other eligible person acting on
51 behalf of an owner, enters into an agreement with the respective agency
52 for the payment of any such lien. Such rules shall also provide that
53 such property owners or such other eligible persons be given information
54 regarding eligibility for real property tax exemption programs prior to
55 entering into such agreements. As used in this subdivision, the term
56 "other eligible person" shall include a fiduciary, as defined in para-
S. 8578 373
1 graph three of subdivision (a) of section 11-1.1 of the estates, powers
2 and trusts law, acting with respect to the administration of the proper-
3 ty of an estate of a decedent who owned the real property as to which an
4 agreement under this subdivision is sought, or on behalf of a benefici-
5 ary of such real property from such estate. Any rules promulgated in
6 accordance with this subdivision defining "other eligible person" shall
7 include in such definition the means by which a beneficiary of real
8 property of the estate of a decedent who owned real property as to which
9 an agreement under this subdivision is sought meets the definition of
10 "other eligible person". Such means shall include the furnishing of any
11 death certificates or other relevant documents that substantiate the
12 claim of a beneficiary that they are the legal owner of the property.
13 Notwithstanding any other provision of this section, no more than one
14 such agreement with each respective agency may be in effect for a prop-
15 erty at any one time.
16 1. If payments required from a property owner, or other eligible
17 person acting on behalf of an owner, pursuant to such an agreement are
18 not made for a period of six months, such property owner, or such other
19 eligible person, shall be in default of such agreement, and the tax lien
20 or tax liens on the subject property may be sold, provided, however,
21 that such default may be cured upon such property owner's, or such other
22 eligible person's, bringing all installment payments and all current
23 charges that are outstanding at the time of the default to a current
24 status, which shall include, but not be limited to, any outstanding
25 interest and fees, prior to the date of sale, provided, however, that
26 such property owner, or such other eligible person, may elect to cure
27 such default by entering into a new installment agreement with a down
28 payment of twenty percent or more, of all delinquent real property
29 taxes, assessments, sewer rents, sewer surcharges, water rents and other
30 charges that are made a lien subject to the provisions of this chapter,
31 including any outstanding interest and fees, prior to the date of sale.
32 If such default is not cured prior to the date of sale, such property
33 owner, and any other eligible person acting on behalf of an owner, shall
34 not be eligible to enter into an installment agreement for the subject
35 property for five years, unless there is a finding of extenuating
36 circumstances by the department that entered into the installment agree-
37 ment with the property owner or such other eligible person. Notwith-
38 standing the prohibition against entering into an installment agreement
39 for the subject property for five years, a property owner, or such other
40 eligible person, who has defaulted on an installment agreement and whose
41 lien has been sold and, subsequent to the sale of the lien, whose prop-
42 erty on which the lien was sold is subject to another tax lien that is
43 eligible to be sold, may elect to enter into another installment agree-
44 ment with respect to such other lien before the end of such five-year
45 period, provided that such property owner, or such other eligible
46 person, makes a down payment of twenty percent or more, of all delin-
47 quent real property taxes, assessments, sewer rents, sewer surcharges,
48 water rents and other charges that are made a lien subject to the
49 provisions of this chapter, including any outstanding interest and fees,
50 prior to the date of the sale. No such property owner, or such other
51 eligible person, may make the election that is authorized pursuant to
52 this paragraph to enter into an installment agreement with a down
53 payment more than once for the subject property. The standards relating
54 to defaults and cures of defaults of installment agreements set forth in
55 this paragraph apply to installment agreements entered into pursuant to
56 such election.
S. 8578 374
1 2. An installment agreement shall provide for payments by the property
2 owner, or other eligible person acting on behalf of an owner, on a quar-
3 terly or monthly basis, for a period not less than eight years and not
4 more than ten years, provided that a property owner, or other eligible
5 person acting on behalf of an owner, may elect a period less than eight
6 years. Except as provided in paragraph one of this subdivision, there
7 shall be no down payment required upon the property owner's, or such
8 other eligible person's, entering into the installment agreement with
9 the respective department, but the property owner, or other eligible
10 person acting on behalf of an owner, may elect to make a down payment.
11 With respect to installment agreements with the commissioner of environ-
12 mental protection, the determination of whether payments shall be on a
13 quarterly or monthly basis shall be in the discretion of such commis-
14 sioner, except as provided in paragraph three of this subdivision. With
15 respect to installment agreements with the commissioner of finance, the
16 determination of whether payments shall be on a quarterly or monthly
17 basis shall be in the discretion of the property owner, or other eligi-
18 ble person acting on behalf of an owner.
19 3. Beginning on January first, two thousand twelve, any property owner
20 who has entered into an installment agreement with the commissioner of
21 environmental protection pursuant to this subdivision and who has auto-
22 mated meter reading shall receive a consolidated monthly bill for
23 current sewer rents, sewer surcharges and water rents and any payment
24 due under such installment agreement.
25 4. No later than September first, two thousand eleven, the commission-
26 ers of finance and environmental protection shall promulgate rules
27 governing installment agreements, including but not limited to, the
28 terms and conditions of such agreements, the payment schedules, and the
29 definition and consequences of default; no later than June first, two
30 thousand fourteen, the commissioners of finance and environmental
31 protection shall promulgate rules governing eligibility of owners or
32 other eligible persons acting on behalf of owners to enter into install-
33 ment agreements.
34 5. All installment agreements executed on or after March first, two
35 thousand fifteen shall include a conspicuous statement that if payments
36 required from a property owner pursuant to such an agreement are not
37 made for a period of six months, such property owner shall be in default
38 of such agreement, and the tax lien or tax liens on the subject property
39 may be sold, provided, however, that such default may be cured upon such
40 property owner's bringing all installment payments and all current
41 charges that are outstanding at the time of the default to a current
42 status, which shall include, but not be limited to, any outstanding
43 interest and fees, prior to the date of sale. Such statement shall also
44 include a notification that if such default is not cured prior to the
45 date of sale, such property owner shall not be eligible to enter into an
46 installment agreement for the subject property for five years, unless
47 there is a finding of extenuating circumstances in accordance with rules
48 promulgated by the department that entered into the installment agree-
49 ment with the property owner. Such statement shall include the defi-
50 nition of extenuating circumstances. All installment agreements shall
51 also include a statement describing the conditions under which the prop-
52 erty owner, or any other eligible person acting on behalf of an owner,
53 may be eligible, after default, to enter into another installment agree-
54 ment after such default, in accordance with paragraph one of this subdi-
55 vision.
S. 8578 375
1 6. If a property owner, or other eligible person acting on behalf of
2 an owner, who has entered into an installment agreement with the depart-
3 ment of finance, fails to make a payment pursuant to such agreement,
4 then the department of finance shall, after the first missed payment,
5 mail a letter to the property owner, or other eligible person acting on
6 behalf of an owner, stating that such owner, or other eligible person,
7 is at risk of being in default of such agreement. The letter shall be
8 mailed after the first missed payment if the department has not received
9 payment within two weeks of the due date.
10 c. No later than January thirty-first, two thousand twenty-four, and
11 no later than every January thirty-first thereafter, the department of
12 finance shall submit a report to the mayor and to the speaker of the
13 council on real property with an assessed value of two hundred fifty
14 thousand dollars or less for which: (A) the owner of such real property
15 has entered into an agreement pursuant to this section for the payment
16 in installments of real property taxes, assessments or other charges
17 that are made a lien subject to the provisions of chapter three of this
18 title other than water rents, sewer rents, or sewer surcharges; and (B)
19 such unpaid taxes are subject to the interest rate described in subdivi-
20 sion e of section 11-313 of this chapter for the preceding calendar
21 year, including, but not limited to the following data:
22 1. the number of such agreements executed during the preceding calen-
23 dar year;
24 2. the number of such agreements that were in effect on December thir-
25 ty-first of the preceding calendar year;
26 3. the number of applications for such agreements that were received
27 during the preceding calendar year, and the number of such applications
28 that were not approved;
29 4. the average amount of property taxes and charges subject to such
30 agreements; and
31 5. the number of such agreements that entered into default and the
32 number of defaults that were cured.
33 § 11-322.1 Hardship installment agreements. a. Definitions. For
34 purposes of this section, the following terms have the following mean-
35 ings:
36 1. Applicant. The term "applicant" means a property owner who files an
37 application for an installment agreement under this section. Such term
38 includes a property owner who has entered into an installment agreement
39 after filing such an application.
40 2. Default. The term "default" means that an installment payment
41 required under the installment agreement entered into under this section
42 remains unpaid in whole or in part for six months from the date payment
43 is required to be made, or any other tax or charge that becomes due on
44 the property during the term of such agreement remains unpaid in whole
45 or in part for six months.
46 3. Department. The term "department" means the department of finance.
47 4. Dwelling unit. The term "dwelling unit" means a unit in a condomin-
48 ium used primarily for residential purposes.
49 5. Fair market value. The term "fair market value" means the fair
50 market value of property as determined by the department or the fair
51 market value as determined by an appraisal obtained by the applicant
52 pursuant to paragraph four of subdivision g of this section, provided
53 that such appraisal shall be subject to review, and may be rejected, by
54 the department.
55 6. Income. The term "income" means the adjusted gross income for
56 federal income tax purposes as reported on an applicant's federal or
S. 8578 376
1 state income tax return for the applicable income tax year, subject to
2 any subsequent amendments or revisions; provided that if no such return
3 was filed for the applicable income tax year, "income" means the
4 adjusted gross income that would have been so reported if such a return
5 had been filed.
6 7. Income tax year. The term "income tax year" means the most recent
7 calendar year or fiscal year for which an applicant filed a federal or
8 state income tax return.
9 8. Net equity. The term "net equity" means the fair market value of
10 property minus any liabilities outstanding against such property, such
11 as mortgages, outstanding property taxes, water and sewer charges, and
12 any other liens on such property.
13 9. Property. The term "property" means real property classified as
14 class one pursuant to section eighteen hundred two of the real property
15 tax law or a dwelling unit in a condominium.
16 10. Property owner. The term "property owner" means an owner of real
17 property classified as class one pursuant to section eighteen hundred
18 two of the real property tax law or of a dwelling unit in a condominium,
19 or other eligible person, as defined in subdivision (i) of section 40-03
20 of title nineteen of the rules of the city of New York, acting on behalf
21 of such owner.
22 b. A property owner who satisfies the requirements described in subdi-
23 vision c and d, e or f of this section may enter into an agreement with
24 the department pursuant to this section for the payment in installments
25 of real property taxes, assessments or other charges that are made a
26 lien subject to the provisions of this chapter, except for sewer rents,
27 sewer surcharges or water rents. The entry into an installment agreement
28 pursuant to this section shall not suspend the accrual of interest
29 charged against the property pursuant to section 11-301 of this chapter.
30 A property owner may only have one installment agreement with the
31 department in effect at any one time.
32 c. Eligibility requirements for an installment agreement under this
33 section. To be eligible to enter into an installment agreement pursuant
34 to this section, an applicant must demonstrate that the following
35 requirements are met:
36 1. The applicant is a property owner.
37 2. The property shall have been the primary residence of the applicant
38 for an uninterrupted period of not less than one year immediately
39 preceding the date the application for the installment agreement is
40 submitted and continues to be the primary residence of the applicant
41 through the date the installment agreement is entered into. Hospitali-
42 zation or a temporary stay in a nursing home or rehabilitation facility
43 for a period of not more than three years shall not be considered a
44 change in primary residence.
45 3. The combined income of the applicant and of all the additional
46 property owners may not exceed eighty-six thousand four hundred dollars
47 for the income tax year immediately preceding the date of the applica-
48 tion for the installment agreement. The department shall promulgate
49 rules that establish a process for an applicant to seek an exception
50 from the requirement that income information from all additional proper-
51 ty owners be provided in cases of hardship.
52 d. Eligibility requirement for senior low-income installment agree-
53 ment. In addition to the requirements set forth in subdivision c of this
54 section, to be eligible to enter into a senior low-income installment
55 agreement pursuant to subdivision l of this section, an applicant must
56 be sixty-five years of age or older when the application is submitted.
S. 8578 377
1 e. Eligibility requirement for fixed length income-based installment
2 agreement. To be eligible to enter into a fixed length income-based
3 installment agreement pursuant to subdivision m of this section, an
4 applicant must satisfy the requirements set forth in subdivision c of
5 this section.
6 f. Eligibility requirements for extenuating circumstances income-based
7 installment agreement. In addition to the requirements set forth in
8 subdivision c of this section, for an applicant to be eligible to enter
9 into an extenuating circumstances income-based installment agreement
10 pursuant to subdivision n of this section, the department must make a
11 finding of extenuating circumstances pursuant to the process described
12 in paragraph four of subdivision (e) of section 40-03 of title nineteen
13 of the rules of the city of New York.
14 g. Initial application procedure. 1. An initial application for an
15 installment agreement under this section shall include:
16 (a) for installment agreements that provide for the payment of taxes
17 and charges that will accrue after the date of the installment agree-
18 ment, a title search identifying all mortgages and other liens on the
19 property; and
20 (b) the signature of a primary resident of the property, and if such
21 primary resident does not hold an ownership interest of at least fifty
22 percent in the subject property, the signature of any other owner of the
23 property who, in combination with such primary resident, holds an owner-
24 ship interest of at least fifty percent in such property, consenting to
25 the application for an installment agreement.
26 2. A complete application must be submitted to, and approved by, the
27 department.
28 3. An applicant may select a monthly or quarterly payment schedule and
29 may also select the amount that is required to be paid under the appli-
30 cable installment agreement pursuant to the options available pursuant
31 to subdivision l, m or n of this section.
32 4. An applicant who is the property owner of a dwelling unit in a
33 condominium may submit an appraisal obtained by such applicant of the
34 fair market value of such dwelling unit provided that:
35 (a) the valuation date of such appraisal is a date within, and such
36 appraisal shall have been prepared no more than, twelve months prior to
37 submission of an application;
38 (b) the cost of such appraisal shall be borne by such applicant; and
39 (c) the cost of such appraisal may not be included in the amount
40 subject to the installment agreement.
41 h. Renewal. 1. An installment agreement under this section shall
42 terminate unless an applicant files a renewal application each year. At
43 least sixty days before one year from the date such installment agree-
44 ment was entered into or renewed, the department shall mail each appli-
45 cant a renewal application, provided, however, that upon any such
46 renewal application being made by the applicant, any installment agree-
47 ment then in effect with respect to such applicant shall be deemed
48 renewed until such time as the department shall have found such appli-
49 cant to be either eligible or ineligible for the renewal of the install-
50 ment agreement but in no event for more than six additional months.
51 2. To renew an installment agreement under this section, an applicant
52 must submit a renewal application to the department on or before one
53 year from the date such installment agreement was entered into and each
54 year thereafter for which renewal is sought. To be eligible to renew
55 such agreement, an applicant must demonstrate that:
S. 8578 378
1 (a) the property continues to be the primary residence of such appli-
2 cant and such residence has been uninterrupted since the date the
3 initial installment agreement was entered into; and
4 (b) the combined income of such applicant and of all the additional
5 property owners does not exceed fifty-eight thousand three hundred nine-
6 ty-nine dollars for the income tax year immediately preceding the date
7 of the renewal of such installment agreement, except that an applicant
8 for the renewal of a fixed length income-based installment agreement
9 pursuant to subdivision m of this section is not required to submit
10 income information.
11 i. Effects of installment agreement on tax lien and tax lien sale. 1.
12 The execution of an installment agreement pursuant to this section shall
13 not suspend the accrual of liens, interest and other charges against the
14 property, which continue to accrue in accordance with applicable law.
15 2. A property for which an application has been submitted that
16 contains proof of income and, for a senior low-income installment agree-
17 ment described in subdivision l of this section, proof of age, and that
18 is signed, but is otherwise incomplete, shall be withdrawn from the next
19 tax lien sale. Such property, however, may be included in the tax lien
20 sale subsequent to the next tax lien sale if a completed application is
21 not submitted within forty-five days from the date of the additional
22 information request notice sent to the applicant by the department or if
23 the completed application is denied.
24 j. Amount subject to installment agreement. 1. Each approved install-
25 ment agreement shall set forth terms of repayment, including (a) the
26 frequency of payments, (b) the percentage of the taxes and charges that
27 forms the basis of the required payment for the senior low-income
28 installment agreement described in subdivision l of this section, or the
29 percentage of the combined income of the property owners for the income
30 tax year immediately preceding the initial application that forms the
31 basis of the required payment for the installment agreement for the
32 fixed length income-based and the extenuating circumstances income-based
33 installment agreements described in subdivisions m and n respectively,
34 (c) the payment schedule, and (d) the payment amount.
35 2. A lien sold in a tax lien sale before the date of an application
36 for an installment agreement is not eligible to be included in an
37 installment agreement under this section.
38 3. The applicant may choose to include the cost of the title search
39 required to be submitted with an application pursuant to subparagraph
40 (a) of paragraph one of subdivision g of this section in the amount
41 subject to the installment agreement. If an applicant chooses to include
42 such cost, the applicant may either select a title company to conduct
43 the required search and present documentation to the department of the
44 cost, or direct the department to use a title company selected by the
45 department. The department shall pay the cost of the title search and be
46 reimbursed by the applicant through the addition of the cost to the
47 amount subject to the installment agreement. The applicant shall make
48 such reimbursement in the first year of the installment agreement, in
49 monthly or quarterly payments, consistent with the payment frequency
50 selected for the installment agreement. The cost of the title search
51 shall bear interest at the same rate as the interest on unpaid real
52 property tax as provided in section 11-224.1 of this title.
53 4. (a) Any time the amount of the liens on a property subject to an
54 installment agreement under this section exceeds twenty-five percent of
55 the net equity in such property, the applicant shall pay all taxes and
56 charges imposed against the property that exceed twenty-five percent of
S. 8578 379
1 the net equity in the property as such taxes and charges become due, in
2 addition to the payment amount set forth in the installment agreement.
3 (b) Notwithstanding subparagraph (a) of this paragraph and provided
4 that section five hundred eighty-one of the real property tax law is in
5 effect in the same form as such section was in effect as of the effec-
6 tive date of this section, for property that is a dwelling unit in a
7 condominium subject to an installment agreement under this section and
8 for which an appraisal has not been obtained pursuant to paragraph four
9 of subdivision g of this section, any time the amount of the liens
10 subject to such agreement exceeds fifty percent of the net equity in
11 such property, the applicant shall pay all taxes and charges imposed
12 against such property that exceed fifty percent of the net equity in
13 such property as such taxes and charges become due, in addition to the
14 payment amount set forth in the installment agreement. For property that
15 is a dwelling unit in a condominium and for which an appraisal has been
16 obtained pursuant to paragraph four of subdivision g of this section,
17 any time the amount of the liens subject to an installment agreement
18 under this section exceeds the higher of (i) fifty percent of the net
19 equity in such property based on the fair market value determined by the
20 department; or (ii) twenty-five percent of the net equity in such prop-
21 erty based on the fair market value determined by the appraisal obtained
22 by the applicant, the applicant shall pay all taxes and charges imposed
23 against such property that exceed the higher of the amounts described by
24 clauses (i) and (ii) of this subparagraph as such taxes and charges
25 become due, in addition to the payment amount set forth in the install-
26 ment agreement.
27 (c) The department shall provide each applicant with a written projec-
28 tion at the time the installment agreement is entered into as to when
29 the twenty-five or fifty percent threshold, as determined pursuant to
30 subparagraphs (a) and (b) of this paragraph, will be exceeded. The
31 department shall also notify each property owner in writing when the
32 amount of the liens exceeds such threshold. Failure by the department to
33 provide an applicant with such projection or to notify a property owner
34 when the amount of the liens exceeds the applicable threshold, however,
35 shall not affect the validity of the installment agreement that has been
36 entered into, nor shall any claim arise or exist against the commission-
37 er of finance or any officer or agency of the city by reason of such
38 failure to provide such projection or such notification.
39 5. If at any time the department determines that the fair market value
40 of a property subject to an installment agreement under this section has
41 increased, an applicant may request that the net equity in such property
42 be recalculated and the net equity amount included in such installment
43 agreement be adjusted to reflect the recalculated net equity in such
44 property.
45 6. If the combined income of all of the property owners exceeds
46 fifty-eight thousand three hundred ninety-nine dollars for the income
47 tax year immediately preceding the date of making a renewal application
48 pursuant to subdivision h of this section, the applicant shall pay all
49 taxes and charges imposed against the property after the date of such
50 renewal application as such taxes and charges become due, in addition to
51 the payment amount set forth in such installment agreement.
52 k. Termination of installment agreement. 1. An installment agreement
53 shall be terminated when any of the following occurs:
54 (a) The property whose liens are the subject of such installment
55 agreement is no longer the primary residence of the applicant. An appli-
56 cant whose installment agreement has been terminated because of such
S. 8578 380
1 reason may apply to enter into an installment agreement pursuant to
2 section 11-322 of this chapter.
3 (b) The fixed term of the installment agreement expires. An applicant
4 whose installment agreement has been terminated because of such expira-
5 tion may apply to enter into an installment agreement pursuant to
6 section 11-322 of this chapter or to this section.
7 (c) The applicant is deceased.
8 (d) The applicant opts out of an installment agreement without a fixed
9 term as described in paragraph one of subdivision l of this section. An
10 applicant who opts out of such agreement may apply to enter into an
11 installment agreement pursuant to section 11-322 of this chapter or to
12 this section.
13 (e) The applicant does not file a timely renewal application in
14 accordance with the provisions of subdivision h of this section.
15 (f) The applicant is in default and has not cured such default as
16 provided in subparagraph (a) of paragraph three of this subdivision
17 prior to the next tax lien sale.
18 (g) The applicant has defaulted on the installment agreement and has
19 cured such default by entering into a new installment agreement pursuant
20 to clause two or three of subparagraph (a) of paragraph three of this
21 subdivision.
22 2. If an installment agreement is terminated, all taxes and charges
23 that accrued before such termination are required to be paid. If such
24 taxes and charges are not paid within nine months of such termination,
25 the tax lien or tax liens on such property may be sold. Notwithstanding
26 the preceding sentence, if an agreement is terminated pursuant to
27 subparagraph (c) of paragraph one of this subdivision, a surviving
28 spouse has eighteen months from the death of the applicant to pay all
29 taxes and charges on such property before the tax lien or tax liens on
30 such property may be sold. If such surviving spouse is a property owner
31 he or she may enter into a separate installment agreement pursuant to
32 section 11-322 of this chapter or subdivision l, m or n of this section,
33 as long as he or she meets the eligibility requirements for the respec-
34 tive installment agreement.
35 3. (a) An applicant may cure a default by:
36 (i) bringing all installment payments and all current charges, includ-
37 ing but not limited to any interest and fees, that are outstanding at
38 the time of the default to a current status prior to the date of the tax
39 lien sale;
40 (ii) entering into a new installment agreement with a down payment of
41 twenty percent or more, of all delinquent real property taxes, assess-
42 ments, sewer rents, sewer surcharges, water rents and other charges that
43 are made a lien subject to the provisions of this chapter, including any
44 outstanding interest and fees, prior to the date of such sale; or
45 (iii) entering into a new installment agreement under this section if
46 the department has made a finding of extenuating circumstances pursuant
47 to the process described in paragraph four of subdivision (e) of section
48 40-03 of title nineteen of the rules of the city of New York.
49 (b) If a default is not cured prior to the date of the tax lien sale,
50 such applicant shall not be eligible to enter into an installment agree-
51 ment for the subject property for five years, unless the department has
52 made a finding of extenuating circumstances pursuant to the process
53 described in paragraph four of subdivision (e) of section 40-03 of title
54 nineteen of the rules of the city of New York.
55 (c) Notwithstanding the prohibition in subparagraph (b) of this para-
56 graph against entering into an installment agreement for the subject
S. 8578 381
1 property for five years, an applicant who has defaulted on an install-
2 ment agreement and whose lien has been sold and, after the sale of the
3 lien, whose property on which the lien was sold is subject to another
4 tax lien that is eligible to be sold, may apply to enter into another
5 installment agreement with respect to such other lien before the end of
6 such five-year period, provided that such applicant makes a down payment
7 of twenty percent or more, of all delinquent real property taxes,
8 assessments, sewer rents, sewer surcharges, water rents and other charg-
9 es that are made a lien subject to the provisions of this chapter,
10 including any outstanding interest and fees, prior to the date of the
11 tax lien sale. An applicant shall not be eligible to enter an install-
12 ment agreement with a down payment under this subparagraph more than
13 once for the subject property.
14 (d) If a property owner who has entered into an installment agreement
15 with the department pursuant to this section fails to make a payment
16 pursuant to such agreement, the department shall, after the first missed
17 payment, mail a letter or send an email, when such address is known, to
18 the property owner stating that such owner is at risk of being in
19 default of such agreement. The letter or email shall be sent after the
20 first missed payment if the department has not received payment within
21 two weeks of the due date. Failure by the department to mail such letter
22 or send such email, however, shall not affect the validity of the
23 installment agreement that has been entered into, nor shall any claim
24 arise or exist against the commissioner of finance or any officer or
25 agency of the city by reason of such failure to mail such letter or send
26 such email.
27 l. Senior low-income installment agreement. 1. At the option of the
28 applicant, a senior low-income installment agreement may provide for
29 payments for a fixed period of time or for payments without a fixed
30 period of time. If the applicant selects an installment agreement with a
31 fixed time period, the applicant may select the term of the agreement.
32 The applicant may switch from an installment agreement without a fixed
33 time period to an installment agreement with a fixed time period, or
34 from an installment agreement with a fixed time period to an installment
35 agreement without a fixed time period, at any point.
36 2. A senior low-income installment agreement shall provide for the
37 payment of both a percentage of taxes and charges that have accrued, if
38 any, and a percentage of taxes and charges that will accrue after the
39 date of the installment agreement. The applicant may elect to pay an
40 installment amount based on zero percent, twenty-five percent, fifty
41 percent or seventy-five percent of the annual taxes and charges that
42 have accrued, if any, and that will accrue. If the applicant selects an
43 agreement with a fixed time period, the required payment shall be based
44 on the percentage selected and the term selected. If the applicant
45 selects an agreement without a fixed time period, the required payment
46 shall be based on the percentage selected for prospective taxes and
47 charges and a partial or full payment of the percentage of taxes and
48 charges that have accrued, if any. The applicant may adjust the payment
49 percentage at any point during the installment agreement, but may not
50 make more than one such adjustment during any six-month period.
51 m. Fixed length income-based installment agreement. 1. At the option
52 of the applicant, a fixed length income-based installment agreement
53 pursuant to this subdivision may provide for the payment of (a) only
54 taxes and charges that have accrued or (b) taxes and charges that have
55 accrued and taxes and charges that will accrue over the next fiscal
56 year. If option (a) is selected, the applicant shall pay all taxes and
S. 8578 382
1 charges that become due on the property after the installment agreement
2 is entered into in addition to the payment schedule provided in the
3 installment agreement. If option (b) is selected, the applicant shall
4 pay all taxes and charges that will accrue on the property after the
5 installment agreement has been in effect for one year in addition to the
6 payment schedule provided in the installment agreement.
7 2. The annual payment amount required pursuant to an installment
8 agreement described by this subdivision shall be based on a percentage
9 of the combined income of all of the property owners for the income tax
10 year immediately preceding the initial application for such installment
11 agreement. The applicant may select a percentage of two percent, four
12 percent, six percent or eight percent of such combined income. The
13 installment payment shall be calculated by dividing the annual payment
14 amount by twelve or four, depending on whether a monthly or quarterly
15 payment schedule is selected. The term of the agreement shall be calcu-
16 lated by dividing the taxes and charges included in the agreement pursu-
17 ant to paragraph one of this subdivision by the installment payment
18 determined by the calculation described in this paragraph.
19 3. An applicant may adjust the payment percentage at any point during
20 the installment agreement, but may not make more than one such adjust-
21 ment during any six-month period.
22 n. Extenuating circumstances income-based installment agreement. 1.
23 An extenuating circumstances income-based installment agreement shall
24 provide for the payment, during the period of such agreement, of a
25 percentage of taxes and charges that have accrued on the property and
26 taxes and charges that accrue after the date of the installment agree-
27 ment.
28 2. The annual payment amount required pursuant to an installment
29 agreement described by this subdivision shall be based on a percentage
30 of the combined income of all of the property owners for the income tax
31 year immediately preceding the initial application for an installment
32 agreement. The applicant may select a percentage of two percent, four
33 percent, six percent, or eight percent of such combined income. Such
34 installment payment shall be calculated by dividing the annual payment
35 amount by twelve or four, depending on whether a monthly or quarterly
36 payment schedule is selected. The installment agreement shall be for a
37 term of one year but may be extended on a yearly basis if the department
38 determines that the extenuating circumstances continue.
39 3. An applicant may adjust the payment percentage at any point during
40 the installment agreement, but may not make more than one such adjust-
41 ment during any six-month period.
42 o. After an applicant has entered into an installment agreement with
43 the department pursuant to this section, the department shall record the
44 entry of such agreement on the automated city register information
45 access system. Failure by the department to record such agreement,
46 however, shall in no manner affect the validity of such agreement, nor
47 shall any claim arise or exist against the commissioner of finance or
48 any officer or agency of the city by reason of such failure to record.
49 p. All installment agreements executed pursuant to this section on or
50 after the effective date of this subdivision shall include:
51 1. a statement that if payments required from an applicant pursuant to
52 such an agreement are not made for a period of six months, such appli-
53 cant shall be in default of such agreement, and the tax lien or tax
54 liens on the subject property may be sold, provided, however, that such
55 default may be cured upon such applicant's bringing all installment
56 payments and all current charges that are outstanding at the time of the
S. 8578 383
1 default to a current status, which shall include, but not be limited to,
2 any outstanding interest and fees, prior to the date of the tax lien
3 sale;
4 2. a notification that if such default is not cured prior to the date
5 of the tax lien sale, such property owner shall not be eligible to enter
6 into an installment agreement for the subject property for five years,
7 unless a finding of extenuating circumstances has been made by the
8 department pursuant to the process described in paragraph four of subdi-
9 vision (e) of section 40-03 of title nineteen of the rules of the city
10 of New York;
11 3. the definition of extenuating circumstances pursuant to such para-
12 graph;
13 4. a statement describing the conditions under which the property
14 owner may be eligible, after default, to enter into another installment
15 agreement in accordance with paragraph three of subdivision k of this
16 section; and
17 5. the date by which the applicant must submit a renewal application
18 each year.
19 q. Every January thirty-first, the department shall submit to the
20 speaker of the council a report on the usage of the installment agree-
21 ments set forth in this section in the prior calendar year, including,
22 but not limited to the following data, disaggregated by installment
23 agreement type:
24 1. the number of new installment agreements executed;
25 2. the number of installment agreements in effect on December thirty-
26 first of each year;
27 3. the number of applications for installment agreements received, the
28 number of applications not approved, and the reasons for disapproval;
29 4. for the senior low-income installment agreements, the number of new
30 installment agreements executed at zero percent, twenty-five percent,
31 fifty percent and seventy-five percent;
32 5. for the fixed length and extenuating circumstances income-based
33 installment agreements, the number of new installment agreements
34 executed at two percent, four percent, six percent or eight percent;
35 6. the average amount of property taxes and charges addressed by the
36 installment agreement;
37 7. the number of installment agreements that entered into default, the
38 number of defaults that were cured and the method by which they were
39 cured;
40 8. the number of installment agreements that were terminated, by
41 reason of termination;
42 9. the number of installment agreements that were renewed, including
43 whether such renewal occurred before or during the six-month period
44 described in paragraph one of subdivision h of this section; and
45 10. the number of installment agreements where the amount of liens on
46 the subject property exceeded the applicable percent of the net equity
47 in such property.
48 r. The department shall publicize the availability of the installment
49 agreements set forth in this section so as to maximize public awareness
50 of such agreements.
51 § 11-323 Commissioner of finance to conduct sale. The commissioner of
52 finance or his or her designee shall conduct the sales hereinbefore
53 provided to be made, or the commissioner may, in his or her discretion,
54 contract with any other person to conduct competitive sales of tax
55 liens.
S. 8578 384
1 § 11-324 Deposits and forfeits. The commissioner of finance may
2 require from each purchaser of a tax lien or tax liens, in cash or cash
3 equivalent in immediately available funds in the discretion of such
4 commissioner, a deposit of at least five per cent of the cash portion of
5 the sale price of the tax lien or tax liens purchased by him or her, as
6 liquidated damages, on a date determined by the commissioner of finance.
7 The balance shall be paid to the commissioner of finance in cash or cash
8 equivalent in immediately available funds or such other consideration
9 acceptable to the commissioner of finance or any combination thereof, in
10 his or her discretion. For purposes of this chapter "cash equivalent"
11 shall mean a cashier's check, bank check, certified check, money order,
12 or such other paper instrument as the commissioner of finance shall
13 prescribe. Such deposit and balance may also be paid by electronic funds
14 transfer. For purposes of this chapter, "electronic funds transfer"
15 shall mean any transfer of funds, other than a transaction originated by
16 check, draft or similar paper instrument, which is initiated using a
17 format prescribed by the commissioner of finance. A tax lien certificate
18 shall be made and delivered to the purchaser upon payment of the sale
19 price. In case any purchaser shall default in any obligation under the
20 terms and conditions of the tax lien sale, then the amount deposited by
21 the purchaser shall be forfeited to the city, and the tax lien or tax
22 liens upon the property affected by such purchase may be sold again at
23 the discretion of the commissioner of finance pursuant to section 11-319
24 of this chapter. All deposits forfeited as aforesaid shall be paid into
25 the general fund.
26 § 11-327 Tax lien certificates; operation. A tax lien certificate
27 shall operate to transfer and assign the tax lien upon the property
28 described therein for the taxes, assessments, sewer rents, sewer
29 surcharges, water rents, any other charges that are made a lien subject
30 to the provisions of this chapter, the costs of any notices and adver-
31 tisements given pursuant to this chapter, any other charges that are due
32 and payable, a surcharge pursuant to section 11-332 of this chapter, and
33 interest and penalties thereon.
34 § 11-328 Contents of a tax lien certificate. A tax lien certificate
35 shall contain a transfer and assignment by the city of the tax lien sold
36 to the purchaser, the date of the sale, the aggregate amount of the tax
37 lien so transferred, and the items of taxes, assessments, sewer rents,
38 sewer surcharges, water rents, any other charges that are made a lien
39 subject to the provisions of this chapter, the costs of any advertise-
40 ments and notices given pursuant to this chapter, any other charges that
41 are due and payable, a surcharge pursuant to section 11-332 of this
42 chapter, and interest and penalties thereon comprising the tax lien, the
43 rate of interest which the tax lien certificate will bear, the date when
44 the amounts under such tax lien are due pursuant to section 11-332 of
45 this chapter, and a description of the property affected by the tax
46 lien, which description shall include the designation of such property
47 on the tax map, by its lot number and the number of the block in which
48 it is contained, and such other identifying information as the commis-
49 sioner of finance or his or her designee may deem proper to add. For
50 purposes of this section, the words "date of sale" shall have the same
51 meaning provided in subdivision (e) section 11-320 of this chapter. Each
52 tax lien certificate shall be executed by the commissioner of finance or
53 his or her designee by manual or facsimile signature and shall be
54 acknowledged by the manual or facsimile signature of the officer
55 subscribing the same in the manner in which a deed is required to be
56 acknowledged to be recorded in the county in which the property affected
S. 8578 385
1 is situated. The commissioner of finance may designate an agent for
2 purposes of authenticating any such signature.
3 § 11-330 Record of tax lien certificates. The commissioner of finance
4 or his or her designee, shall keep in his or her office a public record
5 of sales of tax liens, and a copy of each tax lien certificate issued by
6 such commissioner or his or her designee. Assignments of tax lien
7 certificates duly acknowledged may be filed and recorded in the office
8 of the commissioner of finance or his or her designee. A tax lien
9 certificate and any assignment thereof, duly acknowledged, shall be
10 deemed conveyances under article eight of the real property law, and may
11 be recorded in the office of the recording officer of any county in
12 which the real property which it affects is situated. Tax lien certif-
13 icates and all assignments thereof shall be recorded by recording offi-
14 cers in the same manner as mortgages and assignments thereof, but with-
15 out payment of tax under article eleven of the tax law. Neither the tax
16 lien nor the rights transferred or created by a tax lien certificate
17 shall be impaired by failure of a recording officer to record a tax lien
18 certificate made by the city through the commissioner of finance or his
19 or her designee.
20 § 11-331 Records to be competent evidence. The record in the office of
21 the commissioner of finance or his or her designee of sales of tax
22 liens, of a tax lien certificate, and of a copy of a tax lien certif-
23 icate, and of an assignment of a tax lien certificate, a record of a tax
24 lien certificate in the office of a recording officer, and of an assign-
25 ment of a tax lien certificate, duly acknowledged, in the office of a
26 recording officer, shall each be evidence in any court in the state
27 without further proof. A transcript of any record enumerated in this
28 section, duly certified, shall be evidence in any court in the state
29 with like effect as the original instrument of record.
30 § 11-332 Rights of purchaser of tax lien. a. Any purchaser of a tax
31 lien or tax liens shall stand in the same position as the city and shall
32 have all the rights and remedies that the city would have had if the tax
33 lien or tax liens had not been sold.
34 b. The aggregate amount of each tax lien transferred pursuant to this
35 chapter shall be due and payable one year from the date of the sale.
36 Until such aggregate amount is fully paid and discharged, the holder of
37 the tax lien certificate shall be entitled to receive interest on such
38 aggregate amount from the date of sale, and semi-annually at the rate of
39 interest applicable in accordance with section 11-319 of this chapter.
40 If such aggregate amount is partially paid, the holder of the tax lien
41 certificate shall be entitled to receive interest only on the amount
42 that remains unpaid. Notwithstanding the foregoing sentence, the holder
43 of the tax lien certificate shall be entitled to receive and retain a
44 surcharge equal to five percent of the lien arising pursuant to the
45 provisions of this chapter as a result of the nonpayment of taxes,
46 assessments, sewer rents, sewer surcharges, water rents, any other
47 charges that are made a lien subject to the provisions of this chapter,
48 the costs of any advertisements and notices given pursuant to this chap-
49 ter, any other charges that are due and payable, and interest and penal-
50 ties thereon. Any amounts due shall be paid directly to the holder of
51 the tax lien certificate. At the option of the holder of any tax lien
52 certificate the aggregate amount thereof shall become subject to fore-
53 closure after default in the payment of interest for thirty days or
54 after default for six months after the date of sale stated in the tax
55 lien certificate in accordance with subdivision (d) of section 11-320
56 and section 11-328 of this chapter in the payment of any taxes, assess-
S. 8578 386
1 ments, sewer rents, sewer surcharges, water rents, any other charges
2 that are made a lien subject to the provisions of this chapter, or the
3 interest or penalties thereon which become a lien on or after the date
4 of sale of the tax lien transferred by such tax lien certificate. At his
5 or her option, the holder of the tax lien certificate may satisfy any
6 such subsequent tax lien on the same property, and shall, by virtue of
7 such satisfaction, be deemed to be in the same position as if he or she
8 were a purchaser of a tax lien certificate for such subsequent tax lien,
9 provided, however, that such holder shall not be entitled to receive a
10 five percent surcharge on such subsequent tax lien pursuant to this
11 section. The rate of interest on such subsequent lien shall be the rate
12 of interest applicable to tax lien certificates pursuant to section
13 11-319 of this chapter. The commissioner of finance or his or her desig-
14 nee, at the request of the purchaser of such subsequent lien, shall
15 issue a tax lien certificate for such lien pursuant to sections 11-327
16 and 11-328 of this chapter. Upon issuance of such certificate, the
17 commissioner of finance or his or her designee shall provide such notice
18 as is required pursuant to section 11-320(d) of this chapter. Failure to
19 provide notice pursuant to this subdivision shall not affect the validi-
20 ty of any transfer of a subsequent tax lien or tax liens pursuant to
21 this subdivision. Any person having a legal or beneficial interest in
22 property affected by a tax lien certificate may satisfy the same at any
23 time upon payment of the amounts due with interest at the rate applica-
24 ble in accordance with section 11-319 of this chapter. Upon satisfaction
25 of the tax lien, the holder thereof shall issue to the person who satis-
26 fied such tax lien a certificate of discharge, certifying that the tax
27 lien has been paid or has been otherwise satisfied, in such recordable
28 form as has been approved by the commissioner of finance. For purposes
29 of this section, the words "date of sale" shall have the same meaning
30 provided in subdivision (e) of section 11-320 of this chapter.
31 § 11-333 Discharge of tax lien. A tax lien sold pursuant to the
32 provisions of this chapter may be discharged by presenting the certif-
33 icate of discharge issued by the holder of the tax lien pursuant to
34 section 11-332 of this chapter to the recording officer of the county in
35 which the real property that it affects is situated, and any recording
36 officer to whom such certificate of discharge is presented shall record
37 the same.
38 § 11-334 Exemption from taxation. Tax liens and tax lien certificates
39 shall be exempt from taxation by the state or any local subdivisions
40 thereof, except from the taxes imposed by article ten of the tax law.
41 The real property affected by any tax lien shall not be exempt from
42 taxation by reason of this section.
43 § 11-335 Foreclosure of tax liens. If the amount of any tax lien which
44 shall have been transferred by a tax lien certificate shall not be paid
45 when under its terms and the provisions of section 11-332 of this chap-
46 ter such amount shall be due, the holder of such tax lien certificate
47 may maintain an action in the supreme court to foreclose such tax lien.
48 The holder of such tax lien certificate shall notify the commissioner of
49 finance or his or her designee in writing whenever he or she commences
50 such action at the time of filing of such action, and shall notify the
51 commissioner of finance in writing of the resolution of such action,
52 including any settlement of such action, within thirty days of such
53 resolution. In an action to foreclose a tax lien any person shall be a
54 proper party of whom the plaintiff alleges that such person has or may
55 have or that the plaintiff has reason to believe that such person has or
56 may have an interest in or claim upon the property affected by the tax
S. 8578 387
1 lien. A plaintiff in an action to foreclose a tax lien shall recover
2 reasonable attorney's fees for maintaining such action. Except as other-
3 wise provided in this chapter an action to foreclose a tax lien shall be
4 regulated by the provisions of the civil practice law and rules and by
5 all other provisions of law, and rules of practice applicable to actions
6 to foreclose mortgages on real property. The people of the state of New
7 York or the city of Staten Island may be made party to an action to
8 foreclose a tax lien in the same manner as a natural person. Where the
9 people of the state of New York or the city of Staten Island are made a
10 party defendant the complaint shall set forth, in addition to the other
11 matters required to be set forth by law, detailed facts showing the
12 particular nature of the interest in or the lien on such property of the
13 people of the state of New York or the city of Staten Island, and
14 detailed facts showing the particular nature of the interest in or the
15 lien on such property which plaintiff has reason to believe that the
16 people of the state of New York or the city of Staten Island have or may
17 have in such property, and the reason for making the people of the state
18 of New York or the city of Staten Island a party defendant. Upon failure
19 to state such facts the complaint shall be dismissed as to the people of
20 the state or the city of Staten Island.
21 § 11-336 Pleading tax lien certificate. Whenever a cause of action,
22 defense or counterclaim, is for the foreclosure of a tax lien, or is in
23 any manner founded upon a tax lien or a tax lien certificate, the
24 production in evidence of an instrument executed by the commissioner of
25 finance or his or her designee in the form prescribed in section 11-328
26 of this chapter for a tax lien certificate subscribed by or in behalf of
27 the commissioner of finance or his or her designee shall be presumptive
28 evidence that the lien purported to be transferred by such an instrument
29 was a valid and enforceable lien, and that it has been duly assigned to
30 the purchaser, and it shall not be necessary to plead or prove any act,
31 proceeding, notice or action, preceding the delivery of such tax lien
32 certificate nor to establish the validity of the tax lien transferred by
33 such tax lien certificate. If a party or person in interest in any such
34 action or proceeding claims that a tax lien is irregular or invalid, or
35 that there is any defect therein or that a tax lien certificate is
36 irregular, invalid or defective, such invalidity, irregularity or defect
37 must be specifically pleaded or set forth, and must be established
38 affirmatively by the party or person pleading or setting forth the same.
39 § 11-337 Judgment upon tax lien. In every action for the foreclosure
40 of a tax lien, and in every action or proceeding in which a cause of
41 action, defense or counterclaim is in any manner founded upon a tax lien
42 or a tax lien certificate, such tax lien certificate and the tax lien
43 which it transfers shall be presumed to be regular and valid and effec-
44 tual to transfer to the purchaser named therein a valid and enforceable
45 tax lien. Unless in such an action or proceeding such tax lien or tax
46 lien certificate be found to be invalid, they shall be adjudged to be
47 enforceable and valid, for the amount thereof and the interest to which
48 the holder may be entitled and a tax lien transferred by a tax lien
49 certificate effectual to transfer such tax lien to the purchaser named
50 therein.
51 § 11-338 Judgment of foreclosure of tax lien; sale. In an action to
52 foreclose a tax lien, unless the defendants obtain judgment, the plain-
53 tiff shall be entitled to a judgment establishing the validity of the
54 tax lien so far as the same shall not be adjudged invalid and of the tax
55 lien certificate and directing the sale of the real, personal or mixed
56 property affected thereby, or such part thereof as shall be sufficient
S. 8578 388
1 to discharge the tax lien, or such items thereof as shall not be
2 adjudged invalid together with the expense of the sale, and the costs of
3 the action.
4 § 11-339 City may purchase at sale. At a sale pursuant to judgment in
5 an action to foreclose a tax lien or at any sale free of tax liens, the
6 city, without authorization other than hereby given, may purchase any
7 property that is the subject of the sale.
8 § 11-340 Effect of judgment foreclosing tax lien. Every final judg-
9 ment in an action to foreclose a tax lien shall be binding upon, and
10 every conveyance upon a sale pursuant thereto, shall transfer to and
11 vest in the purchaser all the right, title, interest and estate in and
12 claim upon the real property affected by such judgment, of the plain-
13 tiff, each defendant upon whom the summons is served, each person claim-
14 ing from, through or under such a defendant by title accruing after the
15 filing of notice of pendency of the action or after the entry of judg-
16 ment and filing of the judgment roll in the proper county clerk's
17 office, and each person not in being when the judgment is rendered, who
18 afterwards may become entitled to a beneficial interest attaching to, or
19 an estate or interest in such real property or any portion thereof,
20 provided that the person presumptively entitled to such beneficial
21 interest, estate or interest is a party to such action or bound by such
22 judgment. So much of section three hundred seventeen of the civil prac-
23 tice law and rules as requires the court to allow a defendant to defend
24 an action after final judgment shall not apply to an action to foreclose
25 a tax lien. Delivery of the possession of real property affected by a
26 judgment to foreclose a tax lien may be compelled in the manner
27 prescribed in section two hundred twenty-one of the real property
28 actions and proceedings law.
29 § 11-341 Surplus. Any surplus of the proceeds of the sale, after
30 paying the expenses of the sale, and all taxes, assessments, sewer
31 rents, sewer surcharges, water rents, any other charges made a lien
32 subject to the provisions of this chapter, the costs of any advertise-
33 ments and notices given pursuant to this chapter, any other charges that
34 are due and payable, any surcharge pursuant to section 11-332 of this
35 chapter and interest and penalties thereon, including such amounts which
36 accrued or became a lien on and after the date of sale of the tax lien
37 or tax liens and up to and including the date of the sale of the proper-
38 ty in foreclosure, and satisfying the amount of such tax lien or tax
39 liens and interest and the costs of the action, must be paid into court,
40 for the use of the person or persons entitled thereto. If any part of
41 the surplus remains in court for the period of three months, and no
42 application has been made therefor, the court must, and, if an applica-
43 tion therefor is pending, the court may direct such surplus to be
44 invested at interest, for the benefit of the person or persons entitled
45 thereto, to be paid upon the direction of the court.
46 § 11-342 Foreclosed tax lien not arrears. Any party to an action to
47 foreclose a tax lien or any purchaser or any party in interest may give
48 notice of such foreclosure to the city collector and after such notice
49 the items which constituted the tax lien thus foreclosed shall not be
50 entered by the city collector in any yearly assessment-roll, so long as
51 the judgment of foreclosure of such lien remains in force.
52 § 11-347 Corporation counsel to protect city in all proceedings relat-
53 ing to tax liens. It shall be the duty of the corporation counsel to
54 protect the interest of the city in all matters, actions and proceedings
55 relating to tax liens and tax lien certificates; to intervene on behalf
56 of the city or to make the city a party to any action in which the
S. 8578 389
1 corporation counsel believes it to be to the interest of the city so to
2 do, by reason of any matter arising under or relating to any tax lien or
3 tax lien certificate, or advertisement of sale of tax liens. The corpo-
4 ration counsel in his or her discretion may represent the purchaser of a
5 tax lien or the holder of a tax lien certificate in any action in which
6 the corporation counsel believes it to be in the interest of the city so
7 to do, by reason of any matter arising under or relating to any tax lien
8 or tax lien certificate, or advertisement of sale of tax liens. All
9 costs recovered in any action or proceeding conducted or defended by the
10 corporation counsel pursuant to this section shall belong to the city
11 and shall be collected, applied and disposed of in the same manner as
12 are other costs recovered by the city.
13 § 11-349 Lost tax lien certificate; delivery of duplicate in case of.
14 Whenever any tax lien certificate given by the commissioner of finance
15 or his or her designee, as in this chapter provided, shall be lost, the
16 commissioner of finance or his or her designee may receive evidence of
17 such loss, and on satisfactory proof of the fact may direct the
18 execution and delivery of a duplicate to such person or persons who
19 shall appear entitled thereto, and may also, in the commissioner's
20 discretion, require a bond of indemnity to the city.
21 § 11-350 Affidavits of publication and mailing of necessary notices to
22 be preserved. It shall be the duty of the commissioner of finance or his
23 or her designee to procure, preserve and register at the department of
24 finance, affidavits of the publication and mailing of all the advertise-
25 ments and notices by this chapter required to be published and mailed,
26 and such affidavits shall be presumptive proof of such publication and
27 mailing in all the courts of this state.
28 § 11-353 Cancellation of taxes, assessments, water rents, sewer rents,
29 sewer surcharges, any charges that are made a lien subject to the
30 provisions of this chapter, the costs of any advertisements and notices
31 given pursuant to this chapter, any other charges that are due and paya-
32 ble, a surcharge pursuant to section 11-332 of this chapter, and inter-
33 est and penalties thereon. Whenever the city has heretofore or shall
34 hereafter become vested with title to property acquired by virtue of tax
35 enforcement foreclosure proceedings, or by deed in lieu thereof, the
36 commissioner of finance, or his or her designee, shall cancel all unpaid
37 real estate taxes, tax lien certificates, assessments, water rents,
38 sewer rents, sewer surcharges, any charges that are made a lien subject
39 to the provisions of this chapter, the costs of any advertisements and
40 notices given pursuant to this chapter, any other charges that are due
41 and payable, a surcharge pursuant to section 11-332 of this chapter, and
42 interest and penalties thereon upon which the foreclosure action was
43 predicated. Upon the sale of such property and the conveyance of the
44 title thereof by the city, the commissioner of finance, or his or her
45 designee, shall cancel all unpaid real estate taxes, assessments, water
46 rents, sewer rents, sewer surcharges, any charges that are made a lien
47 subject to the provisions of this chapter, the costs of any advertise-
48 ments and notices given pursuant to this chapter, any other charges that
49 are due and payable, a surcharge pursuant to section 11-332 of this
50 chapter, and interest and penalties thereon that shall have accrued
51 during the period between the date of the last unpaid item upon which
52 the foreclosure action was predicated and the date of conveyance of
53 title. The commissioner of finance, or his or her designee, shall enter
54 notations of such cancellations in the appropriate records for each such
55 parcel of property.
S. 8578 390
1 § 11-354 Additional method to enforce payment of tax liens held by the
2 city. (a) Notwithstanding any other provision of law and notwithstanding
3 any omission to hold a tax lien sale, whenever any tax, assessment,
4 sewer rent, sewer surcharge, water rent, any charge that is made a lien
5 subject to the provisions of this chapter or chapter four of this title,
6 or interest and penalties thereon, has been due and unpaid for a period
7 of at least one year from the date on which the tax, assessment or other
8 legal charge represented thereby became a lien, or in the case of any
9 class one property or any class two property that is a residential
10 condominium or residential cooperative, as such classes of property are
11 defined in subdivision one of section eighteen hundred two of the real
12 property tax law, or in the case of a multiple dwelling owned by a
13 company organized pursuant to article eleven of the private housing
14 finance law with the consent and approval of the department of housing
15 preservation and development, for a period of at least three years from
16 the date on which the tax, assessment or other legal charge became a
17 lien, the city, as owner of a tax lien, may maintain an action in the
18 supreme court to foreclose such lien. Such action shall be governed by
19 the procedures set forth in section 11-335 of this chapter; provided,
20 however, that such parcel shall only be sold to the highest responsible
21 bidder. Such purchaser shall be deemed qualified as a responsible bidder
22 pursuant to such criteria as are established in rules promulgated by the
23 commissioner of finance after consultation with the commissioner of
24 housing preservation and development.
25 (b) At a sale pursuant to a judgment in an action brought pursuant to
26 subdivision (a) of this section to foreclose a tax lien, the city may
27 purchase property subject to such lien in accordance with the provisions
28 of section 11-339 of this chapter.
29 (c) The provisions of this section shall not affect any existing reme-
30 dy or procedure for the enforcement or foreclosure of tax liens provided
31 for in this code or any other law, but the remedy provided herein for
32 foreclosure of tax liens shall be in addition to any other remedies or
33 procedures provided by any general, special or local law. Notwithstand-
34 ing any other provision of this code, the commissioner of finance shall
35 be authorized to agree to forebear to commence an in rem action against
36 property which has an outstanding and unredeemed tax lien certificate
37 previously sold by the city and held by a third party pursuant to this
38 chapter.
39 § 11-355 Reporting. The commissioner of finance shall submit an annual
40 report to the council concerning the sale or sales of tax liens during
41 the preceding year pursuant to this chapter. Such report shall include
42 the following information regarding such sale or sales: a list of prop-
43 erties for which a tax lien or tax liens has or have been sold, includ-
44 ing identification of the particular tax lien or tax liens sold; the
45 proceeds received from the sale or sales of tax liens; identification of
46 the purchaser of and servicer for the tax lien or tax liens sold; a
47 report of servicer activities during the immediately preceding year; the
48 redemption rate for tax liens that have been sold; the delinquency rate
49 for real property taxes for the immediately preceding year; and any
50 other information pertinent to the sale of tax liens that may be
51 requested by the council and which is not made confidential pursuant to
52 section 11-208.1 of this code. Upon request by the council, information
53 provided in such report shall be arranged by community board. In addi-
54 tion to such report, the commissioner of finance shall from time to time
55 provide any other information pertinent to the sale of tax liens that
56 may be requested by the council and which is not made confidential
S. 8578 391
1 pursuant to section 11-208.1 of the code, including updated information
2 regarding the sale or sales of tax liens pursuant to this chapter. In
3 addition to such report, no later than August thirty-first, two thousand
4 twenty, the commissioner shall provide to the council a report listing
5 all properties on which liens have been sold during the period from
6 January first, two thousand fifteen through December thirty-first, two
7 thousand nineteen. The report shall indicate, based on records in the
8 office of the register, whether a transfer of or mortgage recorded on
9 any of such properties has occurred during such period after the sale of
10 any tax lien sold during such period.
11 CHAPTER 4
12 TAX LIEN FORECLOSURE BY ACTION IN REM
13 § 11-401 Definitions. Whenever used in this chapter, the following
14 terms shall mean:
15 1. "Tax lien." The lien arising as a result of the nonpayment of
16 taxes, assessments, sewer rents, sewer surcharges, water rents, any
17 other charges that are made a lien subject to the provisions of this
18 chapter or chapter three of this title, interest and penalties thereon,
19 and the right of the city to receive such amounts.
20 2. "Court." The supreme court.
21 3. "Class." Any class of real property defined in subdivision one of
22 section eighteen hundred two of the real property tax law, and any
23 subclassification of class two real property where such subclassifica-
24 tion is established by rule of the commissioner of finance promulgated
25 pursuant to this subdivision.
26 4. "Distressed property." Any parcel of class one or class two real
27 property that is subject to a tax lien or liens that result from an
28 environmental control board judgment against the owner of such parcel
29 for a building code violation with a lien or liens to value ratio, as
30 determined by the commissioner of finance, equal to or greater than
31 twenty-five percent or any parcel of class one or class two real proper-
32 ty that is subject to a tax lien or liens with a lien or liens to value
33 ratio, as determined by the commissioner of finance, equal to or greater
34 than fifteen percent and that meets one of the following two criteria:
35 i. such parcel has an average of five or more hazardous or immediately
36 hazardous violations of record of the housing maintenance code per
37 dwelling unit; or
38 ii. such parcel is subject to a lien or liens for any expenses
39 incurred by the department of housing preservation and development for
40 the repair or the elimination of any dangerous or unlawful conditions
41 therein, pursuant to section 27-2144 of this code, in an amount equal to
42 or greater than one thousand dollars.
43 § 11-401.1 Procedures for distressed property. a. The commissioner of
44 finance shall, not less than sixty days preceding the date of the sale
45 of a tax lien or tax liens, submit to the commissioner of housing pres-
46 ervation and development a description by block and lot, or by such
47 other identification as the commissioner of finance may deem appropri-
48 ate, of any parcel of class one or class two real property on which
49 there is a tax lien that may be foreclosed by the city. The commissioner
50 of housing preservation and development shall determine, and direct the
51 commissioner of finance, not less than ten days preceding the date of
52 the sale of a tax lien or tax liens, whether any such parcel is a
53 distressed property as defined in subdivision four of section 11-401 of
54 this chapter. Any tax lien on a parcel so determined to be a distressed
S. 8578 392
1 property shall not be included in such sale. In connection with a subse-
2 quent sale of a tax lien or tax liens, the commissioner of finance may,
3 not less than sixty days preceding the date of the sale, resubmit to the
4 commissioner of housing preservation and development a description by
5 block and lot, or by such other identification as the commissioner of
6 finance may deem appropriate, of any parcel of class one or class two
7 real property that was previously determined to be a distressed property
8 pursuant to this paragraph and on which there is a tax lien that may be
9 included in such sale. The commissioner of housing preservation and
10 development shall determine, and direct the commissioner of finance, not
11 less than ten days preceding the date of the sale, whether such parcel
12 remains a distressed property. If the commissioner of housing preserva-
13 tion and development determines that the parcel is not a distressed
14 property, then the tax lien on the parcel may be included in the sale.
15 b. The commissioner of housing preservation and development may peri-
16 odically review whether a parcel of class one or class two real property
17 that is subject to subdivision c of this section or subdivision j of
18 section 11-412.1 of this chapter remains a distressed property. If the
19 commissioner determines that the parcel is not a distressed property as
20 defined in subdivision four of section 11-401 of this chapter, then the
21 parcel shall not be subject to such subdivisions.
22 c. Any parcel so determined to be a distressed property shall be
23 subject to an in rem foreclosure action, or in the case where the
24 commissioner of finance does not commence such action the commissioner
25 of housing preservation and development shall evaluate such parcel and
26 take such action as he or she deems appropriate under the programs,
27 existing at the time of such evaluation, that are designed to encourage
28 the rehabilitation and preservation of existing housing, and shall moni-
29 tor or cause to be monitored the status of the property. The commission-
30 er of housing preservation and development, in his or her discretion,
31 shall cause an inspection to be conducted on any parcel so determined to
32 be a distressed property. In addition, the commissioner of housing pres-
33 ervation and development shall submit to the council a list of all
34 parcels so determined to be a distressed property within thirty days
35 from the date such parcels are identified as a distressed property.
36 § 11-402 Applicability of procedure of foreclosure in rem. a. The
37 provisions of this chapter shall be applicable only to tax liens owned
38 by the city.
39 b. The provisions of this chapter shall not affect any existing remedy
40 or procedure for the enforcement or foreclosure of tax liens provided
41 for in this code or any other law, but the remedy provided herein for
42 foreclosure by action in rem shall be in addition to any other remedies
43 or procedures provided by any general, special or local law.
44 c. The provisions of this chapter shall not affect pending actions or
45 proceedings, provided, however, that any pending action or proceeding
46 for the enforcement or foreclosure of tax liens may be discontinued, and
47 a new action may be instituted pursuant to the provisions of this chap-
48 ter, in respect to any such tax lien.
49 § 11-402.1 Inapplicability of article eleven of the real property tax
50 law to the enforcement of the collection of delinquent taxes. In accord-
51 ance with section six of chapter six hundred two of the laws of nineteen
52 hundred ninety-three and subdivision two of section eleven hundred four
53 of the real property tax law, it is hereby provided that the collection
54 of delinquent taxes shall continue to be enforced pursuant to chapters
55 three and four of title eleven of this code and other related provisions
56 of the charter and this code as such chapters three and four and such
S. 8578 393
1 related provisions may from time to time be amended and that article
2 eleven of the real property tax law shall not be applicable to the city.
3 § 11-403 Jurisdiction. The supreme court shall have jurisdiction of
4 actions authorized by this chapter.
5 § 11-404 Foreclosure by action in rem. a. Whenever it shall appear
6 that a tax lien or tax liens has or have been due and unpaid for a peri-
7 od of at least one year from the date on which the tax, assessment or
8 other legal charge represented thereby became a lien, such tax lien or
9 tax liens, except as provided in subdivision b of this section or other-
10 wise provided by this chapter, may be summarily foreclosed in the manner
11 provided in this chapter, notwithstanding the provisions of any general,
12 special or local law and notwithstanding any omission to hold a sale of
13 a tax lien or tax liens prior to such foreclosure. A bill of arrears or
14 any other instrument evidencing such tax lien or tax liens shall be
15 evidence of the fact that the tax lien or tax liens represented thereby
16 has not or have not been paid to the city or sold by it.
17 b. A tax lien on any class one property or any class two property that
18 is a residential condominium or residential cooperative, as such classes
19 of property are defined in subdivision one of section eighteen hundred
20 two of the real property tax law, and on any multiple dwelling owned by
21 a company organized pursuant to article eleven of the private housing
22 finance law with the consent and approval of the department of housing
23 preservation and development, shall not be foreclosed in the manner
24 provided in this chapter until such tax lien has been due and unpaid for
25 a period of at least three years from the date on which the tax, assess-
26 ment or other legal charge represented thereby became a lien.
27 § 11-405 Preparation and filing of lists of delinquent taxes. a. The
28 commissioner of finance from time to time shall prepare a list, to be
29 known as a "list of delinquent taxes", of all parcels, or all parcels
30 within a particular class or classes, that are within a particular
31 section of a tax map or portion of a section of a tax map of the city
32 and on which there are tax liens subject to foreclosure pursuant to this
33 chapter, provided, however, that no such portion shall be smaller than a
34 block, as defined in subdivision d of section 11-204 of subchapter one
35 of chapter two of this title. Every such list shall bear a caption
36 containing the in rem action number of the city's tax foreclosure
37 proceeding, the section of a tax map or portion of a section of a tax
38 map, and where the action covers less than all parcels in a section of a
39 tax map or portion of a section of a tax map, the particular class or
40 classes, and shall contain a statement of the rate or rates at which
41 interest and penalties will be computed for the various liens it
42 includes.
43 b. Every such list shall set forth the parcels it includes separately
44 and number them serially. For each parcel it shall contain (1) a brief
45 description sufficient to identify the parcel, including section, block
46 and lot numbers, and the street and street number, if any, or in the
47 absence of such information the parcel or tract identification number
48 shown on a tax map or on a map filed in the county clerk's or register's
49 office and (2) a statement of the amounts and dates of all unpaid tax
50 liens which are subject to foreclosure under this chapter and of those
51 which have accrued thereafter.
52 c. (1) The commissioner of finance may exclude or thereafter remove
53 from such list any parcels (i) as to which questions the commissioner
54 deems meritorious have been raised regarding the validity of the liens,
55 (ii) as to which all the taxes and other charges which rendered said
56 parcels eligible for inclusion in said list have been paid, or (iii)
S. 8578 394
1 which are owned by an entity other than a company organized pursuant to
2 article eleven of the private housing finance law with the consent and
3 approval of the department of housing preservation and development and
4 which are not owner-occupied residential buildings of not more than five
5 residential units and as to which an agreement has been duly made,
6 executed and filed with such commissioner for the payment of the delin-
7 quent taxes, assessments or other legal charges, interest and penalties
8 in installments. The first installment shall be paid upon the filing of
9 the installment agreement with the commissioner and shall be in an
10 amount of not less than fifteen percent of such delinquent taxes,
11 assessments or other legal charges, interest and penalties. The remain-
12 ing installments, which shall be twice the number of unpaid quarters of
13 real estate taxes or the equivalent thereof but which shall in no event
14 exceed thirty-two in number, shall be payable quarterly on the first day
15 of July, October, January and April. For the purposes of calculating the
16 number of such remaining installments unpaid real estate taxes which
17 are, on and after July first, nineteen hundred eighty-two, due and paya-
18 ble on an other than quarterly basis shall be deemed to be payable on a
19 quarterly basis.
20 (2) The commissioner of finance may also exclude or thereafter remove
21 from such list any parcels which are owned by a company organized pursu-
22 ant to article eleven of the private housing finance law with the
23 consent and approval of the department of housing preservation and
24 development, and (i) as to which an agreement has been duly made,
25 executed and filed with said commissioner for the payment of the delin-
26 quent taxes, assessments or other legal charges incurred prior to the
27 ownership of said parcel by said article eleven company, and the inter-
28 est and penalties thereon, in installments. The first installment there-
29 of shall be paid upon the filing of the installment agreement with the
30 commissioner and shall be in an amount of not less than ten percent of
31 such delinquent taxes, assessments or other legal charges and the inter-
32 est and penalty thereon. The remaining installments, which shall be
33 three times the number of unpaid quarters of real estate taxes or the
34 equivalent thereof but which shall in no event exceed forty-eight in
35 number shall be payable quarterly on the first days of July, October,
36 January and April. For the purposes of calculating the number of such
37 remaining installments unpaid real estate taxes which are, on and after
38 July first, nineteen hundred eighty-two due and payable on an other than
39 quarterly basis shall be deemed to be payable on a quarterly basis; and
40 (ii) as to which an agreement has been duly made, executed and filed
41 with said commissioner, for the payment of the delinquent taxes, assess-
42 ments or other legal charges incurred after the ownership of said parcel
43 by said article eleven company on the same terms as are provided in
44 paragraph one of this subdivision.
45 (3) The commissioner of finance may also exclude or thereafter remove
46 from such list any parcels which are owner-occupied residential build-
47 ings of not more than five residential units as to which an agreement
48 has been duly made, executed and filed with said commissioner for the
49 payment of the delinquent taxes, assessments, or other legal charges and
50 the interest and penalties thereon, in installments. The first install-
51 ment thereof shall be paid upon the filing of the installment agreement
52 with the commissioner and shall be in an amount not less than ten
53 percent of such delinquent taxes, assessment or other legal charges and
54 the interest and penalty thereon. The remaining installments, which
55 shall be three times the number of unpaid quarters of real estate taxes
56 or the equivalent thereof but which shall in no event exceed forty-eight
S. 8578 395
1 in number, shall be payable quarterly on the first days of July, Octo-
2 ber, January and April. For purposes of calculating the number of such
3 remaining installments unpaid real estate taxes which are, on and after
4 July first, nineteen hundred eighty-two, due and payable on an other
5 than quarterly basis shall be deemed to be payable on a quarterly basis.
6 (4) Notwithstanding paragraph one, two or three of this subdivision,
7 with respect to installment agreements duly made, executed and filed on
8 or after the date on which this paragraph takes effect, the commissioner
9 of finance may also exclude or thereafter remove from such list any
10 parcel that is (i) (A) a residential building containing not more than
11 five residential units, (B) a residential condominium unit, (C) a resi-
12 dential building held in a cooperative form of ownership, or (D) owned
13 by a company organized pursuant to article eleven of the state private
14 housing finance law with the consent and approval of the department of
15 housing preservation and development, and (ii) as to which an agreement
16 has been duly made, executed and filed with such commissioner for the
17 payment of the delinquent taxes, assessments or other legal charges, and
18 the interest and penalties thereon, in installments. The first install-
19 ment thereof shall be paid upon the filing of the installment agreement
20 with the commissioner and shall be in an amount equal to not less than
21 ten percent of the total amount of such delinquent taxes, assessments or
22 other legal charges and the interest and penalties thereon. The remain-
23 ing installments, which shall be three times the number of unpaid quar-
24 ters of real estate taxes or the equivalent thereof, but which shall in
25 no event exceed thirty-two in number, shall be payable quarterly on the
26 first days of July, October, January and April. For the purposes of
27 calculating the number of such remaining installments, unpaid real
28 estate taxes that are due and payable on other than a quarterly basis
29 shall be deemed to be payable on a quarterly basis.
30 (5) Notwithstanding paragraph one, two or three of this subdivision,
31 with respect to installment agreements duly made, executed and filed on
32 or after the date on which this paragraph takes effect, the commissioner
33 of finance may also exclude or thereafter remove from such list any
34 parcel of class one or class two real property, other than a parcel
35 described in paragraph four of this subdivision, as to which an agree-
36 ment has been duly made, executed and filed with such commissioner for
37 the payment of the delinquent taxes, assessments or other legal charges,
38 and the interest and penalties thereon, in installments. The first
39 installment thereof shall be paid upon the filing of the installment
40 agreement with the commissioner and shall be in an amount equal to not
41 less than fifteen percent of the total amount of such delinquent taxes,
42 assessments or other legal charges and the interest and penalties there-
43 on. The remaining installments, which shall be twice the number of
44 unpaid quarters of real estate taxes or the equivalent thereof, but
45 which shall in no event exceed thirty-two in number, shall be payable
46 quarterly on the first days of July, October, January and April. For the
47 purposes of calculating the number of such remaining installments,
48 unpaid real estate taxes that are due and payable on other than a quar-
49 terly basis shall be deemed to be payable on a quarterly basis.
50 (6) Notwithstanding paragraph one, two or three of this subdivision,
51 with respect to installment agreements duly made, executed and filed on
52 or after the date on which this paragraph takes effect, the commissioner
53 of finance may also exclude or thereafter remove from such list any
54 parcel of class three or class four real property as to which an agree-
55 ment has been duly made, executed and filed with such commissioner for
56 the payment of the delinquent taxes, assessments or other legal charges,
S. 8578 396
1 and the interest and penalties thereon, in installments. The first
2 installment thereof shall be paid upon the filing of the installment
3 agreement with the commissioner and shall be in an amount equal to not
4 less than fifteen percent of the total amount of such delinquent taxes,
5 assessments or other legal charges and the interest and penalties there-
6 on. The remaining installments, which shall be twice the number of
7 unpaid quarters of real estate taxes or the equivalent thereof, but
8 which shall in no event exceed twenty in number, shall be payable quar-
9 terly on the first days of July, October, January and April. For the
10 purposes of calculating the number of such remaining installments,
11 unpaid real estate taxes that are due and payable on other than a quar-
12 terly basis shall be deemed to be payable on a quarterly basis.
13 (7) A parcel for which any such installment agreement or agreements
14 have been filed with the commissioner shall be excluded or removed from
15 the list of delinquent taxes before the commencement of the in rem
16 action based upon such list only if the amounts paid pursuant to such
17 agreement exceed the amount required to pay all taxes and charges which
18 render said parcel eligible for inclusion in the in rem action and there
19 has been no default in such agreement prior to the commencement of said
20 action as to either quarterly installments or current taxes, assessments
21 or other legal charges.
22 (8) As a condition to entering into any agreement under this section
23 or section 11-409 of this chapter, the commissioner shall have received
24 from the applicant, an affidavit stating that each tenant located on the
25 parcel has been notified by certified mail that an application for an
26 installment agreement will be made and that a copy of a standard agree-
27 ment form has been included with such notification. Any false statement
28 in such affidavit shall not be grounds to cancel the agreement or affect
29 its validity in any way.
30 d. Two duplicate originals thereof, verified by the commissioner of
31 finance or a subordinate designated by the commissioner, shall be filed
32 in the office of the clerk of the county in which the parcels listed
33 therein are situated. Such filing shall constitute and have the same
34 force and effect as the filing and recording in such office of an indi-
35 vidual and separate notice of pendency of action and as the filing in
36 the supreme court in such county of an individual and separate complaint
37 by the city as to each parcel described in said list, to enforce the
38 payment of the delinquent taxes, assessments or other lawful charges
39 which have accumulated and become liens against such parcels.
40 e. Each county clerk with whom such a list of delinquent taxes is
41 filed shall, on the date of said filing, place and thereafter maintain
42 one duplicate original copy thereof, as separately and permanently bound
43 by the commissioner of finance, adjacent to and together with the block
44 index of notices of pendency of action and each county clerk shall, on
45 the date of said filing or as soon thereafter as with due diligence is
46 practicable, docket the parcels contained in the list of delinquent
47 taxes in said block index of notices of pendency of action, which shall
48 constitute due filing, recording and indexing of the separate notices
49 constituting said list of delinquent taxes in lieu of any other require-
50 ment under rule sixty-five hundred eleven of the civil practice law and
51 rules or otherwise.
52 f. The commissioner of finance shall file a copy of each list of
53 delinquent taxes, certified as such copy by him or her or a subordinate
54 designated by the commissioner, in the office of the corporation coun-
55 sel.
S. 8578 397
1 g. The validity of any proceeding hereunder shall not be affected by
2 any omission or error of the commissioner of finance in including or
3 excluding parcels from any such list or in the designation of a street
4 or street number or by any other similar omission or error.
5 § 11-406 Public notice of foreclosure. a. Upon the filing of a list of
6 delinquent taxes in the office of the county clerk, the commissioner of
7 finance forthwith shall cause a notice of foreclosure to be published at
8 least once a week for six successive weeks in the City Record and,
9 subject to section ninety-one of the judiciary law, in two newspapers,
10 one of which may be a law journal, to be designated by the commissioner
11 of finance, which are published in and are circulated throughout the
12 county in which the affected property is located. If there are no news-
13 papers published in such county, the commissioner of finance may desig-
14 nate newspapers published in the city of Staten Island which are circu-
15 lated throughout the affected county.
16 b. Such notice shall clearly indicate that it is a notice of foreclo-
17 sure of tax liens; the section of a tax map or portion of a section of a
18 tax map in which the properties subject to foreclosure are located and
19 where the area affected by the action includes less than all parcels in
20 a section of a tax map or portion of a section of a tax map, the partic-
21 ular class or classes contained therein, and by a general description
22 which need not contain measurements and direction; where and when the
23 list of delinquent taxes was filed; the general nature of the informa-
24 tion contained in the list; that the filing of the list constitutes
25 commencement of a foreclosure action by the city in the supreme court
26 for the particular county and a notice of pendency of action against
27 each parcel listed; that such action is against the property only and no
28 personal judgment will be entered; that the list will be available for
29 inspection at the city collector's central office and at the borough
30 office of the city collector in which said property is located until a
31 specified date at least ten weeks after the date of first publication;
32 that until such date a parcel may be redeemed by paying all taxes and
33 charges contained in said list of delinquent taxes together with inter-
34 est and penalties thereon; that during said period of redemption and for
35 an additional period of twenty days after said last date for redemption
36 any person having any interest in or lien upon a parcel on the list may
37 file with the appropriate county clerk and serve upon the corporation
38 counsel a verified answer setting forth in detail the full name of said
39 answering party, the nature and amount of his or her interest or lien
40 and any legal defense against foreclosure; and that in the absence of
41 redemption or answer a judgment of foreclosure may be taken by default.
42 c. On or before the date of the first publication of such notice, the
43 commissioner of finance shall cause a copy of the notice to be mailed to
44 all owners, mortgagees, lienors or encumbrancers, who may be entitled to
45 receive such notice by virtue of any owner's registration or in rem card
46 filed in the office of the city collector pursuant to section 11-416 or
47 11-417 of this chapter. If such owner's registration or in rem cards
48 have not been filed in the office of the city collector then said notice
49 shall be mailed to the name and address, if any, appearing in the latest
50 annual record of assessed valuations. The commissioner of finance shall
51 cause to be inserted with such notice a statement substantially in the
52 following form:
53 "To the party to whom the enclosed notice is addressed: You are the
54 presumptive owner or lienor of one or more of the parcels mentioned and
55 described in the list referred to in the attached notice. Unless the
56 taxes and assessments and all other legal charges are paid, or an answer
S. 8578 398
1 is interposed; or an arrangement is made for payment of such taxes and
2 assessments and all other legal charges in installments, as provided by
3 statute, the ownership of said property will in due course pass to the
4 city of Staten Island as provided by the administrative code of the city
5 of Staten Island."
6 The failure of the commissioner of finance to mail such notice shall
7 not affect the validity of any proceeding brought pursuant to this chap-
8 ter as to any parcel other than the parcel with respect to which notice
9 was not mailed.
10 d. The commissioner of finance shall cause a copy of such notice to be
11 posted in the office of the commissioner of finance, in the county
12 courthouse of the county in which the property subject to such tax lien
13 is situated and at three other conspicuous places in the city in which
14 the affected properties are located.
15 § 11-407 Redemption. a. After the filing of a list of delinquent taxes
16 and until a date at least ten weeks after the first publication of the
17 public notice of foreclosure, as determined by the commissioner of
18 finance and specified in the said notice, a person claiming to have an
19 interest in any parcel in said list may redeem it by paying all taxes
20 and charges contained in said list of delinquent taxes together with
21 interest and penalties thereon.
22 b. Upon such redemption the commissioner of finance shall deliver to
23 the corporation counsel a certificate of redemption. The corporation
24 counsel shall file such certificate with the clerk of the county in
25 which said list was filed. The filing of such certificate shall consti-
26 tute and be deemed a discontinuance of the in rem action as to the
27 affected parcel, and the county clerk shall thereupon note such redemp-
28 tion and discontinuance in the copy of the list of delinquent taxes
29 maintained by him or her adjacent to the county clerk's block index of
30 notices of pendency of action and shall cancel and discharge any
31 notations of the filing of said list of delinquent taxes as to said
32 parcel that may appear in any other books, records, indices and dockets
33 maintained in said clerk's office. The commissioner of finance shall
34 also deliver a duplicate original certificate of redemption to the
35 person who has redeemed.
36 c. When the time to redeem in an in rem tax foreclosure action has
37 expired, any person claiming to have an interest in a parcel included in
38 said action shall have the right to make a late redemption payment to
39 the commissioner of finance. Such late redemption payment shall consist
40 of all taxes and charges owing on said parcel, the lawful interest ther-
41 eon to the date of payment and a penalty of five percent of said payment
42 of taxes, charges and interest, which penalty may not exceed one thou-
43 sand dollars as to each parcel on which a late redemption payment is
44 being made. Such late redemption payment shall be made in cash or by
45 certified or bank check and shall be accepted by the commissioner of
46 finance at any time after the last day to redeem up to the date on which
47 the commissioner is advised by the corporation counsel that the prepara-
48 tion of the judgment of foreclosure in the in rem action has been
49 commenced. Upon receipt of such late redemption payment, the commission-
50 er of finance shall issue a certificate of withdrawal pursuant to the
51 provisions of section 11-413 of this chapter.
52 § 11-408 Filing of affidavits. All affidavits of filing, publication,
53 posting, mailing or other acts required by this chapter shall be made by
54 the person or persons performing such acts and shall be filed in the
55 office of the county clerk of the county in which the property subject
56 to such tax lien is situated and shall together with all other documents
S. 8578 399
1 required by this chapter to be filed in the office of such county clerk,
2 constitute and become a part of the judgment roll in such foreclosure
3 action.
4 § 11-409 Severance and trial of issues where answer is interposed;
5 installment agreements authorized after action commenced. a. If a duly
6 verified answer is served upon the corporation counsel not later than
7 twenty days after the last date for redemption, the answering defendant
8 shall have the right to a severance of the action, as to any parcel in
9 which the defendant has pleaded an interest, upon written demand there-
10 for filed with or made a part of his or her answer.
11 b. When such answer is interposed, the court shall summarily hear and
12 determine the issues raised by the complaint and answer in the same
13 manner as it hears and determines other actions, except as herein other-
14 wise provided. Proof that the taxes which made said property subject to
15 foreclosure hereunder together with interest and penalties thereon, were
16 paid before filing of the list of delinquent taxes or that the property
17 was not subject to tax shall constitute a complete defense.
18 c. No counterclaim may be asserted in an answer interposed in an
19 action brought pursuant to this chapter. Where a counterclaim is
20 asserted in an in rem answer the city may disregard that portion of the
21 answer and shall suffer no legal penalty or impediment in the prose-
22 cution of its in rem action for its failure to reply or respond thereto.
23 Where an answer contains only a counterclaim and no other defenses the
24 city may proceed to judgment of foreclosure against the property
25 affected without the need for moving against the answer.
26 d. When a verified answer alleges a substantial equity over the city's
27 lien for taxes, the defendant may demand additional time in which to pay
28 the taxes and interest or to have the property sold with all taxes and
29 interest to be paid out of the proceeds of such sale. Upon such demand a
30 defendant shall have the right to an extension of time for such purpose
31 not in excess of six months from the last day to interpose an answer.
32 Where a mortgagee or lienor who has interposed such answer commences a
33 proceeding to foreclose his or her mortgage or lien and it appears that
34 with due diligence such proceeding cannot be concluded in time to allow
35 the payment of taxes within the aforesaid six month period, the court
36 may, on application before the end of said six month period, authorize
37 an additional period during which such proceeding may be concluded and
38 the taxes, together with interest and penalties, paid.
39 e. Where an answer of the type described in subdivision d of this
40 section is interposed and taxes are paid within the period set forth in
41 such subdivision, the commissioner of finance shall issue a certificate
42 of withdrawal as to the property on which such payment has been made
43 pursuant to the provisions of section 11-413 of this chapter. When taxes
44 are not paid within the period set forth in subdivision d of this
45 section, it shall be deemed that there was no equity over the city's tax
46 liens and the answer shall be deemed to be without merit. The city in
47 that event may proceed to judgment of foreclosure against such property
48 without moving against the answer.
49 f. All answers interposed in an action hereunder and all affidavits
50 and other papers pertaining to any litigation involving such answers or
51 to any proceeding brought pursuant to this chapter involving less than
52 an entire action shall bear a caption containing the in rem action
53 number of the city's tax foreclosure proceeding, the section of a tax
54 map or portion of a section of a tax map affected, and if the action
55 covers less than all parcels in the section of a tax map or portion of a
S. 8578 400
1 section of a tax map, the particular class or classes, and the serial,
2 section, block and lot numbers of the parcel or parcels in issue.
3 g. The corporation counsel, when submitting an in rem judgment roll
4 pursuant to the provisions of this chapter, may request a severance as
5 to any parcel on which an in rem answer or litigation is pending, or as
6 to which, before the preparation of said in rem judgment roll is
7 commenced, an agreement was duly made, executed and filed with the
8 commissioner of finance for the payment of the delinquent taxes, assess-
9 ments or other legal charges and interest and penalties in installments
10 as provided in subdivision c of section 11-405 of this chapter and there
11 has been no default in such agreement as to either quarterly install-
12 ments or current taxes, assessments or other legal charges. Where such
13 an agreement is entered into subsequent to the last date for redemption
14 specified in subdivision a of section 11-407 of this chapter, there
15 shall be paid to the commissioner of finance at the time the aforesaid
16 agreement is executed an amount equal to the penalty which would have
17 been payable under subdivision c of section 11-407 of this chapter had
18 the person executing the agreement made a late redemption payment. Such
19 amount shall be in addition to any installment payments required to be
20 made under the agreement and shall not be credited against any such
21 installment payments. Where a default occurs in such agreement as to
22 either quarterly installments or current taxes, assessments or other
23 legal charges, all payments made under the agreement shall be forfeited
24 and the city shall be entitled to acquire the parcel as to which the
25 default occurred. Where such default occurs before the submission of the
26 judgment roll, the parcels as to which such default occurs shall be
27 included in said judgment roll among the parcels to be acquired by the
28 city. Where such default has occurred as to a parcel severed pursuant to
29 this subdivision, the corporation counsel shall cause to be entered a
30 supplemental judgment of foreclosure as to such parcel immediately on
31 notification by the commissioner of finance of such default. Where such
32 installment agreement is paid in full the commissioner of finance shall
33 discontinue the in rem action from which said parcel was severed by
34 issuing a certificate of withdrawal as to said parcel pursuant to the
35 provisions of section 11-413 of this chapter.
36 h. A party who has interposed an answer as to any parcel included in
37 an in rem tax foreclosure action, or any other party interested in such
38 parcel, shall have the right, at any time prior to the final disposition
39 of a motion to strike said answer, to pay all taxes, assessments and
40 other legal charges and interest owing on said parcel. An answering
41 party who makes such payment shall not be required to pay any penalty.
42 Where such payment is made by other than an answering party after the
43 expiration of the period of redemption, there shall be paid to the
44 commissioner of finance an additional amount equal to the penalty paya-
45 ble under subdivision c of section 11-407 of this chapter. Where all
46 delinquent taxes, assessments and other legal charges together with
47 lawful interest thereon and penalties, where required, are paid, the
48 commissioner of finance shall issue a certificate of withdrawal as to
49 said parcel pursuant to the provisions of section 11-413 of this chap-
50 ter. Said parties may also pay such taxes, assessments and other legal
51 charges and interest by an installment agreement. Where such agreement
52 is requested before the preparation of the aforesaid in rem judgment
53 roll is commenced, the terms of said agreement shall be consistent with
54 the provisions of subdivision g or i of this section, whichever is
55 applicable. Where such agreement is requested after judgment of foreclo-
56 sure has been entered in the in rem action in which the aforesaid answer
S. 8578 401
1 was interposed, said agreement shall require a first installment of
2 fifty percent of all taxes, assessments and other legal charges and
3 interest owing on said parcel, a penalty of five percent of all such
4 taxes, assessments and other legal charges and interest, which penalty
5 may not exceed one thousand dollars, and the payment of the balance of
6 such taxes, assessments and other legal charges and interest in four
7 equal quarterly installments together with all current taxes, assess-
8 ments and other legal charges that accrue during such period. The
9 request of an answering party for an installment agreement shall consti-
10 tute a withdrawal of such party's answer. An installment agreement
11 requested by an interested party other than the answering party shall
12 require the consent of said answering party which shall also constitute
13 a withdrawal of such party's answer. The severance provided for in this
14 section shall be continued during the term of all installment agreements
15 entered into pursuant to the provisions of this subdivision. Where a
16 default has occurred as to a parcel severed pursuant to this subdivi-
17 sion, the corporation counsel shall cause to be entered a supplemental
18 judgment of foreclosure as to such parcel immediately on notification by
19 the commissioner of finance of such default. Where such installment
20 agreement is paid in full, the commissioner of finance shall discontinue
21 the in rem action from which said parcel was severed by issuing a
22 certificate of withdrawal as to said parcel pursuant to the provisions
23 of section 11-413 of this chapter.
24 i. (1) Notwithstanding subdivision g of this section, this subdivision
25 shall apply with respect to installment agreements made, executed and
26 filed with the commissioner of finance on or after the date on which
27 this subdivision takes effect. An installment agreement pursuant to this
28 subdivision may be made, executed and filed with such commissioner
29 during the period beginning on the date on which an action is commenced
30 as provided in subdivision d of section 11-405 of this chapter with
31 respect to the parcel that is the subject of such agreement and ending
32 on the date on which such commissioner is advised by the corporation
33 counsel that the preparation of the judgment of foreclosure in such in
34 rem action has been commenced. Notwithstanding anything to the contrary,
35 and except to the extent provided in paragraph two of this subdivision,
36 the provisions of paragraphs one through six of subdivision c of section
37 11-405 of this chapter shall not apply to any installment agreement
38 requested on or after the date on which this subdivision takes effect
39 and on or after the date on which an action is commenced as provided in
40 subdivision d of such section 11-405 with respect to the parcel that is
41 the subject of such requested agreement.
42 (2) An agreement entered into pursuant to this subdivision shall
43 provide for the payment in installments of the delinquent taxes, assess-
44 ments and other legal charges, and the interest and penalties thereon,
45 due and owing as of the date on which such agreement is requested.
46 Unless an eligible owner or other interested person requests an agree-
47 ment pursuant to the provisions of paragraph three of this subdivision,
48 the terms of such agreement with respect to a parcel shall be the same
49 as the terms that would be applicable to such parcel under paragraph
50 four, five or six, as the case may be, of subdivision c of section
51 11-405 of this chapter, except that, for purposes of the agreement
52 pursuant to this paragraph, the amount of the first installment shall be
53 equal to: (i) fifteen percent of the total amount due in the case of a
54 parcel described in paragraph four of subdivision c of section 11-405 of
55 this chapter; (ii) twenty percent of the total amount due in the case of
56 a parcel described in paragraph five of subdivision c of section 11-405
S. 8578 402
1 of this chapter; and (iii) twenty-five percent of the total amount due
2 in the case of a parcel described in paragraph six of subdivision c of
3 section 11-405 of this chapter.
4 (3) Instead of an agreement pursuant to paragraph two of this subdivi-
5 sion, an eligible owner or other interested party may request an agree-
6 ment pursuant to the following provisions:
7 (i) With respect to a parcel that is owned by a company organized
8 pursuant to article eleven of the state private housing finance law with
9 the consent and approval of the department of housing preservation and
10 development, such agreement shall provide for the payment in install-
11 ments of the delinquent taxes, assessments and other legal charges, and
12 the interest and penalties thereon, due and owing as of the date on
13 which such agreement is requested. The first installment thereof shall
14 be paid upon the filing of the installment agreement with the commis-
15 sioner of finance and shall be in an amount at least equal to, at the
16 applicant's election, either thirty-five percent or fifty percent of the
17 total amount of such delinquent taxes, assessments or other legal charg-
18 es and the interest and penalties thereon. The remaining installments,
19 which shall be three times the number of unpaid quarters of real estate
20 taxes or the equivalent thereof, but which shall in no event exceed
21 thirty-two in number, shall be payable quarterly on the first days of
22 July, October, January and April, together with interest at the rate or
23 rates determined as provided in subparagraph (iv) of this paragraph. For
24 the purposes of calculating the number of such remaining installments,
25 unpaid real estate taxes that are due and payable on other than a quar-
26 terly basis shall be deemed to be payable on a quarterly basis.
27 (ii) With respect to a parcel, other than a parcel described in
28 subparagraph (i) of this paragraph, that is a residential building
29 containing not more than five residential units, a residential condomin-
30 ium unit or a residential building held in a cooperative form of owner-
31 ship, such agreement shall provide for the payment in installments of
32 the delinquent taxes, assessments and other legal charges, and the
33 interest and penalties thereon, due and owing as of the date on which
34 such agreement is requested. The first installment thereof shall be paid
35 upon the filing of the installment agreement with the commissioner of
36 finance and shall be in an amount at least equal to, at the applicant's
37 election, either twenty-five percent or fifty percent of the total
38 amount of such delinquent taxes, assessments or other legal charges and
39 the interest and penalties thereon. The remaining installments, which
40 shall be three times the number of unpaid quarters of real estate taxes
41 or the equivalent thereof, but which shall in no event exceed twenty in
42 number, shall be payable quarterly on the first days of July, October,
43 January and April together with interest at the rate or rates determined
44 as provided in subparagraph (iv) of this paragraph. For the purposes of
45 calculating the number of such remaining installments, unpaid real
46 estate taxes that are due and payable on other than a quarterly basis
47 shall be deemed to be payable on a quarterly basis.
48 (iii) With respect to any parcel of class one or class two real prop-
49 erty, other than a parcel described in subparagraph (i) or (ii) of this
50 paragraph, such agreement shall provide for the payment in installments
51 of the delinquent taxes, assessments and other legal charges, and the
52 interest and penalties thereon, due and owing as of the date on which
53 such agreement is requested. The first installment thereof shall be paid
54 upon the filing of the installment agreement with the commissioner of
55 finance and shall be in an amount at least equal to, at the applicant's
56 election, either thirty-five percent or fifty percent of the total
S. 8578 403
1 amount of such delinquent taxes, assessments or other legal charges and
2 the interest and penalties thereon. The remaining installments, which
3 shall be twice the number of unpaid quarters of real estate taxes or the
4 equivalent thereof, but which shall in no event exceed twenty in number,
5 shall be payable quarterly on the first days of July, October, January
6 and April, together with interest at the rate or rates determined as
7 provided in subparagraph (iv) of this paragraph. For the purposes of
8 calculating the number of such remaining installments, unpaid real
9 estate taxes that are due and payable on other than a quarterly basis
10 shall be deemed to be payable on a quarterly basis.
11 (iv) (A) Notwithstanding any higher rate of interest prescribed pursu-
12 ant to applicable law, and unless a lower rate of interest is applicable
13 to a delinquent amount owing on a parcel that is the subject of an
14 agreement pursuant to this paragraph, the interest payable together with
15 the remaining installments due under such agreement shall be:
16 (I) with respect to an agreement for which a twenty-five percent or
17 thirty-five percent down payment was made, calculated at a rate equal to
18 the sum of (a) the rate prescribed for the applicable period pursuant to
19 paragraph (i) of subdivision e of section 11-224.1 of this title and (b)
20 one-half of the difference between such rate and the rate prescribed for
21 such period pursuant to paragraph (ii) of subdivision e of section
22 11-224.1 of this title; or
23 (II) with respect to an agreement for which a fifty percent down
24 payment was made, calculated at a rate equal to the rate prescribed for
25 the applicable period pursuant to paragraph (i) of subdivision e of
26 section 11-224.1 of this title.
27 (B) If a default occurs in any agreement executed pursuant to this
28 paragraph as to either quarterly installments or current taxes, assess-
29 ments or other legal charges, the rates of interest determined under
30 this subparagraph shall thereupon cease to be applicable and the commis-
31 sioner of finance shall thereafter charge, collect and receive interest
32 in the manner and at the rates otherwise prescribed pursuant to law.
33 (4) The corporation counsel, when submitting an in rem judgment roll
34 pursuant to the provisions of this chapter, may request a severance as
35 to any parcel as to which, before the preparation of said in rem judg-
36 ment roll is commenced, an agreement was duly made, executed and filed
37 with the commissioner of finance for the payment of all delinquent
38 taxes, assessments and other legal charges and interest and penalties in
39 installments as provided in this subdivision, and there has been no
40 default in such agreement as to either quarterly installments or current
41 taxes, assessments or other legal charges. Where such an agreement is
42 entered into subsequent to the last date for redemption specified in
43 subdivision a of section 11-407 of this chapter, there shall be paid to
44 the commissioner of finance at the time such agreements are executed an
45 amount equal to the penalty that would have been payable under subdivi-
46 sion c of section 11-407 of this chapter had the person executing the
47 agreement made a late redemption payment. Such amount shall be in addi-
48 tion to any installment payments required to be made under the agreement
49 and shall not be credited against any such installment payments. Where a
50 default occurs in such agreement as to either quarterly installments or
51 current taxes, assessments or other legal charges, all payments made
52 under the agreement shall be forfeited and the city shall be entitled to
53 obtain a judgment hereunder as to the parcel as to which the default
54 occurred. Where such default occurred before the submission of the judg-
55 ment roll, the parcels as to which such default occurs shall be included
56 in said judgment roll amount the parcels to be acquired by the city or
S. 8578 404
1 by a third party. Where such default has occurred as to a parcel severed
2 pursuant to this subdivision, the corporation counsel shall cause to be
3 entered a supplemental judgment of foreclosure as to such parcel imme-
4 diately on notification by the commissioner of finance of such default.
5 Where such installment agreement is paid in full, the commissioner of
6 finance shall discontinue the in rem action from which such parcel was
7 severed by issuing a certificate of withdrawal as to such parcel pursu-
8 ant to the provisions of section 11-413 of this chapter.
9 § 11-410 Preference over other actions. a. Any action brought pursuant
10 to this chapter shall be given preference over all other causes and
11 actions.
12 b. Actions brought pursuant to this chapter shall take precedence over
13 any proceeding brought to foreclose a mortgage or other lien involving
14 the same property. A parcel included in a list of delinquent taxes
15 which is sold in a mortgage foreclosure sale held after said list is
16 filed may not be sold subject to taxes even if judgment has not yet been
17 entered in the tax foreclosure action. All unpaid taxes and interest and
18 penalties thereon must be paid, in full or by installment agreement
19 pursuant to the provisions of this chapter, out of the proceeds of such
20 sale regardless of whether the mortgage foreclosure lis pendens was
21 filed before or after the filing of the tax foreclosure action, regard-
22 less of whether any party to the mortgage foreclosure proceeding has
23 interposed an answer in the tax foreclosure action and regardless of any
24 terms to the contrary in the judgment in the mortgage foreclosure
25 proceeding.
26 § 11-411 Presumption of validity. It shall not be necessary for the
27 city to plead or prove the various steps, procedures and notices for the
28 assessment and levy of the taxes, assessments or other lawful charges
29 against the parcels set forth in the list of delinquent taxes and all
30 such taxes, assessments or other lawful charges and the lien thereof
31 shall be presumed to be valid. A defendant alleging any jurisdictional
32 defect or invalidity in such taxes, assessments or other lawful charges
33 or in the foreclosure thereof must particularly specify in his or her
34 answer such jurisdictional defect or invalidity and must affirmatively
35 establish such defense. A judgment of foreclosure granted in any
36 proceeding brought pursuant to this chapter, which contains recitals
37 that any acts were done or proceedings had which were necessary to give
38 the court jurisdiction or power to grant such judgment of foreclosure,
39 shall be presumptive evidence that such acts were duly performed or
40 proceedings duly had, if such judgment of foreclosure shall have been
41 duly entered or filed in the office of the clerk of the county in which
42 the proceeding was pending and wherein such judgment was granted. The
43 provisions of this chapter shall apply to and be valid and effective
44 with respect to all defendants even though one or more of them be
45 infants, incompetents, absentees or non-residents of the state of New
46 York.
47 § 11-412 Final judgment. a. The court shall determine upon proof and
48 shall make finding upon such proof whether there has been due compliance
49 by the city with the provisions of this chapter.
50 b. The court shall make a final judgment awarding to the city the
51 possession of any parcel described in the list of delinquent taxes not
52 redeemed or withdrawn as provided in this chapter and as to which no
53 answer is interposed as provided herein. In addition thereto, such judg-
54 ment shall contain a direction to the commissioner of finance to
55 prepare, execute and cause to be recorded a deed conveying to the city
56 full and complete title to such lands. Upon the execution of such deed,
S. 8578 405
1 the city shall be seized of an estate in fee simple absolute in such
2 land and all persons, including the state of New York, infants, incompe-
3 tents, absentees and non-residents who may have had any right, title,
4 interest, claim, lien or equity of redemption in or upon such lands
5 shall be barred and forever foreclosed of all such right, title, inter-
6 est, claim, lien or equity of redemption, except as otherwise provided
7 in section 11-424 of this chapter. The appointment and tenure of receiv-
8 ers, trustees or any other persons, including administrators under arti-
9 cle seven-A of the real property actions and proceedings law, appointed
10 by an order of a court to manage real property, shall terminate when
11 title to such property vests in the city pursuant to the provisions of
12 this chapter. After such termination, said receivers, trustees or admin-
13 istrators shall be accountable to the courts that appointed them for the
14 faithful performance of their fiduciary obligations during the term of
15 their appointment and to the city for any rents and income received by
16 them for any period subsequent to the date of the vesting of title in
17 the city.
18 If the city serves a tenant in possession of a dwelling unit with
19 notice of termination of tenancy on grounds other than non-payment of
20 rent, the acceptance of rent for the first forty-five days after termi-
21 nation of tenancy by anyone other than an employee of the department
22 designated by the department to receive such rent shall not be deemed or
23 construed as a waiver of the city's right to initiate and prosecute a
24 proceeding to terminate the tenancy for good cause.
25 c. Every deed given pursuant to the provisions of this section shall
26 be presumptive evidence that the action and all proceedings therein and
27 all proceedings prior thereto from and including the assessment of the
28 lands affected and all notices required by law were regular and in
29 accordance with all provisions of law relating thereto. After two years
30 from the date of the recording of such deed, the presumption shall be
31 conclusive, unless at the time that this subdivision takes effect the
32 two year period since the recording of the deed has expired or less than
33 six months of such period of two years remains unexpired, in which case
34 the presumption shall become conclusive six months after this subdivi-
35 sion takes effect. No action to set aside such deed may be maintained
36 unless the action is commenced and a notice of pendency of the action is
37 filed in the office of the proper county clerk prior to the time that
38 the presumption becomes conclusive as aforesaid.
39 § 11-412.1 Special procedures relating to final judgment and release
40 of class one and class two real property. Notwithstanding any other
41 provision of law to the contrary:
42 a. The court shall determine upon proof and shall make a finding upon
43 such proof whether there has been due compliance by the city with the
44 applicable provisions of this chapter.
45 b. (1) The court shall make a final judgment authorizing the award of
46 possession of any parcel of class one or class two real property
47 described in the list of delinquent taxes not redeemed or withdrawn as
48 provided in this chapter and as to which no answer is interposed as
49 provided herein, and authorizing the commissioner of finance to prepare,
50 execute and cause to be recorded a deed conveying either to the city or
51 to a third party deemed qualified and designated by the commissioner of
52 housing preservation and development full and complete title to such
53 lands. Any such conveyance to a third party shall be for an existing
54 use.
55 (2) Such third party shall be deemed qualified and shall be designated
56 pursuant to such criteria as are established in rules promulgated by the
S. 8578 406
1 commissioner of housing preservation and development, provided, however,
2 that such criteria shall include but not be limited to: residential
3 management experience; financial ability; rehabilitation experience;
4 ability to work with government and community organizations; neighbor-
5 hood ties; and that the commissioner shall consider whether the third
6 party is a responsible legal tenant, not-for-profit organization or
7 neighborhood-based-for-profit individual or organization. The commis-
8 sioner shall not deem qualified any third party who has been finally
9 adjudicated by a court of competent jurisdiction, within seven years of
10 the date on which such third party would otherwise be deemed qualified,
11 to have violated any section of article one hundred fifty, one hundred
12 seventy-five, one hundred seventy-six, one hundred eighty, one hundred
13 eighty-five or two hundred of the penal law or any similar laws of
14 another jurisdiction, or who has been suspended or debarred from
15 contracting with the city or any agency of the city pursuant to section
16 335 of the charter during the period of such suspension or debarment.
17 The rules promulgated by the commissioner pursuant to this paragraph may
18 establish other bases for disqualification of a third party.
19 c. Following the expiration of the four-month period prescribed in
20 subdivision d of this section, but not more than eight months after the
21 date on which, pursuant to subdivision b of this section, the final
22 judgment authorizing the award of possession of a parcel of class one or
23 class two real property was entered, the commissioner of finance may
24 execute a deed, pursuant to subdivision b of this section, with respect
25 to such parcel. The owner of said parcel shall continue to have all of
26 the rights, liabilities, responsibilities, duties and obligations of an
27 owner of such parcel, including, but not limited to, maintaining such
28 parcel in compliance with the housing maintenance, building and fire
29 codes, and all other applicable laws, unless and until the commissioner
30 of finance has prepared and executed a deed conveying to the city or to
31 a third party full and complete title to such parcel. Upon the execution
32 of such deed, the city or the third party shall be seized of an estate
33 in fee simple absolute in such land and all persons, including the state
34 of New York, infants, incompetents, absentees and non-residents who may
35 have had any right, title, interest, claim, lien or equity of redemption
36 in or upon such lands shall be barred and forever foreclosed of all such
37 right, title, interest, claim, lien or equity of redemption, except as
38 otherwise provided in subdivisions e and f of this section. The appoint-
39 ment and tenure of receivers, trustees or any other persons, including
40 administrators under article seven-A of the real property actions and
41 proceedings law, appointed by an order of a court to manage real proper-
42 ty, shall terminate when title to such property vests in the city or a
43 third party pursuant to the provisions of this chapter. After such
44 termination, said receivers, trustees or administrators shall be
45 accountable to the courts that appointed them for the faithful perform-
46 ance of their fiduciary obligations during the term of their appointment
47 and to the city or such third party for any rents and income received by
48 them for any period subsequent to the date of the vesting of title in
49 the city or such third party.
50 If the city serves a tenant in possession of a dwelling unit with
51 notice of termination of tenancy on grounds other than nonpayment of
52 rent, the acceptance of rent for the first forty-five days after termi-
53 nation of tenancy by anyone other than an employee of the department
54 designated by the department to receive such rent shall not be deemed or
55 construed as a waiver of the city's right to initiate and prosecute a
56 proceeding to terminate the tenancy for good cause.
S. 8578 407
1 d. Within four months after the date on which, pursuant to subdivision
2 b of this section, the final judgment authorizing the award of
3 possession of a parcel of class one or class two real property was
4 entered, any person claiming to have an interest in such parcel shall
5 have the right to make a payment to the commissioner of finance consist-
6 ing of all taxes, assessments and other legal charges owing on said
7 parcel, the lawful interest thereon to the date of payment and a penalty
8 of five percent of said payment of taxes, assessments and other legal
9 charges and interest, which penalty may not exceed one thousand dollars.
10 Such payment shall be made in cash or by certified or bank check. Within
11 such four-month period, such interested person may also request an
12 installment agreement from the commissioner of finance. Such agreement
13 shall require, in addition to full payment of the penalty specified in
14 this subdivision at the time such agreement is entered into, the payment
15 at such time of a first installment equal to fifty percent of all taxes,
16 assessments and other legal charges, and the lawful interest thereon,
17 then owing on such parcel, and the payment of the balance of such taxes,
18 assessments and other legal charges and interest in four equal quarterly
19 installments together with all current taxes, assessments and other
20 legal charges that accrue during such period. Upon receipt of payment in
21 full of the amount specified in this subdivision, the commissioner of
22 finance shall direct the corporation counsel to prepare and cause to be
23 entered an order discontinuing the in rem tax foreclosure action as to
24 said property, cancelling the notice of pendency of such action as to
25 said property and vacating and setting aside the final judgment. Upon
26 the execution of an installment agreement and payment of the amounts due
27 at the time such agreement is executed as provided in this subdivision,
28 the commissioner of finance shall direct the corporation counsel to
29 prepare and cause to be entered an order vacating and setting aside the
30 final judgment. The entry of either such order shall restore all
31 parties, including owners, mortgagees and any and all lienors, receivers
32 and administrators and encumbrancers, to the status they held immediate-
33 ly before such final judgment was entered. Where the commissioner of
34 finance approves an application requesting an installment agreement
35 pursuant to this subdivision, the order vacating and setting aside the
36 final judgment shall provide that in the event of any default as to the
37 payment of either quarterly installments or current taxes, assessments
38 or other legal charges during the term of such agreement, all payments
39 under said agreement shall be forfeited and the corporation counsel,
40 immediately upon notification by the commissioner of finance of such
41 default, shall cause to be entered as to such property a supplemental
42 judgment of foreclosure in the in rem action which authorizes the
43 commissioner of finance to prepare, execute and cause to be recorded a
44 deed conveying either to the city or to a third party full and complete
45 title to such lands. Upon the entry of such supplemental judgment, the
46 provisions of subdivisions c through i of this section shall apply in
47 the same manner as such subdivisions would have applied had no payment
48 been made nor installment agreement executed during the four-month peri-
49 od specified in this subdivision.
50 e. 1. If the commissioner of finance has prepared, executed and caused
51 to be recorded a deed conveying to the city full and complete title to a
52 parcel of class one or class two real property acquired by in rem tax
53 foreclosure, the city's interest in such parcel may be released pursuant
54 to this subdivision on the application of any party who has an interest
55 in said parcel as either owner, mortgagee, lienor, or encumbrancer at
56 the time of the city's acquisition thereof where such application is
S. 8578 408
1 made at any time up to sixteen months from the date on which the deed by
2 which the city acquired title to said parcel was recorded.
3 2. Any such application shall be made in writing to the commissioner
4 of general services and shall be verified. It shall contain the informa-
5 tion required pursuant to paragraph one of subdivision b of section
6 11-424 of this chapter, the documents required by subdivision c of such
7 section, and shall be accompanied by the fees required by paragraphs
8 three and six of subdivision b of such section. The fee required by
9 paragraph three of subdivision b of section 11-424 of this chapter shall
10 not be refundable.
11 3. The city's interest in any such parcel shall be released only after
12 payment of the sums of money specified in subdivision d of section
13 11-424 of this chapter.
14 4. The provisions contained in subdivision g of section 11-424 of this
15 chapter shall govern such an application, except as follows:
16 (a) where such provisions are inconsistent with the provisions
17 contained in this subdivision, the provisions contained in this subdivi-
18 sion shall govern such application; and
19 (b) where the in rem foreclosure release board denies a written
20 request for an installment agreement that was filed in connection with
21 an application for release of the city's interest in a parcel of class
22 one or class two real property and such application was filed within
23 thirty days of the date of the city's acquisition of the property sought
24 to be released, the board may, in its discretion, authorize a release of
25 the city's interest, provided that the applicant thereafter pays all the
26 amounts required to be paid pursuant to subdivision d of section 11-424
27 of this chapter within thirty days of the date on which a letter
28 requesting such payment is mailed or delivered to such applicant.
29 5. Upon receipt of all the amounts required to be paid pursuant to
30 this subdivision, the commissioner of finance shall direct the corpo-
31 ration counsel to prepare and cause to be entered an order discontinuing
32 the in rem tax foreclosure action as to said property, cancelling the
33 notice of pendency of such action as to said property and vacating and
34 setting aside the final judgment entered pursuant to subdivision b of
35 this section and the deed executed and recorded pursuant to such final
36 judgment as to said property. The entry of such order shall restore all
37 parties, including owners, mortgagees and any and all lienors, receivers
38 and administrators and encumbrancers, to the status they held immediate-
39 ly before the final judgment was entered, as if the in rem tax foreclo-
40 sure had never taken place, and shall render said property liable for
41 all taxes, deficiencies, management fees and liens which shall accrue
42 subsequent to those paid in order to obtain the release provided for in
43 this subdivision, or which were, for whatever reason, omitted from the
44 payment made to obtain said release.
45 f. If the commissioner of finance has prepared, executed and caused to
46 be recorded a deed conveying to the city full and complete title to a
47 parcel of class one or class two real property acquired by in rem tax
48 foreclosure and such parcel is entitled to an exemption under any of the
49 provisions of article four of the real property tax law during all or
50 part of the period covered by the tax items appearing on a list of
51 delinquent taxes, the owner of such parcel may apply for a release of
52 the city's interest in such exempt property under the provisions of
53 subdivision e of this section during the period of time set forth in
54 paragraph one of such subdivision and for an additional period up to ten
55 years from the date on which the deed by which the city acquired title
56 to said property was recorded. The application of such owner shall be
S. 8578 409
1 accompanied by the nonrefundable fee required by paragraph four of
2 subdivision b of section 11-424 of this chapter and shall contain, in
3 addition to the statements, searches and proofs required by subdivision
4 e of this section, a statement that an exemption under the real property
5 tax law is being claimed. Such application shall also state either that
6 it is accompanied by the written certificate of the comptroller setting
7 forth the precise period during which said property, while owned by such
8 application, and during the period after the city's acquisition up to
9 the date of the certificate if said property was still being used for an
10 exempt purpose after said acquisition, was entitled to an exemption and
11 the exact nature and extent of such exemption or that an application for
12 such written certificate has been filed with the comptroller. On issuing
13 such written certificate, the comptroller shall cancel those tax items
14 which have accrued during the period covered by the certificate to the
15 extent the applicant is entitled to an exemption as set forth in the
16 certificate. A release of the city's interest may be authorized only at
17 the discretion of the in rem foreclosure release board and, except as
18 otherwise provided in paragraph four of subdivision e of this section,
19 subject to all the restrictions set forth in subdivision g of section
20 11-424 of this chapter. A release to an exempt applicant shall be
21 effected only after said applicant has paid all of the amounts required
22 to be paid by subdivision d of section 11-424 of this chapter, except
23 for those tax items which have been canceled, in whole or in part,
24 pursuant to the comptroller's certificate, within thirty days of the
25 date on which the letter requesting payment is mailed or delivered to
26 the applicant.
27 g. If the commissioner of finance has prepared, executed and caused to
28 be recorded a deed conveying to the city or to a third party full and
29 complete title to a parcel of class one or class two real property
30 acquired by in rem tax foreclosure, the provisions contained in subdivi-
31 sions f and i of section 11-424 of this chapter for the release of prop-
32 erty so acquired shall not be available. If the commissioner of finance
33 has prepared, executed and caused to be recorded a deed conveying to a
34 third party full and complete title to a parcel of class one or class
35 two real property acquired by in rem tax foreclosure, the provisions
36 contained in subdivisions e and f of this section for the release of
37 property so acquired shall not be available.
38 h. Every deed given pursuant to the provisions of this section shall
39 be presumptive evidence that the action and all proceedings therein and
40 all proceedings prior thereto from and including the assessment of the
41 lands affected and all notices required by law were regular and in
42 accordance with all provisions of law relating thereto. After four
43 months from the date of entry of the final judgment authorizing the
44 award of possession of any parcel of class one or class two real proper-
45 ty pursuant to the provisions of this section, the presumption shall be
46 conclusive. No action to set aside such deed may be maintained unless
47 the action is commenced and a notice of pendency of the action is filed
48 in the office of the property county clerk prior to the time that the
49 presumption becomes conclusive as aforesaid. Should any lawsuit or
50 proceeding be commenced to set aside a deed conveying to a third party a
51 parcel of class one or class two real property pursuant to the
52 provisions of this section, such third party shall send to the corpo-
53 ration counsel within ten days of their receipt a copy of any papers
54 served on such third party in such lawsuit or proceeding.
55 i. If the commissioner of finance does not execute a deed conveying to
56 the city or to a third party a parcel of class one or class two real
S. 8578 410
1 property within eight months after the entry of final judgment authoriz-
2 ing the award of possession of such parcel pursuant to subdivision b of
3 this section, the commissioner of finance shall direct the corporation
4 counsel to prepare and cause to be entered an order discontinuing the in
5 rem foreclosure action as to said property, canceling the notice of
6 pendency of such action as to said property and vacating and setting
7 aside said final judgment. The entry of such order shall restore all
8 parties, including owners, mortgagees and any and all lienors, receivers
9 and administrators and encumbrancers, to the status they held immediate-
10 ly before such final judgment was entered.
11 j. If the commissioner of finance directs the corporation counsel,
12 pursuant to subdivision i of this section, to prepare and cause to be
13 entered an order discontinuing the in rem foreclosure action with
14 respect to a parcel of class one or class two real property determined
15 to be distressed pursuant to section 11-401.1 of this chapter, the
16 commissioner of housing preservation and development shall evaluate the
17 parcel determined to be distressed and take such action as he or she
18 deems appropriate under the programs, existing at the time of such eval-
19 uation, that are designed to encourage the rehabilitation and preserva-
20 tion of existing housing, and shall monitor or cause to be monitored the
21 status of the property. The commissioner of housing preservation and
22 development shall maintain a register of properties determined to be
23 distressed.
24 § 11-412.2 Council review of conveyance to a third party. The commis-
25 sioner of finance shall, prior to the execution of a deed conveying full
26 and complete title of any parcel of class one or class two real property
27 to a third party pursuant to subdivision c of section 11-412.1 of this
28 chapter, notify the council of the proposed conveyance. Within forty-
29 five days of such notification, the council may act by local law disap-
30 proving the proposed conveyance. In the event the council does not act
31 by local law within such forty-five day period, the council shall be
32 deemed to have approved the proposed conveyance. During such forty-five
33 day period or, if the city council acts by local law pursuant to this
34 section, during the period of time from the notification of the council
35 to the presentation to the mayor of such local law and during any addi-
36 tional period of time prescribed in section 37 of the charter, the
37 eight-month period provided in subdivisions c and i of section 11-412.1
38 of this chapter shall be tolled.
39 § 11-413 Withdrawal of parcels from foreclosure. a. The commissioner
40 of finance may, prior to final judgment, withdraw a parcel from a
41 proceeding under this chapter for any of the following reasons, (1) a
42 question which the commissioner deems meritorious has been raised as to
43 the validity of the tax liens affecting the parcel, (2) the city collec-
44 tor has accepted a payment of all taxes and interest which rendered the
45 parcel subject to foreclosure hereunder because the records in the
46 commissioner's office indicated that the principal amount of such taxes
47 was exceeded by the principal amount of subsequent taxes which would not
48 have rendered the parcel subject to foreclosure hereunder and which had
49 been paid prior to the commencement of said proceeding or (3) in cases
50 where the tax foreclosure action cannot be maintained such as, but not
51 limited thereto, where the charges which rendered a parcel subject to
52 foreclosure hereunder have been cancelled or were paid before the
53 commencement of the foreclosure proceeding but such payment was not
54 reported or did not clear for payment until after the commencement of
55 said proceeding, or where a name and address appearing on an owner's
56 registration card or an in rem card filed pursuant to section 11-416 or
S. 8578 411
1 11-417 of this chapter and contained in the files of the city collector
2 did not appear in the mailing list used by the commissioner of finance
3 for mailing notices of foreclosure in such proceeding.
4 b. To effectuate such withdrawal the commissioner of finance shall
5 deliver a certificate of withdrawal to the corporation counsel who shall
6 file it in the office of the county clerk in which the list of delin-
7 quent taxes was filed. The filing of such certificate with such county
8 clerk shall effect a discontinuance of the tax foreclosure action as to
9 the affected parcel, and the county clerk shall thereupon note such
10 withdrawal and discontinuance in the copy of the list of delinquent
11 taxes maintained by him or her adjacent to the county clerk's block
12 index of notices of pendency of action and shall cancel and discharge
13 any and all notations of the filing of said list of delinquent taxes as
14 to said parcel that may appear in any other books, records, indices and
15 dockets maintained in said clerk's office.
16 c. The commissioner of finance shall also deliver a duplicate original
17 certificate of withdrawal to the person entitled to such withdrawal.
18 d. The commissioner of finance shall recite the parcels so withdrawn
19 and the reasons for withdrawal in an affidavit of regularity to be
20 submitted by the commissioner in each action brought pursuant to this
21 chapter.
22 e. The commissioner of finance shall issue a certificate of withdrawal
23 whenever taxes and interest are paid, cancelled, liquidated or otherwise
24 lawfully disposed of as to any parcel which was previously severed
25 pursuant to section 11-409 of this chapter because an answer or liti-
26 gation was pending.
27 § 11-414 Right of redemption not diminished. The period of time in
28 which any owner of, or other person having an interest in a parcel of
29 property may redeem from a sale of a transfer of tax lien is not hereby
30 diminished nor shall such period of time be diminished by the commence-
31 ment of any action brought pursuant to this chapter.
32 § 11-415 Priority of liens. Tax liens shall rank in priority as may
33 now, or as may hereafter, be provided by law.
34 § 11-416 Owner's registration cards; mailing tax bills and notices to
35 registered owners or their designees. a. The commissioner of finance
36 shall maintain a file of owner's registration cards submitted by owners
37 of real property. Each such owner's registration card shall be signed by
38 the owner or a duly authorized representative and shall state the date
39 on which it was filed, the owner's full name and post office address and
40 a description of the premises by reference to the section, block, and
41 lot numbers on the tax map.
42 b. The commissioner of finance shall mail bills for taxes, charges and
43 assessments to all owners who have filed owner's registration cards as
44 herein provided, but the failure of the commissioner of finance so to
45 mail such bill shall not invalidate or otherwise affect the tax, charge
46 or assessment represented thereby nor prevent the accruing of any inter-
47 est or penalty imposed for the non-payment thereof, nor prevent or stay
48 proceedings under this chapter, nor effect the title of the plaintiff or
49 any purchaser under such proceedings.
50 c. The commissioner of finance shall also mail notice of foreclosure
51 and any other process required by this chapter to all owners who have
52 filed owner's registration cards whenever the parcels as to which such
53 cards were filed are included in a list of delinquent taxes filed pursu-
54 ant to this chapter. The failure to receive such notice or process as
55 herein provided shall not affect the validity of any action or proceed-
56 ing brought pursuant to this chapter.
S. 8578 412
1 d. An owner who files an owner's registration card may also designate
2 thereon the full name and post office address of a mortgagee, lienor or
3 other person to receive bills and notices. Where such designation is
4 made, the commissioner of finance shall not mail any bills and notices
5 to the owner but shall mail all bills and notices to the owner's desig-
6 nee.
7 § 11-417 In rem cards; mailing notices to other interested persons.
8 a. The commissioner of finance shall, in addition to the file maintained
9 by him or her pursuant to section 11-416 of this chapter, maintain a
10 file of in rem cards submitted by any person having an interest in real
11 property who is not entitled to have tax bills mailed to him or her by
12 the commissioner of finance, including mortgagees, lienors, encumbranc-
13 ers and owners who have filed owner's registration cards designating
14 someone else to receive bills and notices. Each such in rem card shall
15 be signed by the person filing such card or a duly authorized represen-
16 tative, shall contain a description of the premises by reference to the
17 section, block and lot numbers on the tax map and shall state the date
18 on which said card was filed, the full name and post office address of
19 the person filing said card and the nature of the interest said person
20 has in said premises.
21 b. The commissioner of finance shall mail a notice of foreclosure and
22 any other process required by this chapter to each person who has filed
23 an in rem card whenever the parcels to which such cards refer are
24 included in a list of delinquent taxes filed pursuant to this chapter.
25 However, failure to receive such notice or process shall not affect the
26 validity of any proceeding brought pursuant to this chapter.
27 § 11-418 Writ of assistance. The city, after acquiring title to prem-
28 ises under and pursuant to the terms and provisions of this chapter,
29 shall be entitled to a writ of assistance, with the same force and
30 effect as if the city had acquired the property by virtue of a mortgage
31 foreclosure.
32 § 11-419 Consolidation of actions. Actions or proceedings pending in
33 the courts, or otherwise, to cancel a sale of a tax lien on lands a lien
34 upon which is being foreclosed by action under this chapter, shall be
35 terminated upon the institution of a foreclosure action pursuant to this
36 chapter, and the rights and remedies of the parties in interest to such
37 pending actions or proceedings shall be determined by the court in such
38 foreclosure action.
39 § 11-420 Lands held for public use; right of sale. Whenever the city
40 shall become vested with the title to lands by virtue of a foreclosure
41 proceeding brought pursuant to the provisions of this chapter, such
42 lands shall, unless actually used for other than municipal purposes, be
43 deemed to be held by the city for a public use but for a period of not
44 more than three years from the date of the final judgment. The city is
45 hereby authorized to sell and convey such lands in the manner provided
46 by law for the sale and conveyance of other real property held and owned
47 by the city and not otherwise.
48 § 11-421 Certificate of sale as evidence. The transfer of tax lien or
49 any other written instrument representing a tax lien shall be presump-
50 tive evidence in all courts in all proceedings under this chapter by and
51 against the purchaser and his or her representatives, heirs and assigns,
52 of the truth of the statements therein, of the title of the purchaser to
53 the property therein described, and of the regularity and validity of
54 all proceedings had in reference to the taxes, assessments or other
55 legal charges for the nonpayment of which the tax lien was sold and the
56 sale thereof. After two years from the issuance of such certificate or
S. 8578 413
1 other written instrument, no evidence shall be admissible in any court
2 in a proceeding under this chapter to rebut such presumption unless the
3 holder thereof shall have procured such transfer of tax lien or such
4 other written instrument by fraud or had previous knowledge that it was
5 fraudulently made or procured.
6 § 11-422 Deed in lieu of foreclosure. The city may when authorized by
7 resolution of the successor agency, officer or employee of the former
8 board of estimate and in lieu of prosecuting an action to foreclose a
9 tax lien on any parcel pursuant to this chapter accept a conveyance of
10 the interest of any person having any right, title, interest, claim,
11 lien or equity of redemption in or to such parcel.
12 § 11-423 Sales and foreclosures of tax liens. Notwithstanding any of
13 the provisions of this chapter the city may continue to sell tax liens,
14 transfer the same to purchasers and become the purchaser at such sales
15 of tax liens in the manner provided by this title.
16 § 11-424 Application to the city for release of property acquired by
17 in rem tax foreclosure. a. (1) The city's interest in property acquired
18 by in rem tax foreclosure may be released pursuant to this section on
19 the application of any party who had an interest in said property as
20 either owner, mortgagee, lienor or encumbrancer at the time of the
21 city's acquisition thereof where such application is made at any time up
22 to two years from the date on which the deed by which the city acquired
23 title to said property was recorded.
24 (2) Notwithstanding any inconsistent provision of paragraph one of
25 this subdivision to the contrary, the city's interest in property
26 acquired by in rem tax foreclosure may be released pursuant to this
27 section upon application of any party who had an interest in said prop-
28 erty as either owner, mortgagee, lienor or encumbrancer at the time of
29 the city's acquisition thereof where such application is made more than
30 two years after the date on which the deed by which the city acquired
31 title to said property was recorded provided such application is author-
32 ized by the council as hereinafter provided. An application for such
33 release and the documents required by subdivision c of this section in
34 support thereof shall be filed with the department of citywide adminis-
35 trative services in the manner provided in subdivision b of this
36 section. The department of citywide administrative services shall give
37 the council written notice of the receipt of each such filing. After
38 review and approval of the application by the corporation counsel as to
39 form and eligibility of the applicant, the department of citywide admin-
40 istrative services shall send a copy of such application to the in rem
41 foreclosure release board and to the council. Upon receipt of such
42 application, the in rem foreclosure release board shall take no further
43 action on such application unless the council adopts a resolution within
44 one hundred twenty days following the first stated meeting of the coun-
45 cil after receipt of such application authorizing the board to consider
46 such application. If the council fails to adopt a resolution within such
47 one hundred twenty-day period, the council shall be deemed to have
48 denied its authorization for the board to consider such application. A
49 resolution of the council pursuant to this paragraph shall describe the
50 property for which release is sought by borough, tax map, block and lot
51 number and shall specify that release of the city's interest in such
52 property is subject to the approval of the in rem foreclosure release
53 board and to all the conditions and restrictions set forth in this
54 section.
55 b. 1. Any such application shall be made in writing to the commission-
56 er of citywide administrative services and shall be verified. It shall
S. 8578 414
1 contain the name and address of the applicant and shall state the date
2 on which and the in rem action by which the city acquired title to the
3 property sought to be released. It shall also contain a statement speci-
4 fying the nature of the applicant's interest in the property and a full
5 description of the instrument from which the applicant's interest
6 derives including the date of execution, the date and place of the
7 recording or entry of said instrument and the parties thereto. In the
8 event the applicant's interest arises by reason of the death of a prior
9 owner, mortgagee, lienor or encumbrancer, then the application shall
10 also state the applicant's relationship to said decedent and shall
11 include whatever additional information may be necessary to prove the
12 applicant's right to make such application.
13 2. A fee of two hundred seventy-five dollars shall be paid on the
14 submission of any such application which is subject to the provisions of
15 subdivision f of this section, except that the fee for any such applica-
16 tion for the release of property improved by a one or two-family dwell-
17 ing shall be one hundred dollars.
18 3. A fee of five hundred fifty dollars shall be paid on the submission
19 of any such application which is subject to the provisions of subdivi-
20 sion g of this section, except that the fee for any such application for
21 the release of property improved by a one or two-family dwelling shall
22 be one hundred dollars.
23 4. A fee of two hundred seventy-five dollars shall be paid on the
24 submission of any such application which is subject to the provisions of
25 subdivision h of this section within four months from the date on which
26 the deed by which the city acquired title to the subject property was
27 recorded, and a fee of five hundred and fifty dollars shall be paid on
28 the submission of any such application which is subject to the
29 provisions of such subdivision not within four months from such date;
30 except that the fee for any such application which is subject to the
31 provisions of such subdivision for the release of property improved by a
32 one or two-family dwelling shall be one hundred dollars.
33 5. The fees payable pursuant to paragraphs two, three and four of this
34 subdivision shall not be refundable.
35 6. In addition to the fees specified in paragraphs two, three and four
36 of this subdivision, there shall be paid on the submission of any appli-
37 cation which is subject to this section an amount at least equal to the
38 lesser of nine hundred dollars or the sum specified in paragraph one of
39 subdivision d of this section, which amount shall not be refundable, but
40 shall be applied in reduction of the sum specified in paragraph one of
41 subdivision d of this section; provided, however, that if a release
42 requires the authorization of the in rem foreclosure release board, and
43 such authorization is not given, such additional amount shall be
44 refunded to the applicant.
45 c. Each application shall be supported by the certified search of the
46 city register or by an official letter, certificate or certified search
47 of any title insurance or abstract company, organized and doing business
48 under the laws of this state. Such supporting instruments shall recite
49 the recording data both as to the deed by which the city acquired title
50 to the parcel sought to be released and the instrument from which the
51 applicant's interest derives. In the event the applicant's interest does
52 not appear of record but is derived by the death of an owner, mortgagee,
53 lienor or encumbrancer of record, then the application shall also be
54 supported by the affidavit of the applicant or other person having
55 information thereof, or by the duly written certificate or certification
56 of the county clerk or the clerk of any surrogate's or other court of
S. 8578 415
1 record, or by any other instrument or document required by the corpo-
2 ration counsel to substantiate the applicant's right to file such appli-
3 cation in compliance with the provisions of this section.
4 d. The city's interest shall be released only after payment, as to
5 each parcel to be released, of the following sums of money:
6 1. The principal amount due on all unpaid taxes, assessments, water
7 charges and sewer rents appearing on the list of delinquent taxes and
8 accruing thereafter together with interest at the rate or rates provided
9 by law.
10 2. Five percent of the amount paid pursuant to the preceding paragraph
11 but not exceeding one thousand dollars for each parcel.
12 3. Any deficiency which may result to the city after all payments made
13 by it for the repair, maintenance, and operation of the lands, real
14 estate or real property shall have been charged or debited in the appro-
15 priate accounts of the city and all rents, license fees and other moneys
16 collected by the city as a result of its operation of the said lands,
17 real estate or real property shall have been credited in such accounts.
18 Any contract for repair, maintenance, management or operation made by
19 the city on which it shall be liable, although payment thereon shall not
20 have been made, shall be deemed a charge or debit to such accounts as
21 though payment had been made. The amounts paid and collected by the city
22 as shown in its accounts and the necessity for making the several
23 payments and contracts to be charged as herein provided shall be conclu-
24 sive upon the applicant. Where a deficiency under this subdivision shall
25 be created or increased by the failure of the city to collect rents,
26 license fees or other moneys to which the city may have been entitled,
27 the right to collect or to bring action for the same shall be assigned,
28 transferred and set over to the applicant by an instrument in writing.
29 4. Any and all costs and disbursements which shall have been awarded
30 to the city or to which it may have become entitled by operation of law
31 or which it may have paid or become liable for payment in connection
32 with any litigation between it and the applicant or any person having an
33 estate or interest in the lands, real estate or real property to be
34 released resulting directly or indirectly from the foreclosure by action
35 in rem of the delinquent taxes affecting said lands, real estate or real
36 property.
37 5. A reasonable monthly fee to be determined by the city, through the
38 department of citywide administrative services, for management services
39 and operations of the lands, real estate or real property by the city
40 prior to the release of said lands, real estate or property.
41 6. The city, through the department of citywide administrative
42 services, shall also require as additional consideration for such
43 release, the payment of all arrears on mortgages held by the city and
44 all liens accruing to it by operation of law including but not limited
45 to relocation and emergency repair liens.
46 e. The corporation counsel shall effect the release of the city's
47 interest in property acquired by in rem tax foreclosure, as provided for
48 in this section, by preparing and causing to be entered an order discon-
49 tinuing the in rem tax foreclosure action as to said property, cancel-
50 ling the notice of pendency of such action as to said property and
51 vacating and setting aside the in rem judgment of foreclosure and the
52 deed executed and recorded pursuant to such judgment of foreclosure as
53 to said property. The entry of such order shall restore all parties,
54 including owners, mortgagees and any and all lienors, receivers and
55 administrators and encumbrancers, to the status they held at the time
56 the city acquired title to said property, as if the in rem tax foreclo-
S. 8578 416
1 sure had never taken place, and shall render said property liable for
2 all taxes, deficiencies, management fees and liens which shall accrue
3 subsequent to those paid in order to obtain the release provided for in
4 this section, or which were, for whatever reason, omitted from the
5 payment made to obtain said release.
6 f. If an application pursuant to this section, and the documents
7 required by subdivision c of this section in support thereof, are filed
8 within four months after the date of the city's acquisition of the
9 subject property, said application shall be granted providing the corpo-
10 ration counsel approves the application as to form, timeliness and
11 eligibility of the applicant and providing the applicant has paid all
12 amounts required to be paid by subdivision d of this section within
13 thirty days of the date on which a letter requesting applicant to make
14 such payment is mailed or delivered to the applicant. The city shall not
15 sell or assign any property acquired by in rem tax foreclosure within
16 four months of said acquisition but this provision shall not prevent the
17 city from authorizing condemnation of such property or vesting title
18 thereto in a condemnation proceeding during said four month period. In
19 the event an application pursuant to this section is filed within four
20 months of the city's acquisition by in rem tax foreclosure and title to
21 the subject property vests in condemnation before the city's interest
22 therein has been released by the vacate order provided for herein, the
23 applicant shall be entitled to the condemnation award for such property
24 without the entry of such vacate order, providing the corporation coun-
25 sel has approved the application as aforesaid and providing that the
26 amounts specified in subdivision d of this section, if not previously
27 paid, are deducted from said condemnation award, with taxes apportioned
28 to the date of the condemnation title vesting.
29 g. If an application for a release of the city's interest in property
30 acquired by in rem tax foreclosure, and the documents required by subdi-
31 vision c of this section in support thereof, have been filed within the
32 time allowed in paragraph one of subdivision a of this section, but more
33 than four months after the date of the city's acquisition or if an
34 application for such release has been authorized by a resolution of the
35 council pursuant to paragraph two of subdivision a of this section and
36 such application and the documents required by subdivision c of this
37 section in support thereof have been filed, the in rem foreclosure
38 release board may, in its discretion, authorize the release of the
39 city's interest in said property pursuant to this section, provided that
40 the application has been approved by the corporation counsel as to form,
41 timeliness and eligibility of the applicant and provided that the city
42 has not sold or otherwise disposed of said property and provided,
43 further, that said property has not been condemned or assigned to any
44 agency of the city and is not the subject of contemplated use for any
45 capital or urban renewal project of the city. The corporation counsel
46 shall effect such discretionary release only where the applicant, after
47 the board's authorization of the release, has paid all the amounts
48 required to be paid by subdivision d of this section within thirty days
49 of the date on which a letter requesting the applicant to make such
50 payment is mailed or delivered to the applicant. The in rem foreclosure
51 release board may also, in its discretion, authorize a release of the
52 city's interest in such property, pursuant to the above provisions,
53 whenever an application for such release, approved as to form, timeli-
54 ness and eligibility by the corporation counsel, has been filed at any
55 time during the period allowed in subdivision a of this section in which
56 the applicant has requested an installment agreement of the commissioner
S. 8578 417
1 of citywide administrative services for the payment of the amounts
2 required to be paid by subdivision d of this section provided that said
3 commissioner has approved such request. The commissioner of citywide
4 administrative services shall not approve any such request unless the
5 applicant shall have given notice by certified mail to each tenant
6 located on the parcel, of the request and shall have given such commis-
7 sioner an affidavit stating that such notice has been provided, within
8 thirty days after the request. Any false statement in such affidavit
9 shall not in any way affect the validity of the agreement, be grounds
10 for its cancellation or in any way affect the release of the city's
11 interest in the parcel. Such agreement shall require, in addition to
12 full payment of the amounts due under paragraphs two, three, four, five
13 and six of subdivision d of this section, a first installment of fifty
14 percent of the amount due under paragraph one of said subdivision d with
15 the balance of said amount to be paid in four equal quarterly install-
16 ments together with all current taxes, assessments or other legal charg-
17 es that accrue during such period; provided, however, that: (i) whenever
18 a request for an installment agreement is made of the commissioner of
19 citywide administrative services by a company organized pursuant to
20 article eleven of the private housing finance law with the consent and
21 approval of the department of housing preservation and development or
22 for a parcel which is an owner-occupied residential building of not more
23 than five residential units, the commissioner of citywide administrative
24 services may, as to that portion of the amounts due under paragraph one
25 of subdivision d of this section which became due prior to the acquisi-
26 tion by the article eleven company of its interest in the property and
27 as to the amount due under paragraph one of subdivision d of this
28 section in the case of such an owner-occupied building, approve a
29 reduction of such first installment to an amount not less than ten
30 percent of the amount due under paragraph one of subdivision d of this
31 section and an increase in the number of the following equal quarterly
32 installments to a number which shall be equal to three times the number
33 of unpaid quarters of real estate taxes or the equivalent thereof but
34 which shall in no event exceed forty-eight, and (ii) notwithstanding
35 clause (i) of this paragraph, whenever an installment agreement is
36 requested on or after the date on which this clause takes effect with
37 respect to a parcel that, immediately prior to the city's acquisition
38 thereof by in rem tax foreclosure, was owned by a company organized
39 pursuant to article eleven of the state private housing finance law with
40 the consent and approval of the department of housing preservation and
41 development, or with respect to a parcel that is a residential building
42 containing not more than five residential units, a residential condomin-
43 ium unit or a residential building held in a cooperative form of owner-
44 ship, the commissioner of general services may, as to the amount due
45 under paragraph one of subdivision d of this section, approve an
46 installment agreement containing the terms relating to the required
47 percentage payment for the first installment and the required number of
48 subsequent quarterly installments, that would be applicable to such
49 parcel under paragraph two (but without regard to any reference therein
50 to paragraph three) of subdivision i of section 11-409 of this chapter.
51 For purposes of calculating the number of such following equal quarterly
52 installments, unpaid real estate taxes or the equivalent which are, on
53 and after July first, nineteen hundred eighty-two, due and payable on an
54 other than quarterly basis shall be deemed to be payable on a quarterly
55 basis. Where the in rem foreclosure release board denies an application
56 requesting an installment agreement the board shall authorize a release
S. 8578 418
1 of the city's interest, provided that the applicant thereafter pays all
2 the amounts required to be paid by subdivision d of this section within
3 thirty days of the date on which a letter requesting such payment is
4 mailed or delivered to the applicant only when said application and the
5 documents required by subdivision c of this section in support thereof
6 were filed within thirty days of the date of the city's acquisition of
7 the property sought to be released. Where the in rem foreclosure
8 release board denies an application requesting an installment agreement
9 which was filed more than thirty days after the date of the city's
10 acquisition, the board may, in its discretion, authorize a release of
11 the city's interest, provided that the applicant thereafter pays all the
12 amounts required to be paid by subdivision d of this section within
13 thirty days of the date on which a letter requesting such payment is
14 mailed or delivered to the applicant. Where the in rem foreclosure
15 release board approves an application requesting an installment agree-
16 ment, the order releasing the city's interest shall provide that in the
17 event of any default as to the payment of either quarterly installments
18 or current taxes, assessments or other legal charges during the term of
19 such agreement, as set forth in the board's resolution, all payments
20 made under said agreement shall be forfeited and the city shall be enti-
21 tled to reacquire the property so released. The corporation counsel
22 shall effect such reacquisition by causing to be entered as to such
23 property a supplemental judgment of foreclosure in the in rem action by
24 which said property was originally acquired immediately on notification
25 by the commissioner of finance of such default.
26 h. An owner of property entitled to an exemption under any of the
27 provisions of article four of the real property tax law during all or
28 part of the period covered by the tax items appearing on a list of
29 delinquent taxes may apply for a release of the city's interest in such
30 exempt property under the provisions of this section during the periods
31 of time set forth herein and for an additional period up to ten years
32 from the date of the city's acquisition of said property by in rem fore-
33 closure. The application of such owner shall contain, in addition to the
34 statements, searches and proofs required by this section, a statement
35 that an exemption under the real property tax law is being claimed. Such
36 application shall also state either that it is accompanied by the writ-
37 ten certificate of the comptroller setting forth the precise period
38 during which said property, while owned by such applicant, and during
39 the period after the city's acquisition up to the date of the certif-
40 icate if said property was still being used for an exempt purpose after
41 said acquisition, was entitled to an exemption and the exact nature and
42 extent of such exemption or that an application for such written certif-
43 icate has been filed with the comptroller. On issuing such written
44 certificate, the comptroller shall cancel those tax items which have
45 accrued during the period covered by the certificate to the extent the
46 applicant is entitled to an exemption as set forth in the certificate.
47 Where an application by an exempt owner is filed more than four months
48 after the date of the city's acquisition of the subject property, a
49 release of the city's interest may be issued only at the discretion of
50 the in rem foreclosure release board and subject to all the restrictions
51 set forth in subdivision g of this section. A release to an exempt
52 applicant shall be effected only after said applicant has paid all the
53 amounts required to be paid by subdivision d of this section, except for
54 those tax items which have been cancelled, in whole or in part, pursuant
55 to the comptroller's certificate, within thirty days of the date on
S. 8578 419
1 which a letter requesting payment is mailed or delivered to the appli-
2 cant.
3 i. The corporation counsel shall also effect the release of the city's
4 interest in property acquired by in rem foreclosure, as provided for in
5 this action, whenever the commissioner of finance shall accept as to any
6 parcel so acquired, the payment provided for in paragraph two of subdi-
7 vision a of section 11-413 of this chapter. Said commissioner may accept
8 such payment at any time within four months of the date of the city's
9 acquisition and may further, subject to the approval of the in rem fore-
10 closure release board, accept such payment at any time more than four
11 months after the date of the city's acquisition but less than two years
12 from the date on which the city's deed was recorded providing said prop-
13 erty has not been sold or otherwise disposed of nor condemned or
14 assigned to any agency of the city and is not the subject of contem-
15 plated use of any capital or urban renewal project of the city.
16 § 11-424.1 In rem foreclosure release board. There shall be an in rem
17 foreclosure release board consisting of the mayor, the speaker of the
18 city council, the borough president, the corporation counsel and the
19 commissioner of finance. Members of the board may, by written authority
20 filed with the board and with the city clerk, appoint delegates to act
21 on their behalf as members of the board. The board shall have the power,
22 acting by resolution, to authorize the release of the city's interest in
23 property acquired by in rem tax foreclosure in accordance with sections
24 11-412.1 and 11-424 of the code based upon a determination, in its
25 discretion, that such release would be in the best interests of the
26 city. The board shall act after a meeting at which the public has been
27 provided an opportunity to comment on the proposed action. A resolution
28 of the board authorizing a release of the city's interest in any proper-
29 ty shall be adopted only upon the affirmative vote of not less than a
30 majority of all the members of the board. The board may consider any
31 information it deems relevant to a determination. The board shall not be
32 required to state the reasons for its determination.
33 § 11-425 Agreements for payment of delinquent taxes and charges in
34 installments. a. During the period beginning on May ninth, nineteen
35 hundred seventy-seven and ending on June thirtieth, nineteen hundred
36 seventy-seven, the commissioner of finance or, when so specified herein-
37 after, the commissioner of general services, shall be authorized and
38 empowered to make and execute agreements in the circumstances and
39 subject to the terms, conditions and limitations set forth in this
40 section; provided, however, that if the commissioner of finance or,
41 where applicable, the commissioner of general services determines in his
42 or her sole discretion that good cause exists, he or she may make and
43 execute such agreements during an additional period ending not later
44 than July thirty-first, nineteen hundred seventy-seven.
45 b. (1) Whenever it shall appear that a tax lien on a parcel has been
46 due and unpaid for a period of at least six months from the date on
47 which the tax, assessment or other legal charge represented thereby
48 became a lien, the commissioner of finance may enter into an agreement
49 with the owner of such parcel or other person claiming to have an inter-
50 est therein providing for the payment of such delinquent taxes, assess-
51 ments or other legal charges and interest and penalties in installments,
52 the first of which shall be equal to at least fifteen percent of such
53 arrears and shall be payable upon the execution of such agreement. Each
54 remaining installment shall be equal to at least an amount produced by
55 dividing the balance of such arrears by a factor determined by multiply-
56 ing the number of quarters of such arrears by two hundred percent;
S. 8578 420
1 provided, however, in no event shall such factor be in excess of thir-
2 ty-two. Each such remaining installment shall be payable quarterly on
3 the first of July, October, January and April.
4 (2) If an agreement authorized by paragraph one of this subdivision is
5 executed prior to the time the commissioner of finance files in the
6 office of the county clerk a list of delinquent taxes covering the city
7 or portion of the city in which the subject parcel is located, such
8 parcel shall be excluded from such list of delinquent taxes, provided,
9 at the time such list is filed, there is no default in the agreement and
10 all current taxes, assessments or other legal charges have been paid as
11 they became due or within the period of grace provided by law. In the
12 event of any default in the agreement or any failure to make timely
13 payment of any current item, the parcel shall, if then delinquent for
14 the applicable period specified in section 11-404 of this chapter, be
15 eligible for inclusion in any list of delinquent taxes thereafter filed.
16 (3) If an in rem foreclosure action has been commenced against any
17 parcel prior to May ninth, nineteen hundred seventy-seven, the commis-
18 sioner of finance may, notwithstanding the provisions of paragraph three
19 of subdivision a of section 11-413 of this chapter, enter into an agree-
20 ment authorized and described in the foregoing provisions of this
21 section with respect to such parcel. However, if such an agreement is
22 entered into subsequent to the last date for redemption specified in
23 subdivision a of section 11-407 of this chapter, there shall be paid to
24 the commissioner of finance at the time said agreement is executed an
25 amount equal to the penalty which would have been payable under subdivi-
26 sion c of section 11-407 of this chapter had the person executing the
27 agreement made a late redemption payment. Such amount shall be in addi-
28 tion to any installment payments required to be made under the agreement
29 and shall not be credited against any such installment payments. Any
30 parcel which is the subject of an agreement made pursuant to this para-
31 graph may, prior to final judgment, be withdrawn from the action,
32 provided there has been no default in the agreement, and provided
33 further that all current taxes, assessments or other legal charges are
34 paid when they become due or within the period of grace provided by law.
35 Such withdrawal shall be effected by the commissioner of finance in the
36 manner provided in section 11-413 of this chapter.
37 (4) Any person who, prior to May ninth, nineteen hundred seventy-sev-
38 en, has made, executed and filed with the commissioner of finance an
39 agreement pursuant to the provisions of paragraph three of subdivision a
40 of section 11-413 of this chapter, shall be permitted to make applica-
41 tion to the commissioner of finance for the purpose of having such
42 agreement cancelled and a new agreement executed as hereinabove
43 provided.
44 If an agreement executed prior to May ninth, nineteen hundred seven-
45 ty-seven is not cancelled as herein provided, any installments due and
46 payable under such agreement on or after July first, nineteen hundred
47 seventy-seven shall be subject to interest at the rate specified in
48 paragraph five of this subdivision, but only if, as of July first, nine-
49 teen hundred seventy-seven, there is no default in the agreement and all
50 current taxes, assessments or other legal charges have been paid within
51 the time allowed by law. Such rate of interest shall be calculated in
52 the manner and shall be subject to all the conditions provided in said
53 paragraph five.
54 (5) When an agreement has been entered into pursuant to this subdivi-
55 sion, the commissioner of finance shall, notwithstanding the rates of
56 interest prescribed in section 11-224, 11-312 or 11-313 of this title,
S. 8578 421
1 charge, collect and receive interest on the arrears due and payable
2 under such agreement, to be calculated at the rate of seven percent per
3 annum from July first, nineteen hundred seventy-seven to the date of
4 payment of each installment. Any interest accrued or accruing prior to
5 July first, nineteen hundred seventy-seven shall not be affected by the
6 provisions of this paragraph, but shall be charged, collected and
7 received in the manner and at the rates specified in section 11-224,
8 11-312 or 11-313 of this title. The seven percent rate of interest spec-
9 ified in this paragraph shall be applicable only if (i) there is no
10 default in the agreement entered into as provided in this section, and
11 (ii) all current taxes, assessments or other legal charges are paid as
12 they become due or within the period of grace provided by law. In the
13 event of any default or failure to make timely payment of any current
14 item, the seven percent rate of interest specified in this paragraph
15 shall thereupon cease to be applicable and the commissioner of finance
16 shall thereafter charge, collect and receive interest in the manner and
17 at the rates otherwise specified in this title.
18 (6) In addition to the terms and conditions required by the preceding
19 paragraphs of this subdivision to be included in agreements authorized
20 by this section, the commissioner of finance may in his or her
21 discretion include in such agreements such additional terms and condi-
22 tions, not inconsistent with this section, as he or she determines to be
23 necessary in order to properly carry out the provisions of this section.
24 The commissioner may also adopt such rules and regulations as may be
25 necessary to carry out the provisions of this section.
26 c. (1) If, pursuant to the provisions of section 11-424 of this chap-
27 ter, an application for the release of property acquired by the city
28 through in rem tax foreclosure is made within the four-month period
29 specified in subdivision f of section 11-424 of this chapter, and
30 provided such application is made during the period specified in subdi-
31 vision a of this section, the provisions of this subdivision shall, at
32 the election of the applicant, apply with respect to such application
33 and the release sought thereby.
34 (2) At the time of filing the application for release, an applicant
35 who elects to have the provisions of this subdivision apply to him or
36 her, shall pay to the city the amounts specified in paragraphs two,
37 three and four of subdivision d of section 11-424 of this chapter, for
38 this purpose, the amount specified in paragraph two thereof shall be
39 deemed to be the amount which would have been required to be paid there-
40 under had this section not been in effect. Concurrent with the making of
41 such payment, the applicant shall enter into an agreement with the
42 commissioner of general services providing for the payment of all
43 current taxes, assessments or other legal charges on the property as
44 they become due or within the grace period provided by law, and, in
45 addition, providing for the payment of the amount specified in paragraph
46 one of subdivision d of section 11-424 of this chapter in installments,
47 the first of which shall be equal to at least twenty-five percent of
48 such amount and shall be payable upon the execution of such agreement.
49 The balance of such amount shall be payable in twelve equal quarterly
50 installments, each of which shall be paid quarterly on the first of
51 July, October, January and April.
52 (3) Pending approval by the corporation counsel of an application for
53 release as to form, timeliness and eligibility of the applicant, all
54 payments made pursuant to the preceding paragraph shall be held in
55 escrow; in the event the corporation counsel disapproves the applica-
S. 8578 422
1 tion, such payments shall be returned to the applicant, and the agree-
2 ment executed by the applicant shall thereupon be cancelled.
3 (4) In the case of any agreement made and executed pursuant to para-
4 graph two hereof, interest on any installment due and payable thereunder
5 shall, notwithstanding the rates of interest prescribed in section
6 11-224, 11-312 or 11-313 of this title, be charged, collected and
7 received at the rate of seven percent per annum from July first, nine-
8 teen hundred seventy-seven to the date of payment of each installment.
9 Any interest accrued or accruing prior to July first, nineteen hundred
10 seventy-seven shall not be affected by the provisions of this paragraph,
11 but shall be charged, collected and received in the manner and at the
12 rates specified in section 11-224, 11-312 or 11-313 of this title. The
13 seven percent rate of interest specified in this paragraph shall be
14 applicable only if (i) there is no default in the agreement entered into
15 as provided in this subdivision, and (ii) all current taxes, assessments
16 or other legal charges are paid as they become due or within the period
17 of grace provided by law.
18 (5) No release for which application has been made pursuant to this
19 subdivision shall be granted until the final payment under the agreement
20 herein provided is received by the city. Upon receipt of such final
21 payment by the city the corporation counsel shall effect the release in
22 the manner provided in section 11-424 of this chapter. In the event of
23 any default in an agreement executed as provided in this subdivision or
24 any failure to pay current taxes, assessments or other legal charges as
25 they become due or within the grace period provided by law, such agree-
26 ment shall thereupon become void, the release process shall be termi-
27 nated, and all payments theretofore made shall be forfeited to the city.
28 (6) In addition to the terms and conditions required by the preceding
29 paragraphs of this subdivision to be included in agreements authorized
30 thereby, the commissioner of general services may in his or her
31 discretion include in such agreements such additional terms and condi-
32 tions, not inconsistent with this subdivision, as the commissioner
33 determines to be necessary in order to properly carry out the provisions
34 hereof. The commissioner of general services may also adopt such rules
35 and regulations as may be necessary to carry out the provisions of this
36 subdivision.
37 § 11-426 Agreements for payment of delinquent taxes and charges in
38 installments. a. During the period beginning on December second, nine-
39 teen hundred seventy-seven and ending on March thirty-first, nineteen
40 hundred seventy-eight, the commissioner of finance, or, when so speci-
41 fied hereinafter, the commissioner of general services, shall be author-
42 ized and empowered to make and execute agreements in the circumstances
43 and subject to the terms, conditions and limitations set forth in this
44 section.
45 b. (1) Whenever it shall appear that a tax lien on a parcel has been
46 due and unpaid for a period of at least six months from the date on
47 which the tax, assessment or other legal charge represented thereby
48 became a lien, the commissioner of finance may enter into an agreement
49 with the owner of such parcel or other person claiming to have an inter-
50 est therein providing for the payment of such delinquent taxes, assess-
51 ments or other legal charges and interest and penalties in installments,
52 the first of which shall be equal to at least fifteen percent of such
53 arrears and shall be payable upon the execution of such agreement. Each
54 remaining installment shall be equal to at least an amount produced by
55 dividing the balance of such arrears by a factor determined by multiply-
56 ing the number of quarters of such arrears by two hundred percent. In no
S. 8578 423
1 event, however, shall the factor referred to in the preceding sentence
2 be in excess of thirty-two. Each such remaining installment shall be
3 payable quarterly on the first of July, October, January and April.
4 (2) If an agreement authorized by paragraph one of this subdivision is
5 executed prior to the time the commissioner of finance files in the
6 office of the county clerk a list of delinquent taxes covering the city
7 or portion of the city in which the subject parcel is located, such
8 parcel shall be excluded from such list of delinquent taxes, provided,
9 at the time such list is filed, there is no default in the agreement and
10 all current taxes, assessments or other legal charges have been paid as
11 they became due or within the period of grace provided by law. In the
12 event of any default in the agreement or any failure to make timely
13 payment of any current item, the parcel shall, if then delinquent for
14 the applicable period specified in section 11-404 of this chapter, be
15 eligible for inclusion in any list of delinquent taxes thereafter filed.
16 (3) If an in rem foreclosure action has been commenced against any
17 parcel prior to December second, nineteen hundred seventy-seven, the
18 commissioner of finance may, notwithstanding the provisions of paragraph
19 three of subdivision a of section 11-413 of this chapter, enter into an
20 agreement authorized and described in the foregoing provisions of this
21 section with respect to such parcel. However, if such an agreement is
22 entered into subsequent to the last date for redemption specified in
23 subdivision a of section 11-407 of this chapter, there shall be paid to
24 the commissioner of finance at the time said agreement is executed an
25 amount equal to the penalty which would have been payable under subdivi-
26 sion c of section 11-407 of this chapter had the person executing the
27 agreement made a late redemption payment. Such amount shall be in addi-
28 tion to any installment payments required to be made under the agreement
29 and shall not be credited against any such installment payments. Any
30 parcel which is the subject of an agreement made pursuant to this para-
31 graph may, prior to final judgment, be withdrawn from the action,
32 provided there has been no default in the agreement, and provided
33 further that all current taxes, assessments or other legal charges are
34 paid when they become due or within the period of grace provided by law.
35 Such withdrawal shall be effected by the commissioner of finance in the
36 manner provided in section 11-413 of this chapter.
37 (4) Any person who, prior to December second, nineteen hundred seven-
38 ty-seven, has made, executed and filed with the commissioner of finance
39 an agreement pursuant to the provisions of paragraph three of subdivi-
40 sion a of section 11-413 of this chapter, shall be permitted to make
41 application to the commissioner of finance for the purpose of having
42 such agreement cancelled and a new agreement executed as hereinabove
43 provided.
44 If an agreement executed prior to December second, nineteen hundred
45 seventy-seven is not cancelled as herein provided, any installments due
46 and payable under such agreement on or after April first, nineteen
47 hundred seventy-eight shall be subject to interest at the rate specified
48 in paragraph five of this subdivision, but only if, as of April first,
49 nineteen hundred seventy-eight, there is no default in the agreement and
50 all current taxes, assessments or other legal charges have been paid
51 within the time allowed by law. Such rate of interest shall be calcu-
52 lated in the manner and shall be subject to all the conditions provided
53 in said paragraph five.
54 (5) When an agreement has been entered into pursuant to this subdivi-
55 sion, the commissioner of finance shall, notwithstanding the rates of
56 interest prescribed in section 11-224, 11-312 or 11-313 of this title,
S. 8578 424
1 charge, collect and receive interest on the arrears due and payable
2 under such agreement to be calculated at the rate of seven percent per
3 annum from April first, nineteen hundred seventy-eight to the date of
4 payment of each installment. Any interest accrued or accruing prior to
5 April first, nineteen hundred seventy-eight shall not be affected by the
6 provisions of this paragraph, but shall be charged, collected and
7 received in the manner and at the rates specified in section 11-224,
8 11-312 or 11-313 of this title. The seven percent rate of interest spec-
9 ified in this paragraph shall be applicable only if (i) there is no
10 default in the agreement entered into as provided in this section, and
11 (ii) all current taxes, assessments or other legal charges are paid as
12 they become due or within the period of grace provided by law. In the
13 event of any default or failure to make timely payment of any current
14 item, the seven percent rate of interest specified in this paragraph
15 shall thereupon cease to be applicable and the commissioner of finance
16 shall thereafter charge, collect and receive interest in the manner and
17 at the rates otherwise specified in this title.
18 (6) In addition to the terms and conditions required by this subdivi-
19 sion to be included in agreements authorized by this section, the
20 commissioner of finance may, in his or her discretion, include in such
21 agreements such additional terms and conditions, not inconsistent with
22 this section, as such commissioner determines to be necessary in order
23 to properly carry out the provisions of this section. The commissioner
24 of finance may also adopt such rules and regulations as may be necessary
25 to carry out the provisions of this section.
26 c. (1) If, pursuant to the provisions of section 11-424 of this chap-
27 ter, an application for the release of property acquired by the city
28 through in rem tax foreclosure is made within the four-month period
29 specified in subdivision f of section 11-424 of this chapter, and
30 provided such application is made during the period specified in subdi-
31 vision a of this section, the following provisions of this subdivision
32 shall, at the election of the applicant, apply with respect to such
33 application and the release sought thereby.
34 (2) At the time of filing the application for release, an applicant
35 who elects to have the provisions of this subdivision apply to him or
36 her, shall pay to the city the amounts specified in paragraphs two,
37 three and four of subdivision d of section 11-424 of this chapter, for
38 this purpose, the amount specified in such paragraph two shall be deemed
39 to be the amount which would have been required to be paid thereunder
40 had this section not been in effect. Concurrent with the making of such
41 payment, the applicant shall enter into an agreement with the commis-
42 sioner of general services providing for the payment of all current
43 taxes, assessments or other legal charges on the property as they become
44 due or within the grace period provided by law, and, in addition,
45 providing for the payment of the amount specified in paragraph one of
46 subdivision d of section 11-424 of this chapter in installments, the
47 first of which shall be equal to at least twenty-five percent of such
48 amount and shall be payable upon the execution of such agreement. The
49 balance of such amount shall be payable in twelve equal quarterly
50 installments, each of which shall be paid quarterly on the first of
51 July, October, January and April.
52 (3) Pending approval by the corporation counsel of an application for
53 release as to form, timeliness and eligibility of the applicant, all
54 payments made pursuant to the preceding paragraph shall be held in
55 escrow; in the event the corporation counsel disapproves the applica-
S. 8578 425
1 tion, such payments shall be returned to the applicant, and the agree-
2 ment executed by him or her shall thereupon be cancelled.
3 (4) In the case of any agreement made and executed pursuant to such
4 paragraph two, interest on any installment due and payable thereunder
5 shall, notwithstanding the rates of interest prescribed in section
6 11-224, 11-312 or 11-313 of this title, be charged, collected and
7 received at the rate of seven percent per annum from April first, nine-
8 teen hundred seventy-eight to the date of payment of each installment.
9 Any interest accrued or accruing prior to April first, nineteen hundred
10 seventy-eight shall not be affected by the provisions of this paragraph,
11 but shall be charged, collected and received in the manner and at the
12 rates specified in section 11-224, 11-312 or 11-313 of this title. The
13 seven percent rate of interest specified in this paragraph shall be
14 applicable only if (i) there is no default in the agreement entered into
15 as provided in this subdivision, and (ii) all current taxes, assessments
16 or other legal charges are paid as they become due or within the period
17 of grace provided by law.
18 (5) No release for which application has been made pursuant to this
19 subdivision shall be granted until the final payment under the agreement
20 herein provided is received by the city. Upon receipt of such final
21 payment by the city the corporation counsel shall effect the release in
22 the manner provided in section 11-424 of this chapter. In the event of
23 any default in an agreement executed as provided in this subdivision or
24 any failure to pay current taxes, assessments or other legal charges as
25 they become due or within the grace period provided by law, such agree-
26 ment shall thereupon become void, the release process shall be termi-
27 nated, and all payments theretofore made shall be forfeited to the city.
28 (6) In addition to the terms and conditions required by this subdivi-
29 sion to be included in agreements authorized thereby, the commissioner
30 of general services may, in his or her discretion, include in such
31 agreements such additional terms and conditions, not inconsistent with
32 this subdivision, as the commissioner determines to be necessary in
33 order to properly carry out the provisions hereof. The commissioner of
34 general services may also adopt such rules and regulations as may be
35 necessary to carry out the provisions of this subdivision.
36 § 11-427 Agreements for payment of delinquent taxes and charges in
37 installments. a. During the period beginning September first, nineteen
38 hundred seventy-eight and ending December thirty-first, nineteen hundred
39 seventy-eight, the commissioner of finance, or, when so specified here-
40 inafter, the commissioner of general services, shall be authorized and
41 empowered to make and execute agreements in the circumstances and
42 subject to the terms, conditions and limitations set forth in this
43 section; provided, however, that if the commissioner of finance or,
44 where applicable, the commissioner of general services, determines in
45 his or her sole discretion that good cause exists, he or she may make
46 and execute such agreements during an additional period ending not later
47 than January thirty-first, nineteen hundred seventy-nine.
48 b. (1) (i) Whenever it shall appear that a tax lien on a parcel has
49 been due and unpaid for a period of at least six months from the date on
50 which the tax, assessment or other legal charge represented thereby
51 became a lien, the commissioner of finance may enter into an agreement
52 with the owner of such parcel or other person claiming to have an inter-
53 est therein providing for the payment of such delinquent taxes, assess-
54 ments or other legal charges and interest and penalties in installments,
55 the first of which shall be equal to at least fifteen percent of such
56 arrears and shall be payable upon the execution of such agreement. Each
S. 8578 426
1 remaining installment shall be equal to at least an amount produced by
2 dividing the balance of such arrears by a factor determined by multiply-
3 ing the number of quarters of such arrears by two.
4 (ii) In no event, however, shall the factor referred to in subpara-
5 graph (i) of this paragraph be in excess of thirty-two. Each such
6 remaining installment shall be payable quarterly on the first of July,
7 October, January and April.
8 (2) If an agreement authorized by paragraph one of this subdivision is
9 executed prior to the time the commissioner of finance files in the
10 office of the county clerk a list of delinquent taxes covering the city
11 or portion of the city in which the subject parcel is located, such
12 parcel shall be excluded from such list of delinquent taxes, provided,
13 at the time such list is filed, there is no default in the agreement and
14 all current taxes, assessments or other legal charges were paid as they
15 became due or within the period of grace provided by law. In the event
16 of any default in the agreement or any failure to make timely payment of
17 any current item, the parcel shall, if then delinquent for the applica-
18 ble period specified in section 11-404 of this chapter, be eligible for
19 inclusion in any list of delinquent taxes thereafter filed.
20 (3) If an in rem foreclosure action has been commenced against any
21 parcel prior to September first, nineteen hundred seventy-eight, the
22 commissioner of finance may, notwithstanding the provisions of paragraph
23 three of subdivision a of section 11-413 of this chapter, enter into an
24 agreement authorized and described in the foregoing provisions of this
25 section with respect to such parcel. However, if such an agreement is
26 entered into subsequent to the last date for redemption specified in
27 subdivision a of section 11-407 of this chapter, there shall be paid to
28 the commissioner of finance at the time said agreement is executed an
29 amount equal to the penalty which would have been payable under subdivi-
30 sion c of section 11-407 of this chapter had the person executing the
31 agreement made a late redemption payment. Such amount shall be in addi-
32 tion to any installment payments required to be made under the agreement
33 and shall not be credited against any such installment payments. Any
34 parcel which is the subject of an agreement made pursuant to this para-
35 graph may, prior to final judgment, be withdrawn from the action,
36 provided there has been no default in the agreement, and provided
37 further that all current taxes, assessments or other legal charges are
38 paid when they become due or within the period of grace provided by law.
39 Such withdrawal shall be effected by the commissioner of finance in the
40 manner provided in section 11-413 of this chapter.
41 (4) Any person who, prior to September first, nineteen hundred seven-
42 ty-eight, has made, executed and filed with the commissioner of finance
43 an agreement pursuant to the provisions of paragraph three of subdivi-
44 sion a of section 11-413 of this chapter, shall be permitted to make
45 application to the commissioner of finance for the purpose of having
46 such agreement cancelled and a new agreement executed as hereinabove
47 provided.
48 If an agreement executed prior to September first, nineteen hundred
49 seventy-eight is not cancelled as herein provided, any installments due
50 and payable under such agreement on or after February first, nineteen
51 hundred seventy-nine shall be subject to interest at the rate specified
52 in paragraph six of this subdivision, but only if, as of February first,
53 nineteen hundred seventy-nine, there is no default in the agreement and
54 all current taxes, assessments or other legal charges have been paid
55 within the time allowed by law. Such rate of interest shall be calcu-
S. 8578 427
1 lated in the manner and shall be subject to all the conditions provided
2 in paragraph six of this subdivision.
3 (5) Notwithstanding the preceding paragraphs of this subdivision, no
4 owner of, or other person claiming to have an interest in, any parcel
5 shall be eligible to enter into an agreement authorized by such para-
6 graphs where such parcel was included in an in rem foreclosure action
7 but was severed therefrom pursuant to the judgment of foreclosure in
8 such action because an answer was still pending as to such parcel. The
9 commissioner of finance may, however, on notice to the corporation coun-
10 sel, enter into an agreement with such owner or other interested person
11 providing for the payment of all current taxes, assessments or other
12 legal charges on the parcel as they become due or within the grace peri-
13 od provided by law, and, in addition, providing for payment of the
14 amount of all delinquent taxes, assessments or other legal charges and
15 interest due as of the date the agreement is executed in installments,
16 the first of which shall be equal to at least twenty-five percent of
17 such amount and shall be payable upon the execution of such agreement,
18 and the balance of which shall be payable in twelve equal quarterly
19 installments, each of which shall be paid on the first of July, October,
20 January and April. In addition, there shall be paid to the commissioner
21 of finance at the time such agreement is executed a penalty equal to
22 five percent of the amount of the delinquent taxes, assessments or other
23 legal charges and interest due as of the date of the agreement, which
24 penalty shall not exceed five hundred dollars. Any installments due and
25 payable on or after February first, nineteen hundred seventy-nine under
26 an agreement described in this paragraph shall be subject to interest at
27 the rate specified in paragraph six of this subdivision, but only if, as
28 of February first, nineteen hundred seventy-nine, there is no default in
29 the agreement and all current taxes, assessments or other legal charges
30 have been paid within the time allowed by law. Such rate of interest
31 shall be calculated in the manner and shall be subject to all the condi-
32 tions provided in paragraph six of this subdivision.
33 Upon receipt of the final payment due under an agreement executed
34 pursuant to this paragraph, the commissioner of finance shall discontin-
35 ue the in rem action pending with respect to the parcel which is the
36 subject of such agreement, and shall cancel the lis pendens pertaining
37 thereto by issuing a certificate of withdrawal pursuant to section
38 11-413 of this chapter. In the event of any default in such agreement or
39 any failure to pay current taxes, assessments or other legal charges as
40 they become due or within the grace period provided by law, such agree-
41 ment and the answer which was the basis for the severance of the subject
42 parcel from the in rem action shall both be deemed null and void and the
43 city shall be entitled to acquire title to such parcel by entry of an
44 appropriate supplemental judgment of foreclosure in such in rem action
45 without further notice to the answering party.
46 (6) When an agreement has been entered into pursuant to this subdivi-
47 sion, the commissioner of finance shall, notwithstanding the rates of
48 interest prescribed in section 11-224, 11-312 or 11-313 of this title,
49 charge, collect and receive interest on the arrears due and payable
50 under such agreement, to be calculated at the rate of seven percent per
51 annum from February first, nineteen hundred seventy-nine to the date of
52 payment of each installment. Any interest accrued or accruing prior to
53 February first, nineteen hundred seventy-nine shall not be affected by
54 the provisions of this paragraph, but shall be charged, collected and
55 received in the manner and at the rates specified in section 11-224,
56 11-312 or 11-313 of this title. The seven percent rate of interest spec-
S. 8578 428
1 ified in this paragraph shall be applicable only if (i) there is no
2 default in the agreement entered into as provided in this section, and
3 (ii) all current taxes, assessments or other legal charges are paid as
4 they become due or within the period of grace provided by law. In the
5 event of any default or failure to make timely payment of any current
6 item, the seven percent rate of interest specified in this paragraph
7 shall thereupon cease to be applicable and the commissioner of finance
8 shall thereafter charge, collect and receive interest in the manner and
9 at the rates otherwise specified in this chapter.
10 (7) In addition to the terms and conditions required by this subdivi-
11 sion to be included in agreements authorized by this section, the
12 commissioner of finance may, in his or her discretion, include in such
13 agreements such additional terms and conditions, not inconsistent with
14 this section, as the commissioner determines to be necessary in order to
15 properly carry out the provisions of this section. The commissioner may
16 also adopt such rules and regulations as may be necessary to carry out
17 the provisions of this section.
18 c. (1) If, pursuant to the provisions of section 11-424 of this chap-
19 ter, an application for the release of property acquired by the city
20 through in rem tax foreclosure has been filed within the four-month
21 period specified in subdivision f of such section, and the sixty-day
22 period for payment referred to in such subdivision has not expired prior
23 to the commencement of the period specified in subdivision a of this
24 section, the provisions of this subdivision shall, at the election of
25 the applicant, apply with respect to such application and the release
26 sought thereby, provided notice of such election is given to the commis-
27 sioner of general services during the period specified in subdivision a
28 of this section, but in no event later than the last day of the sixty-
29 day period referred to in subdivision f of section 11-424 of this chap-
30 ter.
31 (2) An applicant who elects to have the provisions of this subdivision
32 apply to him or her, shall, at the time such applicant notifies the
33 commissioner of general services of his or her election, pay to the city
34 the amounts specified in paragraphs two, three and four of subdivision d
35 of section 11-424 of this chapter; for this purpose, the amount speci-
36 fied in paragraph two thereof shall be deemed to be the amount which
37 would have been required to be paid thereunder had this section not been
38 in effect. Concurrent with the making of such payment, the applicant
39 shall enter into an agreement with the commissioner of general services
40 providing for the payment of all current taxes, assessments or other
41 legal charges on the property as they become due or within the grace
42 period provided by law, and, in addition, providing for the payment of
43 the amount specified in paragraph one of subdivision d of section 11-424
44 of this chapter in installments, the first of which shall be equal to at
45 least twenty-five percent of such amount and shall be payable upon the
46 execution of such agreement. The balance of such amount shall be payable
47 in twelve equal quarterly installments, each of which shall be paid
48 quarterly on the first of July, October, January and April.
49 (3) Pending approval by the corporation counsel of an application for
50 release as to form, timeliness and eligibility of the applicant, all
51 payments made pursuant to paragraph three of this subdivision shall be
52 held in escrow; in the event the corporation counsel disapproves the
53 application, such payments shall be returned to the applicant, and the
54 agreement executed by him or her shall thereupon be cancelled.
55 (4) In the case of any agreement made and executed pursuant to para-
56 graph two of this subdivision, interest on any installment due and paya-
S. 8578 429
1 ble thereunder shall, notwithstanding the rates of interest prescribed
2 in section 11-224, 11-312 or 11-313 of this title, be charged, collected
3 and received at the rate of seven percent per annum from February first,
4 nineteen hundred seventy-nine to the date of payment of each install-
5 ment. Any interest accrued or accruing prior to February first, nineteen
6 hundred seventy-nine shall not be affected by the provisions of this
7 paragraph, but shall be charged, collected and received in the manner
8 and at the rates specified in section 11-224, 11-312 or 11-313 of this
9 title. The seven percent rate of interest specified in this paragraph
10 shall be applicable only if (i) there is no default in the agreement
11 entered into as provided in this subdivision, and (ii) all current
12 taxes, assessments or other legal charges are paid as they become due or
13 within the period of grace provided by law.
14 (5) No release for which application has been made pursuant to subdi-
15 vision f of section 11-424 of this chapter shall be granted until the
16 final payment under the agreement herein provided is received by the
17 city. Upon receipt of such final payment by the city the corporation
18 counsel shall effect the release in the manner provided in section
19 11-424 of this chapter. In the event of any default in an agreement
20 executed as provided in this subdivision or any failure to pay current
21 taxes, assessments or other legal charges as they become due or within
22 the grace period provided by law, such agreement shall thereupon become
23 void, the release process shall be terminated and all payments thereto-
24 fore made shall be forfeited to the city.
25 (6) In addition to the terms and conditions required by this subdivi-
26 sion to be included in agreements authorized thereby, the commissioner
27 of general services may, in his or her discretion, include in such
28 agreements such additional terms and conditions, not inconsistent with
29 this subdivision, as the commissioner determines to be necessary in
30 order to properly carry out the provisions hereof. The commissioner of
31 general services may also adopt such rules and regulations as may be
32 necessary to carry out the provisions of this subdivision.
33 § 11-428 Disposition of proceeds of sales of properties acquired by
34 city through tax enforcement foreclosure proceedings. The proceeds of
35 the sale of real property acquired through tax enforcement foreclosure
36 proceedings, or by deed in lieu thereof, including subsequent receipts
37 in diminution of purchase money mortgages accepted at the time of sale,
38 shall be applied as follows:
39 a. The amount of the unpaid real estate taxes accrued against such
40 property from the first of January or the first of July, whichever first
41 immediately precedes the date on which title vested in the city to the
42 date of conveyance of title by the city, without interest or penalties
43 thereon, shall be credited to the tax deficiency account.
44 b. The balance, if any, remaining after deduction of the amount speci-
45 fied in paragraph a hereof, shall be paid into the funds hereinafter
46 specified in the following order:
47 1. A sum equal to the amount of the unpaid assessments for local
48 improvements accrued against such property at the date of commencement
49 of the foreclosure proceeding and up to the date of conveyance of title
50 by the city, without interest or penalties thereon, shall be paid into
51 the appropriate assessment funds.
52 2. A sum equal to the amount of unpaid sewer rents, including interest
53 and penalties thereon, accrued against such property at the date of
54 commencement of the foreclosure proceedings and up to the date of
55 conveyance of title by the city shall be paid into the sewer fund.
S. 8578 430
1 3. The amount of the brokerage fee and other expenses expended by the
2 city in connection with such sale shall be paid into the fund or code to
3 which such fee was charged.
4 4. The balance of such proceeds, if any, and the interest on any
5 purchase money mortgage accepted by the city at the time of such sale
6 shall be paid into the general fund. In the event that any part of such
7 balance is represented by bonds and mortgages, such bonds and mortgages
8 may be deposited in the tax appropriation and general fund stabilization
9 reserve fund and a sum equal to the amount of the cash represented by
10 such bonds and mortgages shall in such event be transferred from the tax
11 appropriation and general fund stabilization reserve fund to the general
12 fund.
13 CHAPTER 5
14 CITY UNINCORPORATED BUSINESS INCOME TAX
15 § 11-501 Meaning of terms. (a) General. Unless a different meaning is
16 clearly required, any term used in this chapter shall have the same
17 meaning as when used in a comparable context in the laws of the United
18 States relating to federal income taxes, and any reference in this chap-
19 ter to the laws of the United States shall mean the provisions of the
20 internal revenue code of nineteen hundred fifty-four, and amendments
21 thereto, and other provisions of the laws of the United States relating
22 to federal income taxes, as the same are included in this chapter as an
23 appendix or as included by reference to an appendix of another chapter
24 enacted by the same law as enacts this chapter. (The quotation of the
25 aforesaid laws of the United States is intended to make them a part of
26 this chapter and to avoid constitutional uncertainties which might
27 result if such laws were merely incorporated by reference. The quotation
28 of a provision of the federal internal revenue code or of any other law
29 of the United States shall not necessarily mean that it is applicable to
30 or has relevance to this chapter.)
31 (b) "State", "this state" or "the state" when used in this chapter
32 shall mean the state of New York.
33 (c) "Local income taxes", when used in this chapter shall mean an
34 income tax imposed by a political subdivision of a state.
35 (d) "Commissioner of finance" when used in this chapter shall mean the
36 commissioner of finance of the city.
37 (e) "Department of finance" when used in this chapter shall mean the
38 department of finance of the city.
39 (f) "Tax appeals tribunal" when used in this chapter shall mean the
40 tax appeals tribunal established by section one hundred sixty-eight of
41 the charter of the preceding municipality as it existed January first,
42 two thousand nine.
43 (g) "Unincorporated business entire net income" when used in this
44 chapter shall mean the excess of the unincorporated business gross
45 income of an unincorporated business over its unincorporated business
46 deductions.
47 (h) "Investment capital" when used in this chapter shall mean invest-
48 ments of the unincorporated business in stocks, bonds and other securi-
49 ties, corporate and governmental (excluding governmental stocks, bonds
50 and other securities the interest or dividends from which are fully
51 exempt from tax under this chapter, other than any such governmental
52 stock, bond or other security which is sold or otherwise disposed of
53 during the taxable year in a transaction which results in a gain or loss
54 which is included in computing unincorporated business entire net income
S. 8578 431
1 for the taxable year), not held for sale to customers in the regular
2 course of business, provided, however, that in the discretion of the
3 commissioner of finance, there shall be deducted from investment capital
4 any liabilities of the unincorporated business which are directly or
5 indirectly attributable to investment capital.
6 (i) "Investment income" when used in this chapter shall mean income,
7 gains and losses from investment capital, to the extent included in
8 computing unincorporated business entire net income, less, in the
9 discretion of the commissioner of finance, any deductions allowable in
10 computing unincorporated business entire net income which are directly
11 or indirectly attributable to investment capital or investment income,
12 provided, however, that in no case shall investment income exceed unin-
13 corporated business entire net income.
14 (j) "Business capital" when used in this chapter shall mean all assets
15 of the unincorporated business other than investment capital, less
16 liabilities of the unincorporated business not deducted from investment
17 capital, except that cash on hand and on deposit shall be treated as
18 investment capital or as business capital as the taxpayer may elect.
19 (k) "Business income" when used in this chapter shall mean unincorpo-
20 rated business entire net income minus investment income.
21 (l) "Dealer" when used in this chapter shall mean an individual or
22 unincorporated entity that (A) holds or disposes of property that is
23 stock in trade of the taxpayer, inventory or is otherwise held for sale
24 to customers in the ordinary course of the taxpayer's trade or business,
25 or (B) regularly offers to enter into, assume, offset, assign or other-
26 wise terminate positions in property with customers in the ordinary
27 course of the taxpayer's trade or business, provided, however, an indi-
28 vidual or unincorporated entity shall not be treated as a dealer based
29 solely on such individual's or entity's ownership of an interest in an
30 entity that is a dealer, and provided, further, that an unincorporated
31 entity shall not be treated as a dealer based solely on the ownership by
32 a dealer of an interest in that unincorporated entity.
33 (m) "Unincorporated entity" when used in this chapter shall include an
34 entity classified as a partnership for federal income tax purposes
35 regardless of whether the entity is formed as a corporation, joint-stock
36 company, joint-stock association, body corporate or body politic or
37 whether the entity is organized under a federal or state statute, or
38 under a statute of a federally recognized Indian tribe, or under a stat-
39 ute of a country other than the United States that describes or refers
40 to the entity as incorporated.
41 § 11-502 Unincorporated business defined. (a) General. An unincorpo-
42 rated business means any trade, business, profession or occupation
43 conducted, engaged in or being liquidated by an individual or unincorpo-
44 rated entity, including a partnership, a fiduciary, a corporation in
45 liquidation or an unincorporated entity that has made the election
46 permitted under paragraph (b) of subdivision one of section 11-602 of
47 this title (but only for the period during which such election is in
48 effect), but not including any entity subject to tax under chapter six
49 of this title and not including any entity doing an insurance business
50 as a member of the New York insurance exchange described in paragraph
51 one of subsection (b) of section six thousand two hundred one of the
52 insurance law. Unincorporated businesses subject to tax under a local
53 law of the city imposing a tax on utilities shall not be subject to tax
54 under this chapter; provided, however, that unincorporated businesses,
55 other than (1) utility businesses subject to the supervision of the
56 state department of public service and (2) for taxable years beginning
S. 8578 432
1 on or after August first, two thousand two, utilities as defined in
2 subdivision six of section 11-1101 of this title, which are subject to
3 tax under a local law of the city imposing a tax on vendors of utility
4 services shall be subject to tax under this chapter on that percentage
5 of their entire net income allocable to the city under section 11-508 of
6 this chapter which their receipts other than those taxable under such
7 local law taxing vendors of utility services is of their total receipts.
8 If an individual or an unincorporated entity carries on wholly or partly
9 in the city two or more unincorporated businesses, all such businesses
10 shall be treated as one unincorporated business for the purposes of this
11 chapter. For purposes of this chapter, an unincorporated entity shall be
12 treated as carrying on any trade, business, profession or occupation
13 carried on in whole or in part in the city by any other unincorporated
14 entity in which the first unincorporated entity owns an interest, and
15 the ownership by an unincorporated entity of an interest in another
16 unincorporated entity that is not carrying on any trade, business,
17 profession, or occupation in whole or in part in the city shall not be
18 deemed the conduct of an unincorporated business by the first unincorpo-
19 rated entity. Notwithstanding anything to the contrary in the preceding
20 sentence, for taxable years beginning on or after August first, two
21 thousand two, an unincorporated business that is a partner in a partner-
22 ship subject to tax under a local law of the city imposing a tax on
23 utilities, as defined in subdivision six of section 11-1101 of this
24 title, shall not be considered to be carrying on the trade, business,
25 profession or occupation carried on by such partnership.
26 (b) Services as employee. The performance of services by an individual
27 as an employee or as an officer or director of a corporation, society,
28 association, or political entity, or as a fiduciary, shall not be deemed
29 an unincorporated business, unless such services constitute part of a
30 business regularly carried on by such individual.
31 (c) Purchase and sale for own account. (1) Definitions. (A) Property.
32 For purposes of this subdivision, property shall mean real and personal
33 property, including but not limited to, property qualifying as invest-
34 ment capital within the meaning of subdivision (h) of section 11-501 of
35 this chapter, other stocks, notes, bonds, debentures, or other evidences
36 of indebtedness, interest rate, currency, or equity notional principal
37 contracts, foreign currencies, interests in, or derivative financial
38 instruments (including options, forward or futures contracts, short
39 positions, and similar financial instruments) in any property described
40 above, and any commodity traded on or subject to the rules of a board of
41 trade or commodity exchange, provided, however, property shall not
42 include: (i) debt instruments issued by the taxpayer; (ii) accounts
43 receivable held by a factor; (iii) property held as stock in trade,
44 inventory or otherwise held for sale to customers in the ordinary course
45 of the taxpayer's trade or business; (iv) debt instruments acquired in
46 the ordinary course of the taxpayer's trade or business for funds
47 loaned, services rendered or for the sale, rental or other transfer of
48 property by the taxpayer; (v) interests in unincorporated entities; or
49 (vi) positions in property described above entered into, assumed,
50 offset, assigned or terminated by a dealer with respect to such posi-
51 tions in property.
52 (B) Investor. For purposes of this subdivision, a taxpayer shall be
53 treated as acquiring, holding or disposing of an interest in an unincor-
54 porated entity as an investor if: (i) the unincorporated entity meets
55 the requirements of subparagraph (B) of paragraph four of this subdivi-
56 sion and the taxpayer does not receive a distributive share of such
S. 8578 433
1 entity's income, gain, loss, deduction, credit and basis from a business
2 carried on in whole or in part in the city that is materially greater
3 than its distributive share of any other item of income, gain, loss
4 deduction, credit or basis of such entity; or (ii) with respect to any
5 other unincorporated entity, the taxpayer is neither a general partner
6 nor authorized under the entity's governing instrument to manage or
7 participate in, nor managing, nor participating in, the day-to-day busi-
8 ness of the unincorporated entity.
9 (2) An individual or other unincorporated entity, except a dealer as
10 defined in subdivision (1) of section 11-501 of this chapter, shall not
11 be deemed engaged in an unincorporated business solely by reason of (A)
12 the purchase, holding and sale for his, her or its own account of prop-
13 erty, as defined in paragraph one of this subdivision, or the entry
14 into, assumption, offset, assignment, or other termination of a position
15 in any property so defined, or both, (B) the acquisition, holding or
16 disposition, other than in the ordinary course of a trade or business,
17 of interests in unincorporated entities engaged solely in activities
18 described in subparagraph (A), (B) or (C) of this paragraph, or (C) any
19 combination of the activities described in subparagraphs (A) and (B) of
20 this paragraph and any other activity not otherwise constituting the
21 conduct of an unincorporated business subject to the tax imposed by this
22 chapter, but this paragraph shall not apply if the unincorporated entity
23 is taxable as a corporation for federal income tax purposes.
24 (3) Notwithstanding anything to the contrary, the receipt by an indi-
25 vidual or other unincorporated entity of twenty-five thousand dollars or
26 less of gross receipts during the taxable year (determined without
27 regard to any deductions) from an unincorporated business wholly or
28 partly carried on within the city by such individual or unincorporated
29 entity shall not cause such individual or other unincorporated entity to
30 be treated as not engaged solely in the activities described in subpara-
31 graph (A), (B) or (C) of paragraph two of this subdivision.
32 (4) (A) If a taxpayer that is an unincorporated entity is primarily
33 engaged in (i) activities described in subparagraph (A), (B) or (C) of
34 paragraph two of this subdivision, or (ii) the acquisition, holding or
35 disposition, other than in the ordinary course of a trade or business,
36 of interests as an investor in unincorporated entities carrying on any
37 unincorporated business in whole or in part in the city, or both, the
38 activities described in subparagraph (A), (B), or (C) of paragraph two
39 of this subdivision carried on by the taxpayer or by any unincorporated
40 entity primarily engaged in the activities described in clause (i) or
41 (ii) of this subparagraph in which the taxpayer owns an interest shall
42 not be deemed an unincorporated business carried on by the taxpayer.
43 (B) For purposes of subparagraph (A) of this paragraph, an unincorpo-
44 rated entity will be treated as primarily engaged in activities
45 described in clause (i) or (ii) of subparagraph (A) of this paragraph,
46 or both, if at least ninety percent of the value of its total assets is
47 represented by assets described in subparagraph (C) of this paragraph.
48 (C) For purposes of subparagraph (B) of this paragraph, assets
49 described in this subparagraph include:
50 (i) property as defined in paragraph one of this subdivision;
51 (ii) interests in unincorporated entities not carrying on any unincor-
52 porated business in whole or in part in the city; and
53 (iii) interests in unincorporated entities carrying on an unincorpo-
54 rated business in whole or in part in the city held by the taxpayer as
55 an investor, as defined in paragraph one of this subdivision.
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1 (D) For purposes of determining whether a taxpayer meets the require-
2 ments of subparagraph (B) of this paragraph, the value of assets
3 described in subparagraph (C) of this paragraph shall be the average
4 monthly gross value of the assets of the taxpayer. For purposes of this
5 paragraph, the value of assets of the taxpayer that consist of real
6 property or marketable securities shall be the fair market value thereof
7 and the value of assets other than real property or marketable securi-
8 ties shall be the value thereof shown on the books and records of the
9 taxpayer in accordance with generally accepted accounting principles. In
10 case it shall appear to the commissioner of finance that the use of
11 gross value in determining whether the requirements of subparagraph (B)
12 of this paragraph are met, improperly or inaccurately reflects the
13 taxpayer's primary activities, the commissioner of finance is authorized
14 in his or her discretion and in such manner as he or she may determine,
15 to reduce the gross value of the taxpayer's assets by liabilities
16 attributable thereto or to eliminate assets, so as to properly and accu-
17 rately reflect the taxpayer's primary activities.
18 (d) Holding, leasing or managing real property. An owner of real prop-
19 erty, a lessee or a fiduciary shall not be deemed engaged in an unincor-
20 porated business solely by reason of holding, leasing or managing real
21 property. If an owner of real property or lessee or fiduciary (except a
22 dealer holding real property primarily for sale to customers in the
23 ordinary course of his or her trade or business) who is holding, leasing
24 or managing real property is also carrying on an unincorporated business
25 in whole or in part in the city, whether or not such unincorporated
26 business is carried on at or is connected with such real property, such
27 holding, leasing or managing of real property shall not be deemed an
28 unincorporated business if, and only to the extent that, such real prop-
29 erty is held, leased or managed for the purpose of producing rental
30 income from such real property or gain upon the sale or other disposi-
31 tion of such real property. For purposes of this subdivision, the
32 conduct by such owner, lessee or fiduciary, at such real property, of a
33 trade, business, profession or occupation, including, but not limited
34 to, a garage, restaurant, laundry or health club, shall be deemed to be
35 an incident to the holding, leasing or managing of such real property,
36 and shall not be deemed the conduct of an unincorporated business, if
37 such trade, business, profession or occupation is conducted solely for
38 the benefit of tenants at such real property, as an incidental service
39 to such tenants, and is not open or available to the general public,
40 provided, however, if any such owner, lessee or fiduciary operates a
41 garage, parking lot or other similar facility at such real property that
42 is open or available to the general public, the provision by any such
43 owner, lessee or fiduciary of the service of parking, garaging or stor-
44 ing of motor vehicles on a monthly or longer term basis shall be deemed
45 to be an incident to the holding, leasing or managing of such real prop-
46 erty, and shall not be deemed the conduct of an unincorporated business
47 if, and only to the extent that, such monthly or longer term parking,
48 garaging or storing service is provided to tenants at such real property
49 as an incidental service to such tenants. If an owner, lessee or fiduci-
50 ary holding, leasing or managing real property operates at such real
51 property a garage, parking lot or other similar facility that is open or
52 available to the public, each such owner, lessee or fiduciary shall
53 file, together with and as a part of the returns required under section
54 11-514 of this chapter, a report or schedule for each such garage, park-
55 ing lot or other similar facility, or in the discretion of the commis-
56 sioner, make a separate entry on such returns, identifying the specific
S. 8578 435
1 location and address, license number and licensed capacity of each such
2 garage, parking lot or other similar facility, and shall include such
3 additional information, data and other matters relating to the provision
4 of such monthly or longer term parking, garaging or storing service to
5 tenants as shall be prescribed by the commissioner of finance. If the
6 separate information required to be reported by any owner, lessee or
7 fiduciary holding, leasing or managing real property for any garage,
8 parking lot or other similar facility at such real property that is open
9 or available to the public is not contained in the returns required
10 under section 11-514 of this chapter, or in any amended returns, in any
11 material respect, the provision of parking, garaging or storing service
12 to tenants at such real property shall be deemed the conduct of an unin-
13 corporated business and not incident to the holding, leasing or managing
14 of such real property.
15 (e) Sales representative. An individual, other than one who maintains
16 an office or who employs one or more assistants or who otherwise regu-
17 larly carries on a business, shall not be deemed engaged in an unincor-
18 porated business solely by reason of selling goods, wares, merchandise
19 or insurance for more than one enterprise. For purposes of this subdi-
20 vision, space utilized solely for the display of merchandise and/or for
21 the maintenance and storage of records normally used in the course of
22 business shall not be deemed an office, and the employment of clerical
23 and secretarial assistance shall not be deemed the employment of assist-
24 ants.
25 (f) Exempt trusts and organizations. A trust or other unincorporated
26 organization which by reason of its purposes or activities is exempt
27 from federal income tax shall not be deemed an unincorporated business
28 regardless of whether subject to federal income tax on unrelated busi-
29 ness taxable income.
30 § 11-503 Imposition of tax. (a) General. A tax at the rate of four
31 percent is hereby imposed for each taxable year, beginning with taxable
32 years ending after January first, nineteen hundred sixty-six, on the
33 unincorporated business taxable income of every unincorporated business
34 wholly or partly carried on within the city. This tax shall be in addi-
35 tion to any other taxes imposed.
36 (b) Credit against tax. (1) For each taxable year beginning after
37 nineteen hundred eighty-six but before nineteen hundred ninety-six:
38 (A) if the tax computed under subdivision (a) of this section is six
39 hundred dollars or less, a credit shall be allowed for the entire amount
40 of such tax;
41 (B) if the tax computed under subdivision (a) of this section exceeds
42 six hundred dollars but is less than eight hundred dollars, a credit
43 shall be allowed in the amount determined by multiplying such tax by a
44 fraction the numerator of which is eight hundred dollars minus the
45 amount of such tax and the denominator of which is two hundred dollars;
46 or
47 (C) if the tax computed under subdivision (a) of this section is eight
48 hundred dollars or more, no credit shall be allowed.
49 (2) For each taxable year beginning in nineteen hundred ninety-six:
50 (A) if the tax computed under subdivision (a) of this section is eight
51 hundred dollars or less, a credit shall be allowed for the entire amount
52 of such tax;
53 (B) if the tax computed under subdivision (a) of this section exceeds
54 eight hundred dollars but is less than one thousand dollars, a credit
55 shall be allowed in the amount determined by multiplying such tax by a
S. 8578 436
1 fraction the numerator of which is one thousand dollars minus the amount
2 of such tax and the denominator of which is two hundred dollars; or
3 (C) if the tax computed under subdivision (a) of this section is one
4 thousand dollars or more, no credit shall be allowed.
5 (3) For each taxable year beginning after nineteen hundred ninety-six
6 but before two thousand nine:
7 (A) if the tax computed under subdivision (a) of this section is one
8 thousand eight hundred dollars or less, a credit shall be allowed for
9 the entire amount of such tax;
10 (B) if the tax computed under subdivision (a) of this section exceeds
11 one thousand eight hundred dollars but is less than three thousand two
12 hundred dollars, a credit shall be allowed in the amount determined by
13 multiplying such tax by a fraction the numerator of which is three thou-
14 sand two hundred dollars minus the amount of such tax and the denomina-
15 tor of which is one thousand four hundred dollars; or
16 (C) if the tax computed under subdivision (a) of this section is three
17 thousand two hundred dollars or more, no credit shall be allowed.
18 (3-a) For each taxable year beginning after two thousand eight:
19 (A) if the tax computed under subdivision (a) of this section is three
20 thousand four hundred dollars or less, a credit shall be allowed for the
21 entire amount of such tax;
22 (B) if the tax computed under subdivision (a) of this section exceeds
23 three thousand four hundred dollars but is less than five thousand four
24 hundred dollars, a credit shall be allowed in the amount determined by
25 multiplying such tax by a fraction the numerator of which is five thou-
26 sand four hundred dollars minus the amount of such tax and the denomina-
27 tor of which is two thousand dollars; or
28 (C) if the tax computed under subdivision (a) of this section is five
29 thousand four hundred dollars or more, no credit shall be allowed.
30 (4) If separate partnerships, joint ventures or other unincorporated
31 entities have substantially the same partners or members, each of such
32 partners or members has substantially the same interest in each of such
33 partnerships, joint ventures or other unincorporated entities, and such
34 partnerships, joint ventures or other unincorporated entities are
35 engaged in substantially the same business or businesses or in substan-
36 tially related businesses, all of such partnerships, joint ventures or
37 other unincorporated entities shall be treated as one unincorporated
38 business for purposes of this subdivision. The provisions of this para-
39 graph shall not be construed to limit or affect the meaning or applica-
40 tion of any other provision of this chapter.
41 (5) Notwithstanding anything to the contrary, the credit allowable
42 under this subdivision shall be taken prior to any other credit allowed
43 by this section.
44 (c) Credit relating to stock transfer tax. (1) In addition to any
45 other credit permitted under this section, a taxpayer shall be allowed a
46 credit, to be credited or refunded in the manner hereinafter provided in
47 this subdivision, against the tax imposed by this chapter after the
48 allowance of any other credit under this section. The amount of such
49 credit shall be fifty percent of the tax incurred in market making tran-
50 sactions under the provisions of article twelve of the tax law on such
51 transactions subject to such tax occurring on and after August first,
52 nineteen hundred seventy-six and paid by such taxpayer, except when such
53 tax shall have been paid pursuant to section two hundred seventy-nine-a
54 of the tax law.
55 (2) For purposes of this subdivision:
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1 a. the term "taxpayer" shall mean any unincorporated business subject
2 to tax under this chapter registered with the United States securities
3 and exchange commission in accordance with subsection (b) of section
4 fifteen of the securities exchange act of nineteen hundred thirty-four,
5 as amended, and acting as a dealer in a transaction described in subpar-
6 agraph b of this paragraph, and
7 b. the term "market making transaction" shall mean any transaction
8 involving a sale, including a short sale, by a dealer of shares or
9 certificates subject to the tax imposed by article twelve of the tax
10 law, provided such shares or certificates are sold:
11 (i) as stock in trade or inventory or as property held for sale in the
12 ordinary course of such dealer's trade or business including transfers
13 which are part of an underwriting,
14 (ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge
15 transaction involving a long or short position in any equity security
16 and a long or short position in a security entitling the holder to
17 acquire or sell such equity security; or (c) a risk arbitrage trans-
18 action in connection with a merger, acquisition, tender offer, recap-
19 italization, reorganization, or similar transaction, or
20 (iii) to offset a transaction made in error.
21 Provided, however, that, except as to subclause (c) of clause (ii) of
22 subparagraph b of this paragraph, the term "market making transaction"
23 shall not include any sale of shares or certificates identified in such
24 dealer's records as a security held for investment within the meaning of
25 section twelve hundred thirty-six of the internal revenue code.
26 (3) The credit allowed under this subdivision for any taxable year
27 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
28 ited or refunded in accordance with the provisions of section 11-526 of
29 this chapter, except as otherwise provided in subdivision (g) of
30 sections 11-512 and 11-514 of this chapter; provided, however, that the
31 provisions of this chapter notwithstanding, the amount to be refunded
32 pursuant to this subdivision shall not be paid prior to the first day of
33 the eighth month following the close of the taxable year, and the
34 provisions of subdivision (c) of section 11-528 of this chapter notwith-
35 standing, interest shall be allowed and paid on the overpayment of the
36 credit under this subdivision from the first day of the eleventh month
37 following the close of the taxable year, or three months after a claim
38 for the credit or refund provided for in this subdivision has been
39 filed, whichever is later.
40 (4) Provided, however, that the credit provided under this subdivi-
41 sion shall be allowed only to the extent that the amount of credit
42 allowable with respect to market making transactions under the
43 provisions of this subdivision (determined without regard to the
44 provisions of this paragraph) exceeds fifty percent of all rebates
45 (provided for under the provisions of section two hundred eighty-a of
46 article twelve of the tax law) allowed for such taxes incurred in the
47 same market making transactions with respect to which the credit is
48 determined. No credit shall be allowed under this subdivision with
49 respect to any tax incurred in market making transactions occurring on
50 or after October first, nineteen hundred eighty-one.
51 (d) Credit relating to certain sales and compensating use taxes. (1)
52 In addition to the credits allowed by subdivisions (b) and (c) of this
53 section, a taxpayer shall be allowed a credit against the tax imposed by
54 this chapter to be credited or refunded in the manner hereinafter
55 provided in this section. The amount of such credit shall be the excess
56 of (A) the amount of sales and compensating use taxes imposed by section
S. 8578 438
1 eleven hundred seven of the tax law during the taxpayer's taxable year
2 which became legally due on or after and was paid on or after July
3 first, nineteen hundred seventy-seven, less any credit or refund of such
4 taxes, with respect to the purchase or use by the taxpayer of machinery
5 or equipment for use or consumption directly and predominantly in the
6 production of tangible personal property, gas, electricity, refriger-
7 ation or steam for sale, by manufacturing, processing, generating,
8 assembling, refining, mining or extracting, or telephone central office
9 equipment or station apparatus or comparable telegraph equipment for use
10 directly and predominantly in receiving at destination or initiating and
11 switching telephone or telegraph communication, but not including parts
12 with a useful life of one year or less or tools or supplies used in
13 connection with such machinery, equipment or apparatus over (B) the
14 amount of any credit for such sales and compensating use taxes allowed
15 or allowable against the taxes imposed by subchapter two of chapter six
16 of this title, for any periods embraced within the taxable year of the
17 taxpayer under this chapter.
18 (2) The credit allowed under this section for any taxable year shall
19 be deemed to be an overpayment of tax by the taxpayer to be credited or
20 refunded, without interest, in accordance with the provisions of section
21 11-526 of this chapter.
22 (3) Where the taxpayer receives a refund or credit of any tax imposed
23 under section eleven hundred seven of the tax law for which the taxpayer
24 had claimed a credit under the provisions of this section in a prior
25 taxable year, the amount of such tax refund or credit shall be added to
26 the tax imposed by this section, and such amount shall be subtracted in
27 computing unincorporated business taxable income for the taxable year.
28 (e) Credit relating to the annual increase in certain payments to a
29 landlord by a taxpayer relocating industrial and commercial employment
30 opportunities. (1) In addition to any other credit allowed by this
31 section, a taxpayer shall be allowed a credit against the tax imposed by
32 this chapter to be credited or refunded, without interest, in the manner
33 hereinafter provided in this section.
34 (A) Where a taxpayer shall have relocated to the city from a location
35 outside the state, and by such relocation shall have created a minimum
36 of one hundred industrial or commercial employment opportunities, and
37 where such taxpayer shall have entered into a written lease for the
38 relocation premises, the terms of which lease provide for increased
39 additional payments to the landlord which are based solely and directly
40 upon any increase or addition in real estate taxes imposed on the leased
41 premises, the taxpayer upon approval and certification by the industrial
42 and commercial incentive board as hereinafter provided shall be entitled
43 to a credit against the tax imposed by this chapter. The amount of such
44 credit shall be: An amount equal to the annual increased payments actu-
45 ally made by the taxpayer to the landlord which are solely and directly
46 attributable to an increase or addition to the real estate tax imposed
47 upon the leased premises. Such credit shall be allowed only to the
48 extent that the taxpayer has not otherwise claimed said amount as a
49 deduction against the tax imposed by this chapter.
50 The industrial and commercial incentive board in approving and certi-
51 fying to the qualifications of the taxpayer to receive the tax credit
52 provided for herein shall first determine that the applicant has met the
53 requirements of this section, and further, that the granting of the tax
54 credit to the applicant is in the "public interest." In determining
55 that the granting of the tax credit is in the public interest, the board
56 shall make affirmative findings that: the granting of the tax credit to
S. 8578 439
1 the applicant will not effect an undue hardship on similar taxpayers
2 already located within the city; the existence of this tax incentive has
3 been instrumental in bringing about the relocation of the applicant to
4 the city; and the granting of the tax credit will foster the economic
5 recovery and economic development of the city.
6 The tax credit, if approved and certified by the industrial and
7 commercial incentive board, must be utilized annually by the taxpayer
8 for the length of the term of the lease or for a period not to exceed
9 ten years from the date of relocation, whichever period is shorter.
10 (B) Definitions: When used in this section, "Employment opportunity"
11 means the creation of a full time position of gainful employment for an
12 industrial or commercial employee and the actual hiring of such employee
13 for the said position.
14 "Industrial employee" means one engaged in the manufacture or assembl-
15 ing of tangible goods or the processing of raw materials.
16 "Commercial employee" means one engaged in the buying, selling or
17 otherwise providing of goods or services other than on a retail basis.
18 "Retail" means the selling or otherwise disposing or furnishing of
19 tangible goods or services directly to the ultimate user or consumer.
20 "Full time position" means the hiring of an industrial or commercial
21 employee in a position of gainful employment where the number of hours
22 worked by such employee is not less than thirty hours during any given
23 week.
24 "Industrial and commercial incentive board" means the board created
25 pursuant to subchapter two of chapter two of this title.
26 (2) The credit allowed under this section for any taxable year shall
27 be deemed to be an overpayment of tax by the taxpayer to be credited or
28 refunded, without interest, in accordance with the provisions of section
29 11-526 of this chapter.
30 (f) Credit relating to certain expenses involved in the cost of relo-
31 cating industrial and commercial employment opportunities. (1) In
32 addition to any other credit allowed by this section, a taxpayer shall
33 be allowed a credit against the tax imposed by this chapter to be cred-
34 ited or refunded in the manner hereinafter provided in this section.
35 The amount of such credit shall be:
36 (A) A maximum of three hundred dollars for each commercial employment
37 and a maximum of five hundred dollars for each industrial employment
38 opportunity relocated to the city from an area outside the state. Such
39 credit shall be allowed to a taxpayer who relocates a minimum of ten
40 employment opportunities. The credit shall be allowed against employment
41 opportunity relocation costs incurred by the taxpayer. Such credit shall
42 be allowed only to the extent that the taxpayer has not claimed a
43 deduction for allowable employment opportunity relocation costs. The
44 credit allowed hereunder may be taken by the taxpayer in whole or in
45 part in the year in which the employment opportunity is relocated by
46 such taxpayer or either of the two years succeeding such event;
47 provided, however, that no credit shall be allowed under this subdivi-
48 sion to a taxpayer for industrial employment opportunities relocated to
49 premises (i) that are within an industrial business zone established
50 pursuant to section 22-626 of the code of the preceding municipality and
51 (ii) for which a binding contract to purchase or lease was first entered
52 into by the taxpayer on or after July first, two thousand five.
53 The commissioner of finance is empowered to promulgate rules and regu-
54 lations and to prescribe the form of application to be used.
55 (B) Definitions: When used in this section, "Employment Opportunity"
56 means the creation of a full time position of gainful employment for an
S. 8578 440
1 industrial or commercial employee and the actual hiring of such employee
2 for the said position.
3 "Industrial Employee" means one engaged in the manufacture or assembl-
4 ing of tangible goods or the processing of raw materials.
5 "Commercial Employee" means one engaged in the buying, selling or
6 otherwise providing of goods or services other than on a retail basis.
7 "Retail" means the selling or otherwise disposing of tangible goods
8 directly to the ultimate user or consumer.
9 "Full Time Position" means the hiring of an industrial or commercial
10 employee in a position of gainful employment where the number of hours
11 worked by such employee is not less than thirty hours during any given
12 work week.
13 "Employment Opportunity Relocation Costs" means the costs incurred by
14 the taxpayer in moving furniture, files, papers and office equipment
15 into the city from a location outside the state; the costs incurred by
16 the taxpayer in the moving from a location outside the state; the costs
17 of installation of telephones and other communications equipment
18 required as a result of the relocation to the city from a location
19 outside the state; the cost incurred in the purchase of office furniture
20 and fixtures required as a result of the relocation to the city from a
21 location outside the state; and the cost of renovation of the premises
22 to be occupied as a result of the relocation provided, however, that
23 such renovation costs shall be allowable only to the extent that they do
24 not exceed seventy-five cents per square foot of the total area utilized
25 by the taxpayer in the occupied premises.
26 (2) The credit allowed under this section for any taxable year shall
27 be deemed to be an overpayment of tax by the taxpayer to be credited or
28 refunded without interest, in accordance with the provisions of section
29 11-526 of this chapter.
30 (i) Relocation and employment assistance credit. (1) In addition to
31 any other credit allowed by this section, a taxpayer that has obtained
32 the certifications required by chapter six-B of title twenty-two of the
33 code of the preceding municipality shall be allowed a credit against the
34 tax imposed by this chapter. The amount of the credit shall be the
35 amount determined by multiplying five hundred dollars or, in the case of
36 a taxpayer that has obtained pursuant to chapter six-B of such title
37 twenty-two a certification of eligibility dated on or after July first,
38 nineteen hundred ninety-five, one thousand dollars or, in the case of an
39 eligible business that has obtained pursuant to chapter six-B of such
40 title twenty-two a certification of eligibility dated on or after July
41 first, two thousand, for a relocation to eligible premises located with-
42 in a revitalization area defined in subdivision (n) of section 22-621 of
43 the code of the preceding municipality, three thousand dollars, by the
44 number of eligible aggregate employment shares maintained by the taxpay-
45 er during the taxable year with respect to particular premises to which
46 the taxpayer has relocated; provided, however, with respect to a relo-
47 cation for which no application for a certificate of eligibility is
48 submitted prior to July first, two thousand three, to eligible premises
49 that are not within a revitalization area, if the date of such relo-
50 cation as determined pursuant to subdivision (j) of section 22-621 of
51 the code of the preceding municipality is before July first, nineteen
52 hundred ninety-five, the amount to be multiplied by the number of eligi-
53 ble aggregate employment shares shall be five hundred dollars, and with
54 respect to a relocation for which no application for a certificate of
55 eligibility is submitted prior to July first, two thousand three, to
56 eligible premises that are within a revitalization area, if the date of
S. 8578 441
1 such relocation as determined pursuant to subdivision (j) of such
2 section is before July first, nineteen hundred ninety-five, the amount
3 to be multiplied by the number of eligible aggregate employment shares
4 shall be five hundred dollars, and if the date of such relocation as
5 determined pursuant to subdivision (j) of such section is on or after
6 July first, nineteen hundred ninety-five, and before July first, two
7 thousand, one thousand dollars; provided, however, that no credit shall
8 be allowed for the relocation of any retail activity or hotel services;
9 provided, further, that no credit shall be allowed under this subdivi-
10 sion to any taxpayer that has elected pursuant to subdivision (d) of
11 section 22-622 of the code of the preceding municipality to take such
12 credit against a gross receipts tax imposed under chapter eleven of this
13 title; and provided that in the case of an eligible business that has
14 obtained pursuant to chapter six-B of such title twenty-two certif-
15 ications of eligibility for more than one relocation, the portion of the
16 total amount of eligible aggregate employment shares to be multiplied by
17 the dollar amount specified in this paragraph for each such certif-
18 ication of a relocation shall be the number of total attributed eligible
19 aggregate employment shares determined with respect to such relocation
20 pursuant to subdivision (o) of section 22-621 of the code of the preced-
21 ing municipality. For purposes of this subdivision, the terms "eligible
22 aggregate employment shares," "relocate," "retail activity" and "hotel
23 services" shall have the meanings ascribed by section 22-621 of the code
24 of the preceding municipality.
25 (2) The credit allowed under this subdivision with respect to eligible
26 aggregate employment shares maintained with respect to particular prem-
27 ises to which the taxpayer has relocated shall be allowed for the first
28 taxable year during which such eligible aggregate employment shares are
29 maintained with respect to such premises and for any of the twelve
30 succeeding taxable years during which eligible aggregate employment
31 shares are maintained with respect to such premises; provided that the
32 credit allowed for the twelfth succeeding taxable year shall be calcu-
33 lated by multiplying the number of eligible aggregate employment shares
34 maintained with respect to such premises in the twelfth succeeding taxa-
35 ble year by the lesser of one and a fraction the numerator of which is
36 such number of days in the taxable year of relocation less the number of
37 days the eligible business maintained employment shares in the eligible
38 premises in the taxable year of relocation and the denominator of which
39 is the number of days in such twelfth succeeding taxable year during
40 which such eligible aggregate employment shares are maintained with
41 respect to such premises. Except as provided in paragraph four of this
42 subdivision, if the amount of the credit allowable under this subdivi-
43 sion for any taxable year exceeds the tax imposed for such year, the
44 excess may be carried over, in order, to the five immediately succeeding
45 taxable years and, to the extent not previously deductible, may be
46 deducted from the taxpayer's tax for such years.
47 (3) The credit allowable under this subdivision shall be deducted
48 after the credits allowed by subdivisions (b) and (j) of this section,
49 but prior to the deduction of any other credit allowed by this section.
50 (4) In the case of a taxpayer that has obtained a certification of
51 eligibility pursuant to chapter six-B of title twenty-two of the code of
52 the preceding municipality dated on or after July first, two thousand
53 for a relocation to eligible premises located within the revitalization
54 area defined in subdivision (n) of section 22-621 of the code of the
55 preceding municipality, the credits allowed under this subdivision, or
56 in the case of a taxpayer that has relocated more than once, the portion
S. 8578 442
1 of such credits attributed to such certification of eligibility pursuant
2 to paragraph one of this subdivision, against the tax imposed by this
3 chapter for the taxable year of such relocation and for the four taxable
4 years immediately succeeding the taxable year of such relocation, shall
5 be deemed to be overpayments of tax by the taxpayer to be credited or
6 refunded, without interest, in accordance with the provisions of section
7 11-526 of this chapter. For such taxable years, such credits or portions
8 thereof may not be carried over to any succeeding taxable year;
9 provided, however, that this paragraph shall not apply to any relocation
10 for which an application for a certification of eligibility was not
11 submitted prior to July first, two thousand three, unless the date of
12 such relocation is on or after July first, two thousand.
13 (j) (1) If a partner in an unincorporated business is taxable under
14 this chapter and is required to include in unincorporated business taxa-
15 ble income his, her or its distributive share of income, gain, loss and
16 deductions of, or guaranteed payments from, such unincorporated busi-
17 ness, such partner shall be allowed a credit against the tax imposed by
18 this chapter equal to the lesser of the amounts determined in subpara-
19 graphs (A) and (B) of this paragraph:
20 (A) The amount determined in this subparagraph is the product of (i)
21 the sum of (I) the tax imposed by this chapter on the unincorporated
22 business for its taxable year ending within or with the taxable year of
23 the partner and paid by the unincorporated business and (II) the amount
24 of any credit or credits taken by the unincorporated business under this
25 section (except the credit allowed by subdivision (b) of this section)
26 for its taxable year ending within or with the taxable year of the part-
27 ner, to the extent that such credits do not reduce such unincorporated
28 business's tax below zero, and (ii) a fraction, the numerator of which
29 is the net total of the partner's distributive share of income, gain,
30 loss and deductions of, and guaranteed payments from, the unincorporated
31 business for such taxable year, and the denominator of which is the sum,
32 for such taxable year, of the net total distributive shares of income,
33 gain, loss and deductions of, and guaranteed payments to, all partners
34 in the unincorporated business for whom or which such net total, as
35 separately determined for each partner, is greater than zero.
36 (B) The amount determined in this subparagraph is the difference
37 between (i) the tax computed pursuant to this chapter on the unincorpo-
38 rated business taxable income of the partner, without allowance of any
39 credits allowed by this section, and (ii) the tax so computed, deter-
40 mined as if the partner had no such distributive share or guaranteed
41 payments with respect to the unincorporated business, provided, however,
42 that the amounts computed in clauses (i) and (ii) of this subparagraph
43 shall be computed with the following modifications:
44 (I) such amounts shall be computed without taking into account any
45 carryforward or carryback by the partner of a net operating loss;
46 (II) if, prior to taking into account any distributive share or guar-
47 anteed payments from any unincorporated business or any net operating
48 loss carryforward or carryback, the unincorporated business taxable
49 income of the partner is less than zero, such unincorporated business
50 taxable income shall be treated as zero; and
51 (III) if such partner's net total distributive share of income, gain,
52 loss and deductions of, and guaranteed payments from, any unincorporated
53 business is less than zero, such net total shall be treated as zero. The
54 amount determined in this subparagraph shall not be less than zero.
55 (2) (A) Notwithstanding anything to the contrary in paragraph one of
56 this subdivision, the credit or the sum of the credits that may be taken
S. 8578 443
1 by a partner for a taxable year under this subdivision with respect to
2 an unincorporated business or unincorporated businesses in which he, she
3 or it is a partner shall not exceed the tax imposed on the unincorporat-
4 ed business taxable income of such partner under this chapter for such
5 taxable year reduced by the credit allowed under subdivision (b) of this
6 section. If the credit allowed under paragraph one of this subdivision
7 or the sum of such credits exceeds such tax as so reduced, the amount of
8 the excess may be carried forward, in order, to each of the seven imme-
9 diately succeeding taxable years and, to the extent not previously
10 taken, shall be allowed as a credit in each of such years, provided, the
11 credit determined for the taxable year under paragraph one of this
12 subdivision shall be taken before taking any credit carryforward pursu-
13 ant to this paragraph and the credit carryforward attributable to the
14 earliest taxable year shall be taken before taking a credit carryforward
15 attributable to a subsequent taxable year.
16 (B) Notwithstanding anything to the contrary in subparagraph (A) of
17 this paragraph, in the case of a partner which is a partnership, no
18 credit carryforward to any taxable year shall be allowed unless one or
19 more of the partners therein during such taxable year were persons
20 having a proportionate interest or interests, amounting to at least
21 eighty percent of all such interests, in the unincorporated business
22 gross income and unincorporated business deductions of the partnership
23 which was allowed the credit for which a carryforward is claimed. In
24 such event, the carryforward allowable on account of such credit shall
25 not exceed the percentage of the amount otherwise allowable, determined
26 by dividing (i) the sum of the proportionate interests in the unincorpo-
27 rated business gross income and unincorporated business deductions of
28 the partnership, for the year to which the credit is carried forward,
29 attributable to such partners, by (ii) the sum of such proportionate
30 interests owned by all partners for such taxable year. The amount by
31 which the carryforward otherwise allowable exceeds the amount allowable
32 pursuant to this subparagraph shall not be a carryforward to any other
33 taxable year.
34 (3) The credit allowed under this subdivision shall not be allowed to
35 a partner in an unincorporated business with respect to any tax paid by
36 the unincorporated business under this chapter for any taxable year
37 beginning before July first, nineteen hundred ninety-four.
38 (4) Notwithstanding anything to the contrary, the credit allowable
39 under this subdivision shall be taken after the credit allowed by subdi-
40 vision (b) of this section is taken, but before any other credit allowed
41 by this section is taken.
42 (5) The commissioner of finance of the city of Staten Island shall
43 convene a working group, consisting of representatives of the department
44 of finance of the city of Staten Island and representatives of affected
45 industries, and other persons the commissioner deems appropriate, to
46 study the treatment under the unincorporated business tax of income from
47 investment and real estate activities and the impact of the credit
48 permitted by this subdivision, including but not limited to cases where
49 interests in a taxpayer are held by another taxpayer subject to tax on
50 unincorporated business taxable income and the first taxpayer is enti-
51 tled to claim a deduction for a net operating loss carryover and the
52 second is not entitled to a corresponding deduction with the result, in
53 certain cases, that the net income allocated to the second taxpayer may
54 be subject to an effective rate of tax in excess of the rate imposed by
55 this chapter. In addition, the working group shall also study the tax
56 treatment of parking garages which are open or available to the general
S. 8578 444
1 public and which also provide available space to tenants. In conducting
2 such study, such working group shall take into account such factors as
3 economic development, tax administration and other goals of tax policy
4 and shall consider alternatives that would reduce disincentives for
5 investing in corporations and other entities engaged in business in the
6 city of Staten Island, such as exempting income from investment activ-
7 ities from the tax on unincorporated business taxable income. The
8 commissioner shall prepare a report based on the deliberations of the
9 working group on or before April fifteenth, nineteen hundred ninety-
10 five.
11 (k) Credit relating to certain sales and compensating use taxes on
12 certain services. (1) In addition to any other credit allowed by this
13 section, a taxpayer shall be allowed a credit against the tax imposed by
14 this chapter to be credited or refunded in the manner hereinafter
15 provided in this subdivision. The amount of such credit shall be equal
16 to the amount of sales and compensating use taxes imposed by section
17 eleven hundred seven of the tax law during the taxpayer's taxable year,
18 and the amount of any interest imposed in connection therewith, which
19 was paid after January first, nineteen hundred ninety-five, less any
20 credit or refund of such taxes (or such interest), with respect to the
21 purchase or use by the taxpayer of the services described in subdivision
22 (b) of section eleven hundred five-b of the tax law.
23 (2) The credit allowed under this subdivision for any taxable year
24 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
25 ited or refunded, without interest, in accordance with the provisions of
26 section 11-526 of this chapter.
27 (3) Where the taxpayer receives a refund or credit of any tax imposed
28 under section eleven hundred seven of the tax law, or of any interest
29 imposed in connection therewith, for which the taxpayer had claimed a
30 credit under this subdivision in a prior taxable year, the amount of
31 such tax, or such interest, refund or credit shall be added to the tax
32 imposed by this chapter, and such amount shall be subtracted in comput-
33 ing unincorporated business taxable income for the taxable year.
34 (l) Lower Manhattan relocation and employment assistance credit. (1)
35 In addition to any other credit allowed by this section, a taxpayer that
36 has obtained the certifications required by chapter six-C of title twen-
37 ty-two of the code of the preceding municipality shall be allowed a
38 credit against the tax imposed by this chapter. The amount of the credit
39 shall be the amount determined by multiplying three thousand dollars by
40 the number of eligible aggregate employment shares maintained by the
41 taxpayer during the taxable year with respect to eligible premises to
42 which the taxpayer has relocated; provided, however, that no credit
43 shall be allowed for the relocation of any retail activity or hotel
44 services; provided, further, that no credit shall be allowed under this
45 subdivision to any taxpayer that has elected pursuant to subdivision (d)
46 of section 22-624 of the code of the preceding municipality to take such
47 credit against a gross receipts tax imposed under chapter eleven of this
48 title. For purposes of this subdivision, the terms "eligible aggregate
49 employment shares", "eligible premises", "relocate", "retail activity"
50 and "hotel services" shall have the meanings ascribed by section 22-623
51 of the code of the preceding municipality.
52 (2) The credit allowed under this subdivision with respect to eligible
53 aggregate employment shares maintained with respect to eligible premises
54 to which the taxpayer has relocated shall be allowed for the taxable
55 year of the relocation and for any of the twelve succeeding taxable
56 years during which eligible aggregate employment shares are maintained
S. 8578 445
1 with respect to eligible premises; provided that the credit allowed for
2 the twelfth succeeding taxable year shall be calculated by multiplying
3 the number of eligible aggregate employment shares maintained with
4 respect to eligible premises in the twelfth succeeding taxable year by
5 the lesser of one and a fraction the numerator of which is such number
6 of days in the taxable year of relocation less the number of days the
7 taxpayer maintained employment shares in eligible premises in the taxa-
8 ble year of relocation and the denominator of which is the number of
9 days in such twelfth succeeding taxable year during which such eligible
10 aggregate employment shares are maintained with respect to such prem-
11 ises.
12 (3) Except as provided in paragraph four of this subdivision, if the
13 amount of the credit allowable under this subdivision for any taxable
14 year exceeds the tax imposed for such year, the excess may be carried
15 over, in order, to the five immediately succeeding taxable years and, to
16 the extent not previously deductible, may be deducted from the taxpay-
17 er's tax for such years.
18 (4) The credits allowed under this subdivision, against the tax
19 imposed by this chapter for the taxable year of the relocation and for
20 the four taxable years immediately succeeding the taxable year of such
21 relocation, shall be deemed to be overpayments of tax by the taxpayer to
22 be credited or refunded, without interest, in accordance with the
23 provisions of section 11-526 of this chapter. For such taxable years,
24 such credits or portions thereof may not be carried over to any succeed-
25 ing taxable year.
26 (5) The credit allowable under this subdivision shall be deducted
27 after the credits allowed by subdivisions (b), (i) and (j) of this
28 section, but prior to the deduction of any other credit allowed by this
29 section.
30 (n) Industrial business zone tax credit. (1) For taxable years begin-
31 ning on or after January first, two thousand six, in addition to any
32 other credit allowed by this section, an eligible business that first
33 enters into a binding contract on or after July first, two thousand five
34 to purchase or lease eligible premises to which it relocates shall be
35 allowed a one-time credit against the tax imposed by this chapter to be
36 credited or refunded in the manner hereinafter provided in this subdivi-
37 sion. The amount of such credit shall be one thousand dollars per full-
38 time employee; provided, however, that the amount of such credit shall
39 not exceed the lesser of actual relocation costs or one hundred thousand
40 dollars.
41 (2) When used in this subdivision, the following terms shall have the
42 following meanings:
43 "Eligible business" means any business subject to tax under this chap-
44 ter that (A) has been conducting substantial business operations and
45 engaging primarily in industrial and manufacturing activities at one or
46 more locations within the city of Staten Island or outside the state of
47 New York continuously during the twenty-four consecutive full months
48 immediately preceding relocation, (B) has leased the premises from which
49 it relocates continuously during the twenty-four consecutive full months
50 immediately preceding relocation, (C) first enters into a binding
51 contract on or after July first, two thousand five to purchase or lease
52 eligible premises to which such business will relocate, and (D) will be
53 engaged primarily in industrial and manufacturing activities at such
54 eligible premises.
55 "Eligible premises" means premises located entirely within an indus-
56 trial business zone. For any eligible business, an industrial business
S. 8578 446
1 zone tax credit shall not be granted with respect to more than one
2 eligible premises.
3 "Full-time employee" means (A) one person gainfully employed in an
4 eligible premises by an eligible business where the number of hours
5 required to be worked by such person is not less than thirty-five hours
6 per week; or (B) two persons gainfully employed in an eligible premises
7 by an eligible business where the number of hours required to be worked
8 by each such person is more than fifteen hours per week but less than
9 thirty-five hours per week.
10 "Industrial business zone" means an area within the city of Staten
11 Island established pursuant to section 22-626 of the code of the preced-
12 ing municipality.
13 "Industrial business zone tax credit" means a credit, as provided for
14 in this subdivision, against a tax imposed under this chapter.
15 "Industrial and manufacturing activities" means activities involving
16 the assembly of goods to create a different article, or the processing,
17 fabrication, or packaging of goods. Industrial and manufacturing activ-
18 ities shall not include waste management or utility services.
19 "Relocation" means the physical relocation of furniture, fixtures,
20 equipment, machinery and supplies directly to an eligible premises, from
21 one or more locations of an eligible business, including at least one
22 location at which such business conducts substantial business operations
23 and engages primarily in industrial and manufacturing activities. For
24 purposes of this subdivision, the date of relocation shall be (A) the
25 date of the completion of the relocation to the eligible premises or (B)
26 ninety days from the commencement of the relocation to the eligible
27 premises, whichever is earlier.
28 "Relocation costs" means costs incurred in the relocation of such
29 furniture, fixtures, equipment, machinery and supplies, including, but
30 not limited to, the cost of dismantling and reassembling equipment and
31 the cost of floor preparation necessary for the reassembly of the equip-
32 ment. Relocation costs shall include only such costs that are incurred
33 during the ninety-day period immediately following the commencement of
34 the relocation to an eligible premises. Relocation costs shall not
35 include any costs for structural or capital improvements or items
36 purchased in connection with the relocation.
37 (3) The credit allowed under this subdivision for any taxable year
38 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
39 ited or refunded without interest, in accordance with the provisions of
40 section 11-526 of this chapter.
41 (4) The number of full-time employees for the purposes of calculating
42 an industrial business zone tax credit shall be the average number of
43 full-time employees, calculated on a weekly basis, employed in the
44 eligible premises by the eligible business in the fifty-two week period
45 immediately following relocation.
46 (5) The credit allowed under this subdivision must be taken by the
47 taxpayer in the taxable year in which such fifty-two week period ends.
48 (6) For the purposes of calculating entire net income in the taxable
49 year that an industrial business zone tax credit is allowed, a taxpayer
50 must add back the amount of the credit allowed under this subdivision,
51 to the extent of any relocation costs deducted in the current taxable
52 year or a prior taxable year in calculating federal taxable income.
53 (7) The credit allowed under this subdivision shall not be granted for
54 an eligible business for more than one relocation. Notwithstanding the
55 foregoing, an industrial business zone tax credit allowed under this
56 subdivision shall not be granted if the eligible business receives bene-
S. 8578 447
1 fits pursuant to chapter six-B or six-C of title twenty-two of the code
2 of the preceding municipality, through a grant program administered by
3 the business relocation assistance corporation, or through the Staten
4 Island city printers relocation fund grant.
5 (8) The commissioner of finance is authorized to promulgate rules and
6 regulations and to prescribe forms necessary to effectuate the purposes
7 of this subdivision.
8 The commissioner of finance is empowered to promulgate rules and regu-
9 lations and to prescribe the form of application to be used.
10 (B) Definitions: When used in this section, "Employment Opportunity"
11 means the creation of a full time position of gainful employment for an
12 industrial or commercial employee and the actual hiring of such employee
13 for the said position.
14 "Industrial Employee" means one engaged in the manufacture or assembl-
15 ing of tangible goods or the processing of raw materials.
16 "Commercial Employee" means one engaged in the buying, selling or
17 otherwise providing of goods or services other than on a retail basis.
18 "Retail" means the selling or otherwise disposing of tangible goods
19 directly to the ultimate user or consumer.
20 "Full Time Position" means the hiring of an industrial or commercial
21 employee in a position of gainful employment where the number of hours
22 worked by such employee is not less than thirty hours during any given
23 work week.
24 "Employment Opportunity Relocation Costs" means the costs incurred by
25 the taxpayer in moving furniture, files, papers and office equipment
26 into the city from a location outside the state; the costs incurred by
27 the taxpayer in the moving from a location outside the state; the costs
28 of installation of telephones and other communications equipment
29 required as a result of the relocation to the city from a location
30 outside the state; the cost incurred in the purchase of office furniture
31 and fixtures required as a result of the relocation to the city from a
32 location outside the state; and the cost of renovation of the premises
33 to be occupied as a result of the relocation provided, however, that
34 such renovation costs shall be allowable only to the extent that they do
35 not exceed seventy-five cents per square foot of the total area utilized
36 by the taxpayer in the occupied premises.
37 (2) The credit allowed under this section for any taxable year shall
38 be deemed to be an overpayment of tax by the taxpayer to be credited or
39 refunded without interest, in accordance with the provisions of section
40 11-526 of this chapter.
41 (o) Biotechnology credit. (a)(1) A taxpayer that is a qualified emerg-
42 ing technology company, engages in biotechnologies, and meets the eligi-
43 bility requirements of this subdivision, shall be allowed a credit
44 against the tax imposed by this subchapter. The amount of credit shall
45 be equal to the sum of the amounts specified in subparagraphs three,
46 four and five of this paragraph, subject to the limitations in subpara-
47 graph seven of this paragraph and paragraph (b) of this subdivision. For
48 the purposes of this subdivision, "qualified emerging technology compa-
49 ny" shall mean a company located in city: (A) whose primary products or
50 services are classified as emerging technologies and whose total annual
51 product sales are ten million dollars or less; or (B) a company that has
52 research and development activities in city and whose ratio of research
53 and development funds to net sales equals or exceeds the average ratio
54 for all surveyed companies classified as determined by the National
55 Science Foundation in the most recent published results from its Survey
56 of Industry Research and Development, or any comparable successor survey
S. 8578 448
1 as determined by the department, and whose total annual product sales
2 are ten million dollars or less. For the purposes of this subdivision,
3 the definition of research and development funds shall be the same as
4 that used by the National Science Foundation in the aforementioned
5 survey. For the purposes of this subdivision, "biotechnologies" shall
6 mean the technologies involving the scientific manipulation of living
7 organisms, especially at the molecular and/or the sub-molecular genetic
8 level, to produce products conducive to improving the lives and health
9 of plants, animals, and humans; and the associated scientific research,
10 pharmacological, mechanical, and computational applications and services
11 connected with these improvements. Activities included with such appli-
12 cations and services shall include, but not be limited to, alternative
13 mRNA splicing, DNA sequence amplification, antigenetic switching bioaug-
14 mentation, bioenrichment, bioremediation, chromosome walking, cytogenet-
15 ic engineering, DNA diagnosis, fingerprinting, and sequencing, electro-
16 poration, gene translocation, genetic mapping, site-directed
17 mutagenesis, bio-transduction, bio-mechanical and bio-electrical engi-
18 neering, and bio-informatics.
19 (2) An eligible taxpayer shall (A) have no more than one hundred full-
20 time employees, of which at least seventy-five percent are employed in
21 the city, (B) have a ratio of research and development funds to net
22 sales, as referred to in section thirty-one hundred two-e of the public
23 authorities law, which equals or exceeds six percent during the calendar
24 year ending with or within the taxable year for which the credit is
25 claimed, and (C) have gross revenues, along with the gross revenues of
26 its "affiliates" and "related members" not exceeding twenty million
27 dollars for the calendar year immediately preceding the calendar year
28 ending with or within the taxable year for which the credit is claimed.
29 For the purposes of this subdivision, "affiliates" shall mean those
30 corporations that are members of the same affiliated group, as defined
31 in section fifteen hundred four of the internal revenue code, as the
32 taxpayer. For the purposes of this subdivision, "related members" shall
33 mean a person, corporation, or other entity, including an entity that is
34 treated as a partnership or other pass-through vehicle for purposes of
35 federal taxation, whether such person, corporation or entity is a
36 taxpayer or not, where one such person, corporation or entity, or set of
37 related persons, corporations or entities, directly or indirectly owns
38 or controls a controlling interest in another entity. Such entity or
39 entities may include all taxpayers under chapters six, eleven and seven-
40 teen of this title, and subchapters two and three of this chapter. A
41 controlling interest shall mean, in the case of a corporation, either
42 thirty percent or more of the total combined voting power of all classes
43 of stock of such corporation, or thirty percent or more of the capital,
44 profits or beneficial interest in such voting stock of such corporation;
45 and in the case of a partnership, association, trust or other entity,
46 thirty percent or more of the capital, profits or beneficial interest in
47 such partnership, association, trust or other entity.
48 (3) An eligible taxpayer shall be allowed a credit for eighteen per
49 centum of the cost or other basis for federal income tax purposes of
50 research and development property that is acquired by the taxpayer by
51 purchase as defined in section 179(d) of the internal revenue code and
52 placed in service during the calendar year that ends with or within the
53 taxable year for which the credit is claimed. Provided, however, for the
54 purposes of this paragraph only, an eligible taxpayer shall be allowed a
55 credit for such percentage of the (A) cost or other basis for federal
56 income tax purposes for property used in the testing or inspection of
S. 8578 449
1 materials and products, (B) the costs or expenses associated with quali-
2 ty control of the research and development, (C) fees for use of sophis-
3 ticated technology facilities and processes, (D) fees for the production
4 or eventual commercial distribution of materials and products resulting
5 from the activities of an eligible taxpayer as long as such activities
6 fall under activities relating to biotechnologies. The costs, expenses
7 and other amounts for which a credit is allowed and claimed under this
8 paragraph shall not be used in the calculation of any other credit
9 allowed under this subchapter. For the purposes of this subdivision,
10 "research and development property" shall mean property that is used for
11 purposes of research and development in the experimental or laboratory
12 sense. Such purposes shall not be deemed to include the ordinary testing
13 or inspection of materials or products for quality control, efficiency
14 surveys, management studies, consumer surveys, advertising, promotions,
15 or research in connection with literary, historical or similar projects.
16 (4) An eligible taxpayer shall be allowed a credit for nine per centum
17 of qualified research expenses paid or incurred by the taxpayer in the
18 calendar year ending with or within the taxable year for which the cred-
19 it is claimed. For the purposes of this subdivision, "qualified research
20 expenses" shall mean expenses associated with in-house research and
21 processes, and costs associated with the dissemination of the results of
22 the products that directly result from such research and development
23 activities; provided, however, that such costs shall not include adver-
24 tising or promotion through media. In addition, costs associated with
25 the preparation of patent applications, patent application filing fees,
26 patent research fees, patent examinations fees, patent post allowance
27 fees, patent maintenance fees, and grant application expenses and fees
28 shall qualify as qualified research expenses. In no case shall the cred-
29 it allowed under this paragraph apply to expenses for litigation or the
30 challenge of another entity's intellectual property rights, or for
31 contract expenses involving outside paid consultants.
32 (5) An eligible taxpayer shall be allowed a credit for qualified high-
33 technology training expenditures as described in this paragraph paid or
34 incurred by the taxpayer during the calendar year that ends with or
35 within the taxable year for which the credit is claimed.
36 (A) The amount of credit shall be one hundred percent of the training
37 expenses described in subparagraph (C) of this paragraph, subject to a
38 limitation of no more than four thousand dollars per employee per calen-
39 dar year for such training expenses.
40 (B) Qualified high-technology training shall include a course or
41 courses taken and satisfactorily completed by an employee of the taxpay-
42 er at an accredited, degree granting post-secondary college or universi-
43 ty in city that (i) directly relates to biotechnology activities, and
44 (ii) is intended to upgrade, retrain or improve the productivity or
45 theoretical awareness of the employee. Such course or courses may
46 include, but are not limited to, instruction or research relating to
47 techniques, meta, macro, or micro-theoretical or practical knowledge
48 bases or frontiers, or ethical concerns related to such activities. Such
49 course or courses shall not include classes in the disciplines of
50 management, accounting or the law or any class designed to fulfill the
51 discipline specific requirements of a degree program at the associate,
52 baccalaureate, graduate or professional level of these disciplines.
53 Satisfactory completion of a course or courses shall mean the earning
54 and granting of credit or equivalent unit, with the attainment of a
55 grade of "B" or higher in a graduate level course or courses, a grade of
56 "C" or higher in an undergraduate level courses or courses, or a similar
S. 8578 450
1 measure of competency for a course that is not measured according to a
2 standard grade formula.
3 (C) Qualified high-technology training expenditures shall include
4 expenses for tuition and mandatory fees, software required by the insti-
5 tution, fees for textbooks or other literature required by the institu-
6 tion offering the course or courses, minus applicable scholarships and
7 tuition or fee waivers not granted by the taxpayer or any affiliates of
8 the taxpayer, that are paid or reimbursed by the taxpayer. Qualified
9 high-technology expenditures do not include room and board, computer
10 hardware or software not specifically assigned for such course or cours-
11 es, late-charges, fines or membership dues and similar expenses. Such
12 qualified expenditures shall not be eligible for the credit provided by
13 this section unless the employee for whom the expenditures are disbursed
14 is continuously employed by the taxpayer in a full-time, full-year posi-
15 tion primarily located at a qualified site during the period of such
16 coursework and lasting through at least one hundred eighty days after
17 the satisfactory completion of the qualifying course-work. Qualified
18 high-technology training expenditures shall not include expenses for
19 in-house or shared training outside of a city higher education institu-
20 tion or the use of consultants outside of credit granting courses,
21 whether such consultants function inside of such higher education insti-
22 tution or not.
23 (D) If a taxpayer relocates from an academic business incubator facil-
24 ity partnered with an accredited post-secondary education institution
25 located within city, which provides space and business support services
26 to taxpayers, to another site, the credit provided in this subdivision
27 shall be allowed for all expenditures referenced in subparagraph (C) of
28 this paragraph paid or incurred in the two preceding calendar years that
29 the taxpayer was located in such an incubator facility for employees of
30 the taxpayer who also relocate from said incubator facility to such city
31 site and are employed and primarily located by the taxpayer in city.
32 Such expenditures in the two preceding years shall be added to the
33 amounts otherwise qualifying for the credit provided by this subdivision
34 that were paid or incurred in the calendar year that the taxpayer relo-
35 cates from such a facility. Such expenditures shall include expenses
36 paid for an eligible employee who is a full-time, full-year employee of
37 said taxpayer during the calendar year that the taxpayer relocated from
38 an incubator facility notwithstanding (i) that such employee was
39 employed full or part-time as an officer, staff-person or paid intern of
40 the taxpayer when such taxpayer was located at such incubator facility
41 or (ii) that such employee was not continuously employed when such
42 taxpayer was located at the incubator facility during the one hundred
43 eighty day period referred to in subparagraph (C) of this paragraph,
44 provided such employee received wages or equivalent income for at least
45 seven hundred fifty hours during any twenty-four month period when the
46 taxpayer was located at the incubator facility. Such expenditures shall
47 include payments made to such employee after the taxpayer has relocated
48 from the incubator facility for qualified expenditures if such payments
49 are made to reimburse an employee for expenditures paid by the employee
50 during such two preceding years. The credit provided under this para-
51 graph shall be allowed in any taxable year that the taxpayer qualifies
52 as an eligible taxpayer.
53 (E) For purposes of this subdivision the term "academic year" shall
54 mean the annual period of sessions of a post-secondary college or
55 university.
S. 8578 451
1 (F) For the purposes of this subdivision the term "academic incubator
2 facility" shall mean a facility providing low-cost space, technical
3 assistance, support services and educational opportunities, including
4 but not limited to central services provided by the manager of the
5 facility to the tenants of the facility, to an entity located in city.
6 Such entity's primary activity must be in biotechnologies, and such
7 entity must be in the formative stage of development. The academic incu-
8 bator facility and the entity must act in partnership with an accredited
9 post-secondary college or university located in city. An academic incu-
10 bator facility's mission shall be to promote job creation, entrepreneur-
11 ship, technology transfer, and provide support services to incubator
12 tenants, including, but not limited to, business planning, management
13 assistance, financial-packaging, linkages to financing services, and
14 coordinating with other sources of assistance.
15 (6) An eligible taxpayer may claim credits under this subdivision for
16 three consecutive years. In no case shall the credit allowed by this
17 subdivision to a taxpayer exceed two hundred fifty thousand dollars per
18 calendar year for eligible expenditures made during such calendar year.
19 (7) The credit allowed under this subdivision for any taxable year
20 shall not reduce the tax due for such year to less than the amount
21 computed in subdivision (a) of this section. Provided, however, if the
22 amount of credit allowed under this subdivision for any taxable year
23 reduces the tax to such amount, any amount of credit not deductible in
24 such taxable year shall be treated as an overpayment of tax to be cred-
25 ited or refunded in accordance with the provisions of section 11-526 of
26 this chapter; provided, however, that notwithstanding the provisions of
27 section 11-528 of this chapter, no interest shall be paid thereon.
28 (8) The credit allowed under this subdivision shall only be allowed
29 for taxable years beginning on or after January first, two thousand ten
30 and before January first, two thousand nineteen.
31 (b)(1) The percentage of the credit allowed to a taxpayer under this
32 subdivision in any calendar year shall be:
33 (A) If the average number of individuals employed full time by a
34 taxpayer in the city during the calendar year that ends with or within
35 the taxable year which the credit is claimed is at least one hundred
36 five percent of the taxpayer's base year employment, one hundred
37 percent, except that in no case shall the credit allowed under this
38 clause exceed two hundred fifty thousand dollars per calendar year.
39 Provided, however, the increase in base year employment shall not apply
40 to a taxpayer allowed a credit under this subdivision that was (I)
41 located outside of the city, (II) not doing business, or (III) did not
42 have any employees, in the year preceding the first year that the credit
43 is claimed. Any such taxpayer shall be eligible for one hundred percent
44 of the credit for the first calendar year that ends with or within the
45 taxable year for which the credit is claimed, provided that such taxpay-
46 er locates in the city, begins doing business in the city or hires
47 employees in the city during such calendar year and is otherwise eligi-
48 ble for the credit pursuant to the provisions of this subdivision.
49 (B) If the average number of individuals employed full time by a
50 taxpayer in the city during the calendar year that ends with or within
51 the taxable year for which the credit is claimed is less than one
52 hundred five percent of the taxpayer's base year employment, fifty
53 percent, except that in no case shall the credit allowed under this
54 clause exceed one hundred twenty five thousand dollars per calendar
55 year. In the case of an entity located in city receiving space and busi-
56 ness support services by an academic incubator facility, if the average
S. 8578 452
1 number of individuals employed full time by such entity in the city
2 during the calendar year in which the credit allowed under this subdivi-
3 sion is claimed is less than one hundred five percent of the taxpayer's
4 base year employment, the credit shall be zero.
5 (2) For the purposes of this subdivision, "base year employment" means
6 the average number of individuals employed full-time by the taxpayer in
7 the city in the year preceding the first calendar year that ends with or
8 within the taxable year for which the credit is claimed.
9 (3) For the purposes of this subdivision, average number of individ-
10 uals employed full-time shall be computed by adding the number of such
11 individuals employed by the taxpayer at the end of each quarter during
12 each calendar year or other applicable period and dividing the sum so
13 obtained by the number of such quarters occurring within such calendar
14 year or other applicable period.
15 (4) Notwithstanding anything contained in this section to the contra-
16 ry, the credit provided by this subdivision shall be allowed against the
17 taxes authorized by this chapter for the taxable year after reduction by
18 all other credits permitted by this chapter.
19 (p) Beer production credit. (1) A taxpayer subject to tax under this
20 chapter, that is registered as a distributor under article eighteen of
21 the tax law, and that produces sixty million or fewer gallons of beer in
22 this state in the taxable year, shall be allowed a credit against the
23 tax imposed by this chapter in the amount specified in paragraph two of
24 this subdivision. Provided, however, that no credit shall be allowed for
25 any beer produced in excess of fifteen million five hundred thousand
26 gallons in the taxable year. Notwithstanding anything in this title to
27 the contrary, if a partnership is allowed a credit under this subdivi-
28 sion, a taxpayer that is a partner in such partnership shall not be
29 allowed a credit under this subdivision for any taxable year that
30 includes the last day of the taxable year for which the partnership is
31 allowed such credit.
32 (2) The amount of the credit per taxpayer per taxable year for each
33 gallon of beer produced in the city on or after January first, two thou-
34 sand seventeen shall be determined as follows:
35 (i) for the first five hundred thousand gallons of beer produced in
36 the city in the taxable year, the credit shall equal twelve cents per
37 gallon; and
38 (ii) for each gallon of beer produced in the city in the taxable year
39 in excess of five hundred thousand gallons, the credit shall equal three
40 and eighty-six one hundredths cents per gallon. The credit allowed under
41 this subdivision for any taxable year shall be treated as an overpayment
42 of tax to be credited or refunded in accordance with the provisions of
43 section 11-526 of this chapter; provided, however, that notwithstanding
44 the provisions of section 11-528 of this chapter, no interest shall be
45 paid thereon.
46 (q) Credit for the provision of child care. In addition to any other
47 credit allowed under this section, a taxpayer whose application for a
48 credit authorized by section 11-144 of this title has been approved by
49 the department of finance shall be allowed a credit against the tax
50 imposed by this chapter. The amount of the credit shall be determined as
51 provided in such section. To the extent the amount of the credit allowed
52 by this subdivision exceeds the amount of tax due pursuant to this chap-
53 ter, as calculated without such credit, such excess amount shall be
54 treated as an overpayment of tax to be credited or refunded in accord-
55 ance with the provisions of section 11-526 of this chapter, provided,
S. 8578 453
1 however, that notwithstanding the requirements of section 11-528 of this
2 chapter to the contrary, no interest shall be paid thereon.
3 § 11-504 Taxable years to which tax applies; tax for taxable years
4 beginning prior to and ending after January first, nineteen hundred
5 sixty-six. (a) General. The tax imposed by section 11-503 of this
6 chapter, with any modification permitted by subdivision (b) of this
7 section, is imposed for each taxable year beginning with taxable years
8 ending on or after January first, nineteen hundred sixty-six.
9 (b) Alternate methods for determining tax for taxable years ending on
10 or after January first, nineteen hundred sixty-six. (1) The tax for any
11 taxable year ending on or after January first, nineteen hundred sixty-
12 six and before December thirty-first, nineteen hundred sixty-six, shall
13 be an amount equal to the tax which would have been imposed had section
14 11-503 of this chapter been in effect for the entire taxable year,
15 multiplied by the number of months, or major portions thereof, in such
16 taxable year which occur after December thirty-first, nineteen hundred
17 sixty-five and divided by the number of months, or major portions there-
18 of, in such taxable year.
19 (2) In lieu of the method of computation of tax prescribed in para-
20 graph one of this subdivision, if the taxpayer maintained adequate
21 records for the portion of any taxable year ending on or after January
22 first, nineteen hundred sixty-six, and before December thirty-first,
23 nineteen hundred sixty-six, which falls within the calendar year nine-
24 teen hundred sixty-six, the tax for such taxable year at the election of
25 the taxpayer may be computed on the basis of the unincorporated business
26 taxable income which the taxpayer would have reported had he or she
27 filed a federal income tax return for a taxable year beginning January
28 first, nineteen hundred sixty-six and ending with the close of such
29 taxable year ending before December thirty-first, nineteen hundred
30 sixty-six. Such taxable year beginning January first, nineteen hundred
31 sixty-six and ending before December thirty-first, nineteen hundred
32 sixty-six shall be deemed, unless clearly indicated otherwise, to be the
33 taxable year of the taxpayer. For purposes of this paragraph, the unin-
34 corporated business exemptions allowable under section 11-510 of this
35 chapter, the credit allowable under subdivision (b) of section 11-503 of
36 this chapter and any net operating loss deduction as modified pursuant
37 to subdivision (b) of section 11-507 of this chapter shall each be
38 reduced by the same part of such exemptions, credit, or net operating
39 loss deduction, as the case may be, as the number of months, or major
40 portions thereof, in the taxable year occurring before January first,
41 nineteen hundred sixty-six is of the number of months, or major portions
42 thereof, in such taxable year. Except as provided in paragraph two, the
43 tax for such period ending before December thirty-first, nineteen
44 hundred sixty-six, shall be computed in accordance with the other
45 provisions of this chapter.
46 § 11-505 Unincorporated business taxable income. The unincorporated
47 business taxable income of an unincorporated business shall be the
48 excess of its unincorporated business entire net income allocated to the
49 city, less the amount of:
50 (1) Its deductions under section 11-509 of this chapter not subject to
51 allocation; and
52 (2) Its unincorporated business exemptions under section 11-510 of
53 this chapter.
54 § 11-506 Unincorporated business gross income. (a) (1) General.
55 Unincorporated business gross income of an unincorporated business means
56 the sum of the items of income and gain of the business, of whatever
S. 8578 454
1 kind and in whatever form paid, includible in gross income for the taxa-
2 ble year for federal income tax purposes, including income and gain from
3 any property employed in the business, or from liquidation of the busi-
4 ness, or from collection of installment obligations of the business, or
5 from the sale or other disposition by an unincorporated entity of an
6 interest in another unincorporated entity if and to the extent such
7 income or gain is attributable to a trade, business, profession or occu-
8 pation carried on in whole or in part in the city by such other unincor-
9 porated entity, with the modifications specified in this section.
10 (2) The character of a partner's distributive share of gross income,
11 gains, losses and deductions of an unincorporated entity shall be deter-
12 mined as if such gross income, gains, losses and deductions were real-
13 ized directly by such partner regardless of how the interest in the
14 unincorporated entity was acquired and regardless of whether the
15 distributive share is proportionate to the partner's capital interest in
16 the unincorporated entity, provided, however, this paragraph shall not
17 apply to payments to a partner treated as occurring between the unincor-
18 porated entity and one who is not a partner under section seven hundred
19 seven of the internal revenue code, and provided, further, this para-
20 graph shall not affect the determination of whether gross income, gains,
21 losses or deductions of an unincorporated entity are subject to the tax
22 imposed by this chapter as realized from an unincorporated business.
23 (b) Modifications increasing federal gross income. There shall be
24 added to federal gross income of the business the following items
25 attributable to the business:
26 (1) Interest income on obligations of any state other than this state,
27 or of a political subdivision of any such other state unless created by
28 compact or agreement to which this state is a party.
29 (2) Interest or dividend income on obligations or securities of any
30 authority, commission, or instrumentality of the United States, which
31 the laws of the United States exempt from federal income tax but not
32 from state or local income taxes.
33 (3) In the case of a taxpayer who has exercised the election permitted
34 by subdivision (b) of section 11-509 of this chapter, if the property to
35 which such election relates was sold or otherwise disposed of during the
36 taxable year, the amount required by such subdivision to be added to
37 federal gross income.
38 (4) The entire amount allowable as an exclusion or deduction for stock
39 transfer taxes imposed by article twelve of the tax law in determining
40 federal gross income but only to the extent that such taxes are incurred
41 and paid in market making transactions.
42 (5) The amount allowed as an exclusion or deduction for sales and use
43 taxes imposed by section eleven hundred seven of the tax law in deter-
44 mining federal gross income but only such portion of such exclusion or
45 deduction which is not in excess of the amount of the credit allowed
46 pursuant to subdivision (d) of section 11-503 of this chapter.
47 (6) The amount allowed as an exclusion or deduction as rent in deter-
48 mining federal gross income but only such portion of such exclusion or
49 deduction which is not in excess of the amount of the credit allowed
50 pursuant to subdivision (e) of section 11-503 of this chapter.
51 (7) The amount allowed as an exclusion or deduction in determining
52 federal gross income but only such portion of such exclusion or
53 deduction which is not in excess of the amount of the credit allowed
54 pursuant to subdivision (f) of section 11-503 of this chapter.
55 (8) For taxable years beginning after December thirty-first, nineteen
56 hundred eighty-one, except with respect to property which is a qualified
S. 8578 455
1 mass commuting vehicle described in subparagraph (D) of paragraph eight
2 of subsection (f) of section one hundred sixty-eight of the internal
3 revenue code, relating to qualified mass commuting vehicles, any amount
4 which would properly be includible for federal income tax purposes had
5 the taxpayer not made the election permitted pursuant to such paragraph
6 eight as it was in effect for agreements entered into prior to January
7 first, nineteen hundred eighty-four.
8 (9) Upon the disposition of property to which subdivision (o) of
9 section 11-507 of this chapter applies, the amount, if any, by which the
10 aggregate of the amounts described in such subdivision fifteen attribut-
11 able to such property exceeds the aggregate of the amounts described in
12 subdivision (n) of section 11-507 of this chapter attributable to such
13 property.
14 (10) The amount allowed as an exclusion or deduction for sales and use
15 taxes imposed by section eleven hundred seven of the tax law in deter-
16 mining federal gross income, but only such portion of such exclusion or
17 deduction which is not in excess of the amount of the credit allowed
18 pursuant to subdivision (g) of section 11-503 of this chapter.
19 (12) The amount allowed as an exclusion or deduction for sales and use
20 taxes imposed by section eleven hundred seven of the tax law, or for any
21 interest imposed in connection therewith, in determining federal gross
22 income, but only such portion of such exclusion or deduction which is
23 not in excess of the amount of the credit allowed pursuant to subdivi-
24 sion (k) of section 11-503 of this chapter.
25 (13) Notwithstanding any other provision of this chapter to the
26 contrary, the amount allowed as an exclusion or deduction in determining
27 federal gross income of any loss, including but not limited to, losses
28 from notional principal contracts, losses, other than as a dealer, from
29 the holding, sale, disposition, assumption, offset or termination of a
30 position in, property, as defined in paragraph one of subdivision (c) of
31 section 11-502 of this chapter, or other substantially similar losses
32 from ordinary and routine trading or investment activity to the extent
33 determined by the commissioner of finance, realized in connection with
34 activities described in paragraph two of subdivision (c) of section
35 11-502 of this chapter if, and to the extent that, such activities are
36 not deemed an unincorporated business carried on by the taxpayer pursu-
37 ant to the provisions of subdivision (c) of section 11-502 of this chap-
38 ter.
39 (14) Notwithstanding any other provision of this chapter to the
40 contrary, in the case of a taxpayer that is an unincorporated entity
41 described in subparagraph (B) of paragraph four of subdivision (c) of
42 section 11-502 of this chapter, the amount allowed as an exclusion or
43 deduction in determining federal gross income of any loss realized from
44 the sale or other disposition of an interest in another unincorporated
45 entity if, and to the extent that, such loss is attributable to activ-
46 ities of such other unincorporated entity not deemed an unincorporated
47 business carried on by the taxpayer pursuant to the provisions of subdi-
48 vision (c) of section 11-502 of this chapter.
49 (15) Notwithstanding any other provision of this chapter to the
50 contrary, the amount allowed as an exclusion or deduction in determining
51 federal gross income of any loss realized from the holding, leasing or
52 managing of real property if, and to the extent that, such holding,
53 leasing or managing of real property is not deemed an unincorporated
54 business carried on by the taxpayer pursuant to the provisions of subdi-
55 vision (d) of section 11-502 of this chapter.
S. 8578 456
1 (16) Notwithstanding any other provision of this chapter to the
2 contrary, the amount allowed as an exclusion or deduction in determining
3 federal gross income of any loss realized from the provision by an
4 owner, lessee or fiduciary holding, leasing or managing real property of
5 the service of parking, garaging or storing of motor vehicles on a
6 monthly or longer term basis to tenants at such real property if, and to
7 the extent that, the provision of such services to such tenants is not
8 deemed an unincorporated business carried on by the taxpayer pursuant to
9 the provisions of subdivision (d) of section 11-502 of this chapter.
10 (17) For taxable years beginning in two thousand nineteen and two
11 thousand twenty, the amount of the increase in the federal interest
12 deduction allowed pursuant to section 163(j)(10) of the internal revenue
13 code.
14 (18) Notwithstanding any other provision of this chapter to the
15 contrary, for taxable years beginning before January first, two thousand
16 twenty-one, the amount of increase in the federal deduction allowed
17 pursuant to any amendment to section 461(l) of the internal revenue code
18 made after March first, two thousand twenty.
19 (c) Modifications reducing federal gross income. There shall be
20 subtracted from federal gross income of the business the following items
21 attributable to the business:
22 (1) Interest income on obligations of the United States and its
23 possessions to the extent includible in gross income for federal income
24 tax purposes;
25 (2) Interest or dividend income on obligations or securities of any
26 authority, commission or instrumentality of the United States to the
27 extent includible in gross income for federal income tax purposes but
28 exempt from state or local income taxes under the laws of the United
29 States;
30 (3) Interest or dividend income on obligations or securities to the
31 extent exempt from income tax under the laws of the city or this state
32 authorizing the issuance of such obligations or securities but includi-
33 ble in gross income for federal income tax purposes;
34 (3-a) Fifty percent of dividends to the extent includible in gross
35 income for federal income tax purposes and not subtracted under para-
36 graph two or three of this subdivision, provided, however, that there
37 shall be no subtraction pursuant to this paragraph for any portion of a
38 dividend from stock with respect to which a dividend deduction would be
39 disallowed by subsection (c) of section two hundred forty-six of the
40 internal revenue code if the unincorporated business were a corporation;
41 (4) The amount of any refund or credit for overpayment of income taxes
42 imposed by the city, this state or any other taxing jurisdiction, or the
43 tax imposed by article thirteen-A of the tax law, to the extent properly
44 included in gross income for federal tax purposes;
45 (5) With respect to gain derived from the sale or other disposition of
46 any property acquired prior to January first, nineteen hundred sixty-
47 six, except property described in subsections one and four of section
48 twelve hundred twenty-one of the internal revenue code, the difference
49 between:
50 (a) the amount of gain included in federal gross income with respect
51 to each such property, and
52 (b) the amount of gain, if smaller than the amount described in
53 subparagraph (a) of this paragraph, that would be included in federal
54 gross income with respect to each such property if the federal adjusted
55 basis of such property on the date of the sale or other disposition had
56 been equal to its fair market value on January first, nineteen hundred
S. 8578 457
1 sixty-six, or the date of its sale or other disposition prior to January
2 first, nineteen hundred sixty-six, plus or minus all adjustments to
3 basis made with respect to such property for federal income tax purposes
4 for periods on and after January first, nineteen hundred sixty-six;
5 provided, however, that the total modification provided by this subpara-
6 graph shall not exceed the taxpayer's net gain from the sale or other
7 disposition of all such property.
8 (6) For taxable years beginning after December thirty-first, nineteen
9 hundred eighty-one, except with respect to property which is a qualified
10 mass commuting vehicle described in subparagraph (D) of paragraph eight
11 of subsection (f) of section one hundred sixty-eight of the internal
12 revenue code, relating to qualified mass commuting vehicles, any amount
13 properly includible in federal gross income solely as a result of an
14 election made pursuant to the provisions of such paragraph eight as it
15 was in effect for agreements entered into prior to January first, nine-
16 teen hundred eighty-four.
17 (7) Upon the disposition of property to which subdivision (o) of
18 section 11-507 of this chapter applies, the amount, if any, by which the
19 aggregate of the amounts described in subdivision (n) of section 11-507
20 of this chapter attributable to such property exceeds the aggregate of
21 the amounts described in subdivision (o) of section 11-507 of this chap-
22 ter attributable to such property.
23 (8) Notwithstanding any other provision of this chapter to the contra-
24 ry, the amount of any income or gain, to the extent includible in gross
25 income for federal income tax purposes, realized from the holding, leas-
26 ing or managing of real property if, and to the extent that, such hold-
27 ing, leasing or managing of real property is not deemed an unincorporat-
28 ed business carried on by the taxpayer pursuant to the provisions of
29 subdivision (d) of section 11-502 of this chapter.
30 (9) Notwithstanding any other provision of this chapter to the contra-
31 ry, the amount of any income or gain, to the extent includible in gross
32 income for federal income tax purposes, including but not limited to,
33 dividends, interest, payments with respect to securities loans, income
34 from notional principal contracts, or income and gains, other than as a
35 dealer, from the holding, sale, disposition, assumption, offset or
36 termination of a position in, property, as defined in paragraph one of
37 subdivision (c) of section 11-502 of this chapter, or other substantial-
38 ly similar income from ordinary and routine trading or investment activ-
39 ity to the extent determined by the commissioner of finance, realized in
40 connection with activities described in paragraph two of subdivision (c)
41 of section 11-502 of this chapter if, and to the extent that, such
42 activities are not deemed an unincorporated business carried on by the
43 taxpayer pursuant to the provisions of subdivision (c) of section 11-502
44 of this chapter.
45 (10) Notwithstanding any other provision of this chapter to the
46 contrary, in the case of a taxpayer that is an unincorporated entity
47 described in subparagraph (B) of paragraph four of subdivision (c) of
48 section 11-502 of this chapter, the amount of any income or gain, to the
49 extent includible in gross income for federal income tax purposes, real-
50 ized from the sale or other disposition of an interest in another unin-
51 corporated entity if, and to the extent that, such income or gain is
52 attributable to activities of such other unincorporated entity not
53 deemed an unincorporated business carried on by the taxpayer pursuant to
54 the provisions of subdivision (c) of section 11-502 of this chapter.
55 (11) Notwithstanding any other provision of this chapter to the
56 contrary, the amount of any income or gain, to the extent includible in
S. 8578 458
1 gross income for federal income tax purposes, realized from the
2 provision by an owner, lessee or fiduciary holding, leasing or managing
3 real property of the service of parking, garaging or storing of motor
4 vehicles on a monthly or longer term basis to tenants at such real prop-
5 erty if, and to the extent that, the provision of such services to such
6 tenants is not deemed an unincorporated business pursuant to the
7 provisions of subdivision (d) of section 11-502 of this chapter.
8 (12) The amount of any grant received through either the COVID-19
9 pandemic small business recovery grant program, pursuant to section
10 sixteen-ff of the New York state urban development corporation act, or
11 the small business resilience grant program administered by the depart-
12 ment of small business services, to the extent the amount of either such
13 grant is included in federal taxable income.
14 (d) Upon the disposition of property to which subdivisions (t) and (u)
15 of section 11-507 of this chapter apply, the amount of any gain or loss
16 includible in entire net income shall be adjusted to reflect the modifi-
17 cations provided in such subdivisions attributable to such property.
18 (e) Related members expense add back. (1) Definitions. (A) Related
19 member. "Related member" means a related person as defined in subpara-
20 graph (c) of paragraph three of subsection (b) of section four hundred
21 sixty-five of the internal revenue code, except that "fifty percent"
22 shall be substituted for "ten percent".
23 (B) Effective rate of tax. "Effective rate of tax" means, as to any
24 city, the maximum statutory rate of tax imposed by the city on or meas-
25 ured by a related member's net income multiplied by the apportionment
26 percentage, if any, applicable to the related member under the laws of
27 said jurisdiction. For purposes of this definition, the effective rate
28 of tax as to any city is zero where the related member's net income tax
29 liability in said city is reported on a combined or consolidated return
30 including both the taxpayer and the related member where the reported
31 transactions between the taxpayer and the related member are eliminated
32 or offset. Also, for purposes of this definition, when computing the
33 effective rate of tax for a city in which a related member's net income
34 is eliminated or offset by a credit or similar adjustment that is
35 dependent upon the related member either maintaining or managing intan-
36 gible property or collecting interest income in such city, the maximum
37 statutory rate of tax imposed by such city shall be decreased to reflect
38 the statutory rate of tax that applies to the related member as effec-
39 tively reduced by such credit or similar adjustment.
40 (C) Royalty payments. Royalty payments are payments directly connected
41 to the acquisition, use, maintenance or management, ownership, sale,
42 exchange, or any other disposition of licenses, trademarks, copyrights,
43 trade names, trade dress, service marks, mask works, trade secrets,
44 patents and any other similar types of intangible assets as determined
45 by the commissioner of finance, and include amounts allowable as inter-
46 est deductions under section one hundred sixty-three of the internal
47 revenue code to the extent such amounts are directly or indirectly for,
48 related to or in connection with the acquisition, use, maintenance or
49 management, ownership, sale, exchange or disposition of such intangible
50 assets.
51 (D) Valid business purpose. A valid business purpose is one or more
52 business purposes, other than the avoidance or reduction of taxation,
53 which alone or in combination constitute the primary motivation for some
54 business activity or transaction, which activity or transaction changes
55 in a meaningful way, apart from tax effects, the economic position of
56 the taxpayer. The economic position of the taxpayer includes an increase
S. 8578 459
1 in the market share of the taxpayer, or the entry by the taxpayer into
2 new business markets.
3 (2) Royalty expense add backs. (A) For the purpose of computing unin-
4 corporated business entire net income, a taxpayer must add back royalty
5 payments directly or indirectly paid, accrued, or incurred in connection
6 with one or more direct or indirect transactions with one or more
7 related members during the taxable year to the extent deductible in
8 calculating federal taxable income.
9 (B) Exceptions. (i) The adjustment required in this subdivision shall
10 not apply to the portion of the royalty payment that the taxpayer estab-
11 lishes, by clear and convincing evidence of the type and in the form
12 specified by the commissioner of finance, meets all of the following
13 requirements: (I) the related member was subject to tax in this city or
14 another city within the United States or a foreign nation or some combi-
15 nation thereof on a tax base that included the royalty payment paid,
16 accrued or incurred by the taxpayer; (II) the related member during the
17 same taxable year directly or indirectly paid, accrued or incurred such
18 portion to a person that is not a related member; and (III) the trans-
19 action giving rise to the royalty payment between the taxpayer and the
20 related member was undertaken for a valid business purpose.
21 (ii) The adjustment required in this subdivision shall not apply if
22 the taxpayer establishes, by clear and convincing evidence of the type
23 and in the form specified by the commissioner of finance, that: (I) the
24 related member was subject to tax on or measured by its net income in
25 this city or another city within the United States, or some combination
26 thereof; (II) the tax base for said tax included the royalty payment
27 paid, accrued or incurred by the taxpayer; and (III) the aggregate
28 effective rate of tax applied to the related member in those jurisdic-
29 tions is no less than eighty percent of the statutory rate of tax that
30 applied to the taxpayer under section 11-503 of this chapter for the
31 taxable year.
32 (iii) The adjustment required in this subdivision shall not apply if
33 the taxpayer establishes, by clear and convincing evidence of the type
34 and in the form specified by the commissioner of finance, that: (I) the
35 royalty payment was paid, accrued or incurred to a related member organ-
36 ized under the laws of a country other than the United States; (II) the
37 related member's income from the transaction was subject to a comprehen-
38 sive income tax treaty between such country and the United States; (III)
39 the related member was subject to tax in a foreign nation on a tax base
40 that included the royalty payment paid, accrued or incurred by the
41 taxpayer; (IV) the related member's income from the transaction was
42 taxed in such country at an effective rate of tax at least equal to that
43 imposed by this city; and (V) the royalty payment was paid, accrued or
44 incurred pursuant to a transaction that was undertaken for a valid busi-
45 ness purpose and using terms that reflect an arm's length relationship.
46 (iv) The adjustment required in this subdivision shall not apply if
47 the taxpayer and the commissioner of finance agree in writing to the
48 application or use of alternative adjustments or computations. The
49 commissioner of finance may, in his or her discretion, agree to the
50 application or use of alternative adjustments or computations when he or
51 she concludes that in the absence of such agreement the income of the
52 taxpayer would not be properly reflected.
53 (f) Upon the disposition of property to which subdivisions (w) and (x)
54 of section 11-507 of this chapter apply, the amount of any gain or loss
55 includible in unincorporated business gross income shall be adjusted to
S. 8578 460
1 reflect the modifications provided in such subdivisions attributable to
2 such property.
3 § 11-507 Unincorporated business deductions. The unincorporated busi-
4 ness deductions of an unincorporated business means the items of loss
5 and deduction directly connected with or incurred in the conduct of the
6 business, which are allowable for federal income tax purposes for the
7 taxable year, including losses and deductions connected with any proper-
8 ty employed in the business, with the following modifications:
9 (a) A deduction shall be allowed for charitable contributions of the
10 unincorporated business, to the extent that such contributions would be
11 deductible for federal income tax purposes if made by a corporation, but
12 not in excess of five per centum of the amount by which the unincorpo-
13 rated business gross income exceeds the sum of (A) the unincorporated
14 business deductions computed without the benefit of any deduction for
15 charitable contributions and (B) the deduction allowed under subdivision
16 (b) of section 11-509 of this chapter, where the election permitted by
17 such subdivision has been exercised.
18 (b) (1) A deduction shall be allowed for net operating losses incurred
19 by the unincorporated business, except as otherwise provided by para-
20 graph two of this subdivision, in an amount computed in the same manner
21 as the net operating loss deduction which would be allowed for the taxa-
22 ble year for federal income tax purposes if the unincorporated business
23 were an individual taxpayer, but determined solely by reference to the
24 unincorporated business gross income and unincorporated business
25 deductions, allocated to the city, of the unincorporated business;
26 provided, however, that such net operating loss deduction which would be
27 allowed for the taxable year for federal income tax purposes shall for
28 purposes of this paragraph be determined as if the unincorporated busi-
29 ness had elected under section one hundred seventy-two of the internal
30 revenue code to relinquish the entire carryback period with respect to
31 net operating losses, except with respect to the first ten thousand
32 dollars of each of such losses, sustained during taxable years ending
33 after June thirtieth, nineteen hundred eighty-nine. Such deduction shall
34 not include any net operating loss sustained during any taxable year
35 beginning prior to January first, nineteen hundred sixty-six and for the
36 purposes of this paragraph a net operating loss shall be determined
37 without regard to any deductions allowed pursuant to subdivision (b) of
38 section 11-509 of this chapter and any net operating loss for a taxable
39 year beginning in nineteen hundred eighty-one shall be computed without
40 regard to the deduction allowed with respect to recovery property under
41 section one hundred sixty-eight of the internal revenue code; in lieu of
42 such deduction, a taxpayer shall be allowed for such taxable year with
43 respect to such property the depreciation deduction allowable under
44 section one hundred sixty-seven of such internal revenue code as such
45 section was in full force and effect on December thirty-first, nineteen
46 hundred eighty.
47 (2) In the case of a partnership, no net operating loss carryback or
48 carryover to any taxable year shall be allowed unless one or more of the
49 partners during such taxable year were persons having a proportionate
50 interest or interests, amounting to at least eighty percent of all such
51 interests, in the unincorporated business gross income and unincorporat-
52 ed business deductions of the partnership which sustained the loss for
53 which a carryback or carryover is claimed. In such event, the carryback
54 or carryover allowable on account of such loss shall not exceed the
55 percentage of the amount otherwise allowable, determined by dividing (A)
56 the sum of the proportionate interests in the unincorporated business
S. 8578 461
1 gross income and unincorporated business deductions of the partnership,
2 for the year to which the loss is carried back or carried over, attrib-
3 utable to such partners, by (B) the sum of such proportionate interests
4 owned by all partners for such taxable year. The amount by which the
5 carryback or carryover otherwise allowable exceeds the amount allowable
6 pursuant to the preceding sentence shall not be a carryback or carryover
7 to any other taxable year.
8 (3) Notwithstanding any other provision of this chapter to the contra-
9 ry, for taxable years beginning before January first, two thousand twen-
10 ty-one, any amendment to section one hundred seventy-two of the internal
11 revenue code made after March first, two thousand twenty shall not apply
12 to this chapter.
13 (c) No deduction shall be allowed, except as provided in section
14 11-509 of this chapter for amounts paid or incurred to a proprietor or
15 partner for services or for use of capital.
16 (d) No deduction shall be allowed for income taxes imposed by the
17 city, this state or any other taxing jurisdiction, or the tax imposed by
18 article thirteen-A of the tax law.
19 (e) No deduction shall be allowed for (A) interest on indebtedness
20 incurred or continued to purchase or carry obligations or securities the
21 interest on which is exempt from tax under this chapter; (B) expenses
22 paid or incurred for the production or collection of such income or the
23 management, conservation or maintenance of property held for the
24 production of such income; or (C) the amortizable bond premium on any
25 bond the interest income from which is so exempt.
26 (f) No deduction shall be allowed in respect of the excess of net
27 long-term capital gain over net short-term capital loss, but capital
28 losses incurred in the unincorporated business shall be treated as ordi-
29 nary losses and shall be allowed in full.
30 (g) In the case of a taxpayer who has exercised the election permitted
31 by subdivision (b) of section 11-509 of this chapter, no deduction shall
32 be allowed for expenditures with reference to the property to which such
33 election relates, or for depreciation of such property, except as
34 permitted by said subdivision.
35 (h) A deduction shall be allowed, to the extent not allowable for
36 federal income tax purposes, for (A) interest on indebtedness incurred
37 or continued to purchase or carry obligations or securities the interest
38 on which is subject to tax under this chapter but exempt from federal
39 income tax; (B) ordinary and necessary expenses paid or incurred during
40 the taxable year for the production or collection of such income or the
41 management, conservation or maintenance of property held for the
42 production of such income; and (C) the amortizable bond premium for the
43 taxable year on any bond the interest on which is subject to tax under
44 this chapter but exempt from federal income tax.
45 (i) At the election of the taxpayer, a deduction shall be allowed for
46 expenditures paid or incurred during the taxable year for the
47 construction, reconstruction, erection or improvement of industrial
48 waste treatment facilities and air pollution control facilities.
49 (1) (A) The term "industrial waste treatment facilities" shall mean
50 facilities for the treatment, neutralization or stabilization of indus-
51 trial waste, as the term "industrial waste" is defined in section
52 17-0105 of the environmental conservation law, from a point immediately
53 preceding the point of such treatment, neutralization or stabilization
54 to the point of disposal, including the necessary pumping and transmit-
55 ting facilities, but excluding such facilities installed for the primary
S. 8578 462
1 purpose of salvaging materials which are usable in the manufacturing
2 process or are marketable.
3 (B) The term "air pollution control facilities" shall mean facilities
4 which remove, reduce, or render less noxious air contaminants emitted
5 from an air contamination source, as the terms "air contaminant" and
6 "air contamination source" are defined in section 19-0107 of the envi-
7 ronmental conservation law, from a point immediately preceding the point
8 of such removal, reduction or rendering to the point of discharge of
9 air, meeting emission standards as established by the air pollution
10 control board, but excluding such facilities installed for the primary
11 purpose of salvaging materials which are usable in the manufacturing
12 process or are marketable and excluding those facilities which rely for
13 their efficacy on dilution, dispersion or assimilation of air contam-
14 inants in the ambient air after emission.
15 (2) However, such deduction shall be allowed only (A) with respect to
16 tangible property which is depreciable, pursuant to section one hundred
17 sixty-seven of the internal revenue code, having a situs in the city and
18 used in the taxpayer's trade or business, the construction, recon-
19 struction, erection or improvement of which, in the case of industrial
20 waste treatment facilities, is initiated on or after January first,
21 nineteen hundred sixty-six, and only for expenditures paid or incurred
22 prior to January first, nineteen hundred seventy-two, or which, in the
23 case of air pollution control facilities, is initiated on or after Janu-
24 ary first, nineteen hundred sixty-six, and
25 (B) on condition that such facilities have been certified by the state
26 commissioner of environmental conservation or his or her designated
27 representative, in the same manner as provided in either section 17-0707
28 or 19-0309 of the environmental conservation law, as applicable, as
29 complying with the provision of the environmental conservation law, the
30 sanitary code and regulations, permits or orders promulgated pursuant
31 thereto, and
32 (C) on condition that for the taxable year and all succeeding taxable
33 years, no deduction for such expenditures or for depreciation of the
34 same property allowed for federal income tax purposes shall be allowed
35 under this chapter, except to the extent that the basis of the property
36 may be attributable to factors other than such expenditures, or in case
37 a deduction is allowable pursuant to this subdivision, for only a part
38 of such expenditures, on condition that any deduction allowed for feder-
39 al income tax purposes for such expenditures or for depreciation of the
40 same property be proportionately reduced in computing unincorporated
41 business deductions for the taxable year and all succeeding taxable
42 years, and
43 (D) where the election provided for in subdivision (b) of section
44 11-509 of this chapter has not been exercised in respect to the same
45 property.
46 (3) (A) If expenditures in respect to an industrial waste treatment
47 facility or an air pollution control facility have been deducted as
48 provided herein and if within ten years from the end of the taxable year
49 in which such deduction was allowed such property or any part thereof is
50 used for the primary purpose of salvaging materials which are usable in
51 the manufacturing process or are marketable, the taxpayer shall report
52 such change of use in its return for the first taxable year during which
53 it occurs, and the commissioner of finance may recompute the tax for the
54 year or years for which such deduction was allowed and any carryback or
55 carryover year, and may assess any additional tax resulting from such
S. 8578 463
1 recomputation within the time fixed by paragraph eight of subdivision
2 (c) of section 11-523 of this chapter.
3 (B) If a deduction is allowed as herein provided for expenditures paid
4 or incurred during any taxable year on the basis of a temporary certif-
5 icate of compliance issued pursuant to the public health law, and if the
6 taxpayer fails to obtain a permanent certificate of compliance upon
7 completion of the facilities with respect to which such temporary
8 certificate was issued, the taxpayer shall report such failure in its
9 report for the taxable year during which such facilities are completed,
10 and the commissioner of finance may recompute the tax for the year or
11 years for which such deduction was allowed and any carryback or carry-
12 over year, and may assess any additional tax resulting from such recom-
13 putation within the time fixed by paragraph eight of subdivision (c) of
14 section 11-523 of this chapter.
15 (4) In any taxable year when property is sold or otherwise disposed
16 of, with respect to which a deduction has been allowed pursuant to this
17 subdivision, such deduction shall be disregarded in computing gain or
18 loss, and the gain or loss on the sale or other disposition of such
19 property shall be the gain or loss allowable for federal income tax
20 purposes for such taxable year.
21 (j) In the case of mines, oil and gas wells and other natural depos-
22 its, no deduction of any allowance for percentage depletion pursuant to
23 section six hundred thirteen or section six hundred thirteen A of the
24 internal revenue code of nineteen hundred fifty-four, as amended, shall
25 be allowed. However, an allowance for depletion with respect to such
26 property shall be deductible in the amount which would be allowable
27 under section six hundred eleven of such internal revenue code if such
28 deduction were computed without reference to such section six hundred
29 thirteen or section six hundred thirteen A of such code. With respect to
30 the computation of depletion pursuant to this section, the basis for
31 such computation for taxable years beginning in nineteen hundred seven-
32 ty-two shall be the federal basis. For subsequent taxable years, the
33 basis of such computation shall be reduced only by the deduction for the
34 allowance for depletion deductible pursuant to this section. In any
35 taxable year when any such property is sold or otherwise disposed of,
36 with respect to which a deduction has been allowed pursuant to this
37 subdivision, the gain or loss thereon entering into the computation of
38 federal taxable income shall be disregarded in computing unincorporated
39 business taxable income and there shall be added to or subtracted from
40 federal gross income, so modified, the gain or loss upon such sale or
41 other disposition. In computing such gain or loss, the basis of the
42 property sold or disposed of shall be adjusted to reflect the deduction
43 allowed with respect to such property pursuant to this subdivision.
44 (k) A deduction shall be allowed for that portion of wages and sala-
45 ries paid or incurred for the taxable year for which a deduction is not
46 allowed pursuant to the provisions of section two hundred eighty-C of
47 the internal revenue code.
48 (l) For taxable years beginning after December thirty-first, nineteen
49 hundred eighty-one, except with respect to property which is a qualified
50 mass commuting vehicle described in subparagraph (D) of paragraph eight
51 of subsection (f) of section one hundred sixty-eight of the internal
52 revenue code, relating to qualified mass commuting vehicles, a deduction
53 shall be allowed for any amount which the taxpayer could have excluded
54 for purposes of this chapter had it not made the election provided for
55 in such paragraph eight as it was in effect for agreements entered into
56 prior to January first, nineteen hundred eighty-four.
S. 8578 464
1 (m) For taxable years beginning after December thirty-first, nineteen
2 hundred eighty-one, except with respect to property which is a qualified
3 mass commuting vehicle described in subparagraph (D) of paragraph eight
4 of subsection (f) of section one hundred sixty-eight of the internal
5 revenue code, relating to qualified mass commuting vehicles, no
6 deduction shall be allowed for any amount deductible for federal income
7 tax purposes solely as a result of an election made pursuant to the
8 provisions of such paragraph eight as it was in effect for agreements
9 entered into prior to January first, nineteen hundred eighty-four.
10 (n) In the case of property placed in service in taxable years begin-
11 ning before nineteen hundred ninety-four, for taxable years beginning
12 after December thirty-first, nineteen hundred eighty-one, except with
13 respect to property subject to the provisions of section two hundred
14 eighty-F of the internal revenue code and property subject to the
15 provisions of section one hundred sixty-eight of the internal revenue
16 code which is placed in service in this state in taxable years beginning
17 after December thirty-first, nineteen hundred eighty-four, no deduction
18 shall be allowed for the amount allowable as a deduction determined
19 under section one hundred sixty-eight of the internal revenue code.
20 (o) In the case of property placed in service in taxable years begin-
21 ning before nineteen hundred ninety-four, for taxable years beginning
22 after December thirty-first, nineteen hundred eighty-one, except with
23 respect to property subject to the provisions of section two hundred
24 eighty-F of the internal revenue code and property subject to the
25 provisions of section one hundred sixty-eight of the internal revenue
26 code which is placed in service in this state in taxable years beginning
27 after December thirty-first, nineteen hundred eighty-four, and provided
28 a deduction has not been disallowed pursuant to subdivision (m) of this
29 section, a taxpayer shall be allowed with respect to property which is
30 subject to the provisions of section one hundred sixty-eight of the
31 internal revenue code the depreciation deduction allowable under section
32 one hundred sixty-seven of the internal revenue code as such section
33 would have applied to property placed in service on December thirty-
34 first, nineteen hundred eighty.
35 (p) Notwithstanding any other provision of this chapter to the contra-
36 ry, no deduction shall be allowed for interest, depreciation or any
37 other expense directly or indirectly attributable to the holding, leas-
38 ing or managing of real property or to income or gain therefrom if, and
39 to the extent that, such holding, leasing or managing of real property
40 is not deemed an unincorporated business carried on by the taxpayer
41 pursuant to the provisions of subdivision (d) of section 11-502 of this
42 chapter.
43 (q) Notwithstanding any other provision of this chapter to the contra-
44 ry, no deduction shall be allowed for any expenses directly or indirect-
45 ly attributable to activities described in paragraph two of subdivision
46 (c) of section 11-502 of this chapter if, and to the extent that, such
47 activities are not deemed an unincorporated business carried on by the
48 taxpayer pursuant to the provisions of subdivision (c) of section 11-502
49 of this chapter.
50 (r) Notwithstanding any other provision of this chapter to the contra-
51 ry, in the case of a taxpayer that is an unincorporated entity described
52 in subparagraph (B) of paragraph four of subdivision (c) of section
53 11-502 of this chapter, no deduction shall be allowed for any losses or
54 expenses directly or indirectly attributable to the sale or other dispo-
55 sition of an interest in another unincorporated entity if, and to the
56 extent that, such losses or expenses are attributable to activities of
S. 8578 465
1 such other unincorporated entity not deemed an unincorporated business
2 carried on by the taxpayer pursuant to the provisions of subdivision (c)
3 of section 11-502 of this chapter.
4 (s) Notwithstanding any other provision of this chapter to the contra-
5 ry, no deduction shall be allowed for interest, depreciation or any
6 other expense directly or indirectly attributable to the provision by an
7 owner, lessee or fiduciary holding, leasing or managing real property of
8 the service of parking, garaging or storing of motor vehicles on a
9 monthly or longer term basis to tenants at such real property if, and to
10 the extent that, the provision of such services to such tenants is not
11 deemed an unincorporated business pursuant to the provisions of subdivi-
12 sion (d) of section 11-502 of this chapter.
13 (t) For taxable years ending after September tenth, two thousand one,
14 in the case of qualified property described in paragraph two of
15 subsection k of section one hundred sixty-eight of the internal revenue
16 code, other than qualified New York Liberty Zone property described in
17 paragraph two of subsection b of section fourteen hundred L of the
18 internal revenue code, without regard to clause (i) of subparagraph (C)
19 of such paragraph, no deduction shall be allowed for the amount allow-
20 able as a deduction under section one hundred sixty-seven of the inter-
21 nal revenue code.
22 (u) For taxable years ending after September tenth, two thousand one,
23 in the case of qualified property described in paragraph two of
24 subsection k of section one hundred sixty-eight of the internal revenue
25 code other than qualified New York Liberty Zone property described in
26 paragraph two of subsection b of section fourteen hundred L of the
27 internal revenue code, without regard to clause (i) of subparagraph (C)
28 of such paragraph, a deduction shall be allowed with respect to such
29 property equal to the depreciation deduction allowable under section one
30 hundred sixty-seven of the internal revenue code as such section would
31 have applied to such property had it been acquired by the taxpayer on
32 September tenth, two thousand one, provided, however, that for taxable
33 years beginning on or after January first, two thousand four, in the
34 case of a passenger motor vehicle or a sport utility vehicle subject to
35 the provisions of subdivision (w) of this section, the limitation under
36 clause (i) of subparagraph (A) of paragraph one of subdivision (a) of
37 section two hundred eighty-F of the internal revenue code applicable to
38 the amount allowed as a deduction under this paragraph shall be deter-
39 mined as of the date such vehicle was placed in service and not as of
40 September tenth, two thousand one.
41 (v) For taxable years beginning on or after January first, two thou-
42 sand four, in the case of a taxpayer that is not an eligible farmer as
43 defined in subsection (n) of section six hundred six of the tax law, no
44 deduction shall be allowed for the amounts allowable as a deduction
45 under sections one hundred seventy-nine, one hundred sixty-seven and one
46 hundred sixty-eight of the internal revenue code with respect to a sport
47 utility vehicle that is not a passenger automobile as defined in para-
48 graph five of subsection (d) of section two hundred eighty-F of the
49 internal revenue code.
50 (w) For taxable years beginning on or after January first, two thou-
51 sand four, in the case of a taxpayer that is not an eligible farmer as
52 defined in subsection (n) of section six hundred six of the tax law, a
53 deduction shall be allowed with respect to a sport utility vehicle that
54 is not a passenger automobile as defined in paragraph five of subsection
55 (d) of section two hundred eighty-F of the internal revenue code equal
56 to the amounts allowable as a deduction under sections one hundred
S. 8578 466
1 seventy-nine, one hundred sixty-seven and one hundred sixty-eight of the
2 internal revenue code, determined as if such sport utility vehicle were
3 a passenger automobile as defined in such paragraph five.
4 § 11-508 Allocation to the city. (a) General; allocation of business
5 income. If an unincorporated business is carried on both within and
6 without the city, as determined under regulations of the commissioner of
7 finance, there shall be allocated to the city, in the manner provided in
8 subdivision (b), (c) or (d) of this section, a fair and equitable
9 portion of its business income. For taxable years beginning before July
10 first, nineteen hundred ninety-six, if the unincorporated business has
11 no regular place of business outside the city, all of such business
12 income shall be allocated to the city.
13 (b) (1) Allocation by taxpayer's books. For taxable years beginning
14 before January first, two thousand five, the portion allocable to the
15 city may be determined from the books of the business if the methods
16 used in keeping such books are approved by the commissioner of finance
17 as fairly and equitably reflecting the income from the city.
18 (2)(i) If a taxpayer determines the portion of business income to be
19 allocated to the city using the method prescribed in paragraph one of
20 this subdivision on a timely filed original return with respect to each
21 of the two taxable years, each of which must consist of twelve months,
22 immediately preceding the taxpayer's first taxable year beginning on or
23 after January first, two thousand five, the taxpayer may make a one-time
24 election to continue to use that method for taxable years beginning on
25 or after January first, two thousand five and before January first, two
26 thousand twelve. Such election shall be made by using the method
27 prescribed in paragraph one of this subdivision on an original timely
28 filed return with respect to the first taxable year beginning on or
29 after January first, two thousand five and before January first, two
30 thousand six. Such election may not be made, or if made, shall be deemed
31 revoked as of the beginning of the taxable year if, for either of the
32 two taxable years immediately preceding the year in which the election
33 is made, the commissioner of finance has determined the methods used in
34 keeping such books do not fairly and equitably reflect the income from
35 the city.
36 (ii) (A) A taxpayer that has made the election provided for in subpar-
37 agraph (i) of this paragraph may revoke it by filing an original or
38 amended return using an allocation method permitted by this section
39 other than the method prescribed in paragraph one of this subdivision
40 unless the commissioner of finance has determined that such method does
41 not fairly and equitably reflect the income from the city.
42 (B) The election provided for in subparagraph (i) of this paragraph
43 shall be deemed to have been revoked as of the beginning of the taxable
44 year if, for any taxable year during which the election is intended to
45 be in effect, the commissioner of finance has determined that the meth-
46 ods used in keeping the taxpayer's books do not fairly and equitably
47 reflect the income from the city.
48 (C) In the case of a taxpayer that is a partnership or other unincor-
49 porated entity, the election provided for in subparagraph (i) of this
50 paragraph shall be deemed to have been revoked as of the beginning of
51 the taxable year unless one or more of the persons having a propor-
52 tionate interest or interests, amounting to more than fifty percent of
53 all such interests, in the taxpayer's unincorporated business gross
54 income and unincorporated business deductions for such taxable year were
55 persons having a proportionate interest or interests, amounting to more
56 than fifty percent of all such interests, in the taxpayer's unincorpo-
S. 8578 467
1 rated business gross income and unincorporated business deductions at
2 the end of the taxpayer's last taxable year beginning before January
3 first, two thousand five. For purposes of this clause, a transfer of an
4 ownership interest in unincorporated business gross income or unincorpo-
5 rated business deductions upon the death of a partner or owner to such
6 deceased partner's or owner's estate shall be disregarded but transfers
7 by such decedent's estate shall not be disregarded.
8 (D) Once the election provided for in subparagraph (i) of this para-
9 graph has been revoked by the taxpayer pursuant to clause (A) or deemed
10 revoked pursuant to clauses (B) or (C) of this subparagraph, the taxpay-
11 er shall be barred from using the method prescribed in paragraph one of
12 this subdivision for the taxable year in which the election has been
13 revoked or deemed revoked and any subsequent taxable year.
14 (c) Allocation by formula. If subdivision (b) does not apply to the
15 taxpayer, the portion allocable to the city shall be determined by
16 multiplying (A) the business income by (B) a business allocation
17 percentage to be determined by adding together the percentages computed
18 under paragraphs one, two and three of this subdivision, and dividing
19 the result by the number of percentages; provided, however, that for
20 taxable years beginning on or after July first, nineteen hundred nine-
21 ty-six, a taxpayer that is a "manufacturing business," as defined in
22 subdivision (g) of this section, may determine its business allocation
23 percentage as provided in such subdivision (g):
24 (1) Property percentage. The percentage computed by dividing (A) the
25 average of the value, at the beginning and end of the taxable year, of
26 real and tangible personal property connected with the unincorporated
27 business and located within the city, by (B) the average of the value,
28 at the beginning and end of the taxable year, of all real and tangible
29 personal property connected with the unincorporated business and located
30 both within and without the city. For this purpose, for taxable years
31 beginning before January first, two thousand five, real property shall
32 include real property rented to the unincorporated business and, for
33 this purpose, for taxable years beginning on and after January first,
34 two thousand five, real and tangible personal property shall include
35 real and tangible personal property rented to the unincorporated busi-
36 ness and the value of such real and tangible personal property rented to
37 the unincorporated business shall mean the product of (i) eight and (ii)
38 the gross rents payable for the rental of such property during the taxa-
39 ble year.
40 (2) Payroll percentage. The percentage computed by dividing (A) the
41 total wages, salaries and other personal service compensation paid or
42 incurred during the taxable year to employees in connection with the
43 unincorporated business carried on within the city, by (B) the total of
44 all wages, salaries and other personal service compensation paid or
45 incurred during the taxable year to employees in connection with the
46 unincorporated business carried on both within and without the city.
47 (3) Gross income percentage. The percentage computed by dividing (A)
48 the gross sales or charges for services performed by or through an agen-
49 cy located within the city, by (B) the total of all gross sales or
50 charges for services performed within and without the city. The sales or
51 charges to be allocated to the city shall include all sales negotiated
52 or consummated, and charges for services performed, by an employee,
53 agent, agency or independent contractor chiefly situated at, connected
54 by contract or otherwise with, or sent out from, offices of the unincor-
55 porated business, or other agencies, situated within the city; provided,
56 however, that for taxable years beginning on or after July first, nine-
S. 8578 468
1 teen hundred ninety-six, sales of tangible personal property shall not
2 be allocated to the city as provided in this paragraph, but shall be
3 allocated to the city only where shipments are made to points within the
4 city, and provided, further, that:
5 (A) for taxable years beginning on or after July first, two thousand
6 five, for taxpayers having gross receipts for the taxable year, deter-
7 mined without regard to any deductions, of less than one hundred thou-
8 sand dollars, charges for services performed shall be allocated to the
9 city to the extent that the services are performed within the city;
10 (B) for taxable years beginning on or after July first, two thousand
11 six, for taxpayers having gross receipts for the taxable year, deter-
12 mined without regard to any deductions, of less than three hundred thou-
13 sand dollars, charges for services performed shall be allocated to the
14 city to the extent that the services are performed within the city; and
15 (C) for taxable years beginning on or after July first, two thousand
16 seven, for all other taxpayers, charges for services performed shall be
17 allocated to the city to the extent that the services are performed
18 within the city.
19 (d) Other allocation methods. The portion allocable to the city shall
20 be determined in accordance with rules and regulations of the commis-
21 sioner of finance if it shall appear to the commissioner of finance that
22 the income from the city is not fairly and equitably reflected under the
23 provisions of either subdivision (b) or subdivision (c) of this section.
24 (e) Special rules for real estate. Income and deductions from the
25 rental of real property, and gain and loss from the sale, exchange or
26 other disposition of real property, shall not be subject to allocation
27 under subdivision (b), (c), or (d) of this section, but shall be consid-
28 ered as entirely derived from or connected with the state, other than
29 this state, in which such property is located or, if such property is
30 located in this state, the political subdivision thereof. To the extent
31 that anything in this subdivision is inconsistent with any provision of
32 subdivision (d) of section 11-502, subdivision (c) of section 11-506 or
33 subdivision (p) of section 11-507 of this chapter, the provisions of
34 such subdivisions shall take precedence over the provisions of this
35 subdivision.
36 (e-1) Special rules for publishers and broadcasters. (1) Notwithstand-
37 ing anything in paragraph three of subdivision (c) of this section to
38 the contrary and except as provided in paragraph four of this subdivi-
39 sion, in the case of a taxpayer engaged in the business of publishing
40 newspapers or periodicals, there shall be allocated to the city, for
41 purposes of such paragraph three, the gross sales or charges for
42 services arising from sales of subscriptions to, and advertising
43 contained in, such newspapers or periodicals, to the extent that such
44 newspapers or periodicals are delivered to points within the city.
45 (2) Notwithstanding anything in paragraph three of subdivision (c) of
46 this section to the contrary and except as provided in paragraph four of
47 this subdivision, in the case of a taxpayer engaged in the business of
48 broadcasting radio or television programs, whether through the public
49 airwaves or by cable, direct or indirect satellite transmission, or any
50 other means of transmission, there shall be allocated to the city, for
51 purposes of such paragraph three, a portion of the gross sales or charg-
52 es for services arising from the sale of subscriptions to such programs
53 or from the broadcasting of such programs and of commercial messages in
54 connection therewith, such portion to be determined according to the
55 number of listeners or viewers within and without the city.
S. 8578 469
1 (3) Notwithstanding anything in this section, other than subdivision
2 (e) of this section, to the contrary, in the case of a taxpayer that is
3 substantially engaged, in the aggregate, in any combination of the busi-
4 nesses referred to in paragraphs one, two and four of this subdivision,
5 the portion of business income allocable to the city shall be determined
6 in accordance with the provisions of subdivision (c) of this section, as
7 modified by paragraphs one, two and four of this subdivision, unless the
8 commissioner of finance determines that the business income from the
9 city is not fairly and equitably reflected under the provisions of such
10 subdivision (c), in which event the provisions of subdivision (d) of
11 this section shall apply in determining the portion of business income
12 allocable to the city and the provisions of subdivision (b) of this
13 section shall not apply. For purposes of this subdivision, a taxpayer
14 shall be deemed to be substantially engaged in a business or businesses
15 referred to in such paragraphs one and two if more than ten percent of
16 the taxpayer's gross receipts for the taxable year are attributable to
17 such business or businesses.
18 (4) Notwithstanding anything in paragraph one or two of this subdivi-
19 sion to the contrary, for taxable years beginning on or after January
20 first, two thousand two, in the case of a taxpayer engaged in the busi-
21 ness of publishing newspapers or periodicals, or broadcasting radio or
22 television programs, whether through the public airwaves or by cable,
23 direct or indirect satellite transmission, or any other means of trans-
24 mission, there shall be allocated to the city, for purposes of paragraph
25 three of subdivision (c) of this section, the gross sales or charges to
26 subscribers located in the city for subscriptions to such newspapers,
27 periodicals, or program services. For purposes of this paragraph, a
28 subscriber shall be deemed located in the city if, in the case of news-
29 papers and periodicals, the mailing address for the subscription is
30 within the city and, in the case of program services, the billing
31 address for the subscription is within the city. For purposes of this
32 clause, "subscriber" shall mean a member of the general public who
33 receives such newspapers, periodicals or program services and does not
34 further distribute them.
35 (e-2) Rules for receipts from certain services to investment compa-
36 nies. (1) For taxable years beginning on or after January first, two
37 thousand one, for purposes of paragraph three of subdivision (c) of this
38 section, the portion of receipts received from an investment company
39 arising from the sale of management, administration or distribution
40 services to such investment company determined in accordance with para-
41 graph two of this subdivision shall be deemed to arise from services
42 performed within the city, such portion referred to herein as the Staten
43 Island city portion.
44 (2) The Staten Island city portion shall be the product of the total
45 of such receipts from the sale of such services and a fraction. The
46 numerator of that fraction is the sum of the monthly percentages, as
47 defined hereinafter, determined for each month of the investment compa-
48 ny's taxable year for federal income tax purposes which taxable year
49 ends within the taxable year of the taxpayer, but excluding any month
50 during which the investment company had no outstanding shares. The
51 monthly percentage for each such month is determined by dividing the
52 number of shares in the investment company which are owned on the last
53 day of the month by shareholders that are domiciled in the city by the
54 total number of shares in the investment company outstanding on that
55 date. The denominator of the fraction is the number of such monthly
56 percentages.
S. 8578 470
1 (3)(A) For purposes of this subdivision the term "domicile", in the
2 case of an individual shall have the meaning ascribed to it under chap-
3 ter seventeen of this title; an estate or trust is domiciled in the city
4 if it is a city resident estate or trust as defined in paragraph three
5 of subdivision (b) of section 11-1705 of the code of the proceeding
6 municipality; a business entity is domiciled in the city if the location
7 of the actual seat of management or control is in the city. It shall be
8 presumed that the domicile of a shareholder, with respect to any month,
9 is his, her or its mailing address on the records of the investment
10 company as of the last day of such month.
11 (B) For purposes of this subdivision, the term "investment company"
12 means a regulated investment company, as defined in section eight
13 hundred fifty-one of the internal revenue code, and a partnership to
14 which subdivision (a) of section seven thousand seven hundred four of
15 the internal revenue code applies, by virtue of paragraph three of
16 subdivision (c) of section seven thousand seven hundred four of such
17 code, and that meets the requirements of subdivision (b) of section
18 eight hundred fifty-one of such code. The provisions of this subpara-
19 graph shall be applied to the taxable year for federal income tax
20 purposes of the business entity that is asserted to constitute an
21 investment company that ends within the taxable year of the taxpayer.
22 (C) For purposes of this subdivision, the term "receipts from an
23 investment company" includes amounts received directly from an invest-
24 ment company as well as amounts received from the shareholders in such
25 investment company in their capacity as such.
26 (D) For purposes of this subdivision, the term "management services"
27 means the rendering of investment advice to an investment company,
28 making determinations as to when sales and purchases of securities are
29 to be made on behalf of an investment company, or the selling or
30 purchasing of securities constituting assets of an investment company,
31 and related activities, but only where such activity or activities are
32 performed pursuant to a contract with the investment company entered
33 into pursuant to subdivision (a) of section fifteen of the federal
34 investment company act of nineteen hundred forty, as amended.
35 (E) For purposes of this subdivision, the term "distribution services"
36 means the services of advertising, servicing investor accounts, includ-
37 ing redemptions, marketing shares or selling shares of an investment
38 company, but, in the case of advertising, servicing investor accounts,
39 including redemptions, or marketing shares, only where such service is
40 performed by a person who is, or was, in the case of a closed end compa-
41 ny, also engaged in the service of selling such shares. In the case of
42 an open end company, such service of selling shares must be performed
43 pursuant to a contract entered into pursuant to subdivision (b) of
44 section fifteen of the federal investment company act of nineteen
45 hundred forty, as amended.
46 (F) For purposes of this subdivision, the term "administration
47 services" includes clerical, accounting, bookkeeping, data processing,
48 internal auditing, legal and tax services performed for an investment
49 company but only if the provider of such service or services during the
50 taxable year in which such service or services are sold also sells
51 management or distribution services, as defined in this subdivision, to
52 such investment company.
53 (e-3) Rules for receipts for services performed by registered securi-
54 ties or commodities brokers or dealers. (1) For taxable years beginning
55 after two thousand eight, in the case of a taxpayer which is a regis-
56 tered securities or commodities broker or dealer, for purposes of para-
S. 8578 471
1 graph three of subdivision (c) of this section, the receipts specified
2 in subparagraphs (A) through (G) of this paragraph shall be deemed to
3 arise from services performed within the city to the extent set forth in
4 such subparagraphs.
5 (A) Receipts constituting brokerage commissions derived from the
6 execution of securities or commodities purchase or sales orders for the
7 accounts of customers shall be deemed to arise from services performed
8 at the mailing address in the records of the taxpayer of the customer
9 who is responsible for paying such commissions.
10 (B) Receipts constituting margin interest earned on behalf of broker-
11 age accounts shall be deemed to arise from services performed at the
12 mailing address in the records of the taxpayer of the customer who is
13 responsible for paying such margin interest.
14 (C) Gross income, including any accrued interest or dividends, from
15 principal transactions for the purchase or sale of stocks, bonds,
16 foreign exchange and other securities or commodities, including futures
17 and forward contracts, options and other types of securities or commod-
18 ities derivatives contracts, shall be deemed to arise from services
19 performed within the city either (i) to the extent that production cred-
20 its are awarded to branches, offices or employees of the taxpayer within
21 the city as a result of such principal transactions or (ii) if the
22 taxpayer so elects, to the extent that the gross proceeds from such
23 principal transactions, determined without deduction for any cost
24 incurred by the taxpayer to acquire the securities or commodities, are
25 generated from sales of securities or commodities to customers within
26 the city based upon the mailing addresses of such customers in the
27 records of the taxpayer. For purposes of clause (ii) of this subpara-
28 graph, the taxpayer shall separately calculate such gross income from
29 principal transactions by type of security or commodity. For purposes of
30 this subparagraph, gross income from principal transactions shall be
31 determined after the deduction of any cost incurred by the taxpayer to
32 acquire the securities or commodities. For purposes of this subdivision,
33 the term "production credits" means credits granted pursuant to the
34 internal accounting system used by the taxpayer to measure the amount of
35 revenue that should be awarded to a particular branch or office or
36 employee of the taxpayer which is based, at least in part, on the
37 branch's, the office's or the employee's particular activities. Upon
38 request, the taxpayer shall be required to furnish a detailed explana-
39 tion of such internal accounting system to the department.
40 (D) (i) Receipts constituting fees earned by the taxpayer for advisory
41 services to a customer in connection with the underwriting of securities
42 for such customer, such customer being the entity which is contemplating
43 issuing or is issuing securities, or fees earned by the taxpayer for
44 managing an underwriting shall be deemed to arise from services
45 performed at the mailing address in the records of the taxpayer of such
46 customer who is responsible for paying such fees.
47 (ii) Receipts constituting the primary spread or selling concession
48 from underwritten securities shall be deemed to arise from services
49 performed within the city to the extent that production credits are
50 awarded to branches, offices or employees of the taxpayer within the
51 city as a result of the sale of the underwritten securities.
52 (iii) The term "primary spread" means the difference between the price
53 paid by the taxpayer to the issuer of the securities being marketed and
54 the price received from the subsequent sale of the underwritten securi-
55 ties at the initial public offering price, less any selling concession
56 and any fees paid to the taxpayer for advisory services or any manager's
S. 8578 472
1 fees, if such fees are not paid by the customer to the taxpayer sepa-
2 rately. The term "public offering price" means the price agreed upon by
3 the taxpayer and the issuer at which the securities are to be offered to
4 the public. The term "selling concession" means the amount paid to the
5 taxpayer for participating in the underwriting of a security where the
6 taxpayer is not the lead underwriter.
7 (E) Receipts constituting interest earned by the taxpayer on loans and
8 advances made by the taxpayer to an entity affiliated with the taxpayer
9 shall be deemed to arise from services performed at the principal place
10 of business of such affiliated entity. For purposes of this subpara-
11 graph, an entity shall be considered affiliated with the taxpayer if
12 such entity and the taxpayer have eighty percent or more common direct
13 or indirect, actual or beneficial ownership.
14 (F) Receipts constituting account maintenance fees shall be deemed to
15 arise from services performed at the mailing address in the records of
16 the taxpayer of the customer who is responsible for paying such account
17 maintenance fees.
18 (G) Receipts constituting fees for management or advisory services,
19 including fees for advisory services in relation to merger or acquisi-
20 tion activities, but excluding fees paid for services described in para-
21 graph one of subdivision (e-2) of this section, shall be deemed to arise
22 from services performed at the mailing address in the records of the
23 taxpayer of the customer who is responsible for paying such fees.
24 (2) For purposes of this subdivision, the term "securities" shall have
25 the same meaning as in paragraph two of subdivision (c) of section four
26 hundred seventy-five of the internal revenue code and the term "commod-
27 ities" shall have the same meaning as in paragraph two of subdivision
28 (e) of section four hundred seventy-five of such code. The term "regis-
29 tered securities or commodities broker or dealer" means a broker or
30 dealer registered as such by the securities and exchange commission or
31 the commodities futures trading commission, and shall include an OTC
32 derivatives dealer as defined under regulations of the securities and
33 exchange commission at title seventeen, part two hundred forty, section
34 3b-12 of the code of federal regulations (17 CFR 240.3b-12).
35 (3) If the taxpayer receives any of the receipts enumerated in para-
36 graph one of this subdivision as a result of a securities correspondent
37 relationship such taxpayer has with another registered securities or
38 commodities broker or dealer with the taxpayer acting in this relation-
39 ship as the clearing firm, such receipts shall be deemed to arise from
40 services performed within the city to the extent set forth in each of
41 the subparagraphs in paragraph one of this subdivision. The amount of
42 such receipts shall exclude the amount the taxpayer is required to pay
43 to the correspondent firm for such correspondent relationship. If the
44 taxpayer receives any of the receipts enumerated in paragraph one of
45 this subdivision as a result of a securities correspondent relationship
46 such taxpayer has with another registered securities or commodities
47 broker or dealer with the taxpayer acting in this relationship as the
48 introducing firm, such receipts shall be deemed to arise from services
49 performed within the city to the extent set forth in each of the subpar-
50 agraphs in paragraph one of this subdivision.
51 (4) If, for purposes of subparagraph (A), (B), (F), or (G) of para-
52 graph one of this subdivision, and clause (i) of subparagraph (C) of
53 paragraph one of this subdivision, the taxpayer is unable from its
54 records to determine the mailing address of the customer, the receipts
55 described in any of such subparagraphs and such clause shall be deemed
56 to arise from services performed at the branch or office of the taxpayer
S. 8578 473
1 that generates the transaction for the customer that generated such
2 receipts.
3 (f) Allocation of investment income. (1) The investment income of an
4 unincorporated business shall be allocated to the city by multiplying
5 such investment income by an investment allocation percentage to be
6 determined as follows:
7 (A) multiply the amount of its investment capital invested in each
8 stock, bond or other security, other than governmental securities,
9 during the period covered by its return by the issuer's allocation
10 percentage, determined as provided in paragraph two of this subdivision,
11 of the issuer or obligor thereof:
12 (B) add together the products so obtained; and
13 (C) divide the sum so obtained by the total of its investment capital
14 invested during such period in stocks, bonds and other securities;
15 provided, however, that in case any investment capital is invested in
16 any stock, bond or other security during only a portion of the period
17 covered by the return, only such portion of such capital shall be taken
18 into account; and provided, further, that if a taxpayer's investment
19 allocation percentage is zero, interest received on bank accounts shall
20 be allocated in the manner provided in subdivision (b), (c) or (d) of
21 this section.
22 (2) (A) In the case of an issuer or obligor subject to tax under
23 subchapter two or three-A of chapter six of this title, or subject to
24 tax as a utility corporation under chapter eleven of this title, the
25 issuer's allocation percentage shall be the percentage of the appropri-
26 ate measure which is required to be allocated within the city on the
27 report or reports, if any, required of the issuer or obligor under chap-
28 ter six or eleven of this title for the preceding year. The appropriate
29 measure referred to in this subparagraph shall be: in the case of an
30 issuer or obligor subject to subchapter two of chapter six of this
31 title, entire capital; and in the case of an issuer or obligor subject
32 to chapter eleven of this title as a utility corporation, gross income.
33 (B) In the case of an issuer or obligor subject to tax under part four
34 of subchapter three of chapter six of this title, the issuer's allo-
35 cation percentage shall be determined as follows:
36 (i) In the case of a banking corporation described in paragraphs one
37 through eight of subdivision (a) of section 11-640 of this title which
38 is organized under the laws of the United States, this state or any
39 other state of the United States, the issuer's allocation percentage
40 shall be its alternative entire net income allocation percentage, as
41 defined in subdivision (c) of section 11-642 of this title, for the
42 preceding year. In the case of such a banking corporation whose alterna-
43 tive entire net income for the preceding year is derived exclusively
44 from business carried on within the city, its issuer's allocation
45 percentage shall be one hundred percent.
46 (ii) In the case of a banking corporation described in paragraph two
47 of subdivision (a) of section 11-640 of this title which is organized
48 under the laws of a country other than the United States, the issuer's
49 allocation percentage shall be determined by dividing (I) the amount
50 described in clause (i) of subparagraph (A) of paragraph two of subdivi-
51 sion (a) of section 11-642 of this title with respect to such issuer or
52 obligor for the preceding year, by (II) the gross income of such issuer
53 or obligor from all sources within and without the United States, for
54 such preceding year, whether or not included in alternative entire net
55 income for such year.
S. 8578 474
1 (iii) In the case of an issuer or obligor described in paragraph nine
2 of subdivision (a) or in paragraph two of subdivision (d) of section
3 11-640 of this title, the issuer's allocation percentage shall be deter-
4 mined by dividing the portion of the entire capital of the issuer or
5 obligor allocable to the city for the preceding year by the entire capi-
6 tal, wherever located, of the issuer or obligor for the preceding year.
7 (C) Provided, however, that if a report or reports for the preceding
8 year are not filed, or if filed do not contain information which would
9 permit the determination of such issuer's allocation percentage, then
10 the issuer's allocation percentage to be used shall, at the discretion
11 of the commissioner of finance, be either (i) the issuer's allocation
12 percentage derived from the most recently filed report or reports of the
13 issuer or obligor or (ii) a percentage calculated, by the commissioner
14 of finance, reasonably to indicate the degree of economic presence in
15 the city of the issuer or obligor during the preceding year.
16 (3) For purposes of this subdivision, investment capital shall be
17 determined by taking the average value of the gross assets included
18 therein, less liabilities deductible therefrom pursuant to the
19 provisions of subdivision (h) of section 11-501 of this chapter. The
20 value of investment capital which consists of marketable securities
21 shall be the fair market value thereof and the value of investment capi-
22 tal other than marketable securities shall be the value thereof shown on
23 the books and records of the unincorporated business in accordance with
24 generally accepted accounting principles.
25 (g) Special rules for manufacturing businesses. (1) For taxable years
26 beginning on or after July first, nineteen hundred ninety-six and before
27 January first, two thousand eleven, a manufacturing business may elect
28 to determine its business allocation percentage by adding together the
29 percentages determined under paragraphs one, two and three of subdivi-
30 sion (c) of this section and an additional percentage equal to the
31 percentage determined under paragraph three of subdivision (c) of this
32 section, and dividing the result by the number of percentages so added
33 together.
34 (2) An election under this subdivision must be made on a timely filed
35 (determined with regard to extensions granted) original return for the
36 taxable year. Once made for a taxable year, such election shall be irre-
37 vocable for that taxable year. A separate election must be made for each
38 taxable year. A manufacturing business that has failed to make an
39 election as provided in this paragraph shall be required to determine
40 its business allocation percentage without regard to the provisions of
41 this subdivision. Notwithstanding anything in this paragraph to the
42 contrary, the commissioner of finance may permit a manufacturing busi-
43 ness to make or revoke an election under this subdivision, upon such
44 terms and conditions as the commissioner may prescribe, where the
45 commissioner determines that such permission should be granted in the
46 interests of fairness and equity due to a change in circumstances
47 resulting from an audit adjustment.
48 (3) As used in this subdivision, the term "manufacturing business"
49 means an unincorporated business primarily engaged in the manufacturing
50 and sale thereof of tangible personal property; and the term "manufac-
51 turing" includes the process, including the assembly process (i) of
52 working raw materials into wares suitable for use or (ii) which gives
53 new shapes, new qualities or new combinations to matter which already
54 has gone through some artificial process, by the use of machinery,
55 tools, appliances and other similar equipment. An unincorporated busi-
56 ness shall be deemed to be primarily engaged in the activities described
S. 8578 475
1 in the preceding sentence if more than fifty percent of its gross
2 receipts for the taxable year are attributable to such activities.
3 (h) Notwithstanding subdivision (d) of this section, if it shall
4 appear to the commissioner of finance that any business or investment
5 allocation percentage determined pursuant to this section does not prop-
6 erly reflect the activity, business, or income of a taxpayer within the
7 city, the commissioner of finance shall be authorized in his or her
8 discretion, in the case of a business allocation percentage, to adjust
9 it by (1) excluding one or more of the factors therein; (2) including
10 one or more factors, such as expenses, purchases, contract values, minus
11 subcontract values; (3) excluding one or more assets in computing such
12 allocation percentage, provided the income therefrom is also excluded in
13 determining unincorporated business entire net income, or (4) any other
14 similar or different method calculated to effect a fair and proper allo-
15 cation of the income reasonably attributable to the city, and in the
16 case of an investment allocation percentage, to adjust it by excluding
17 one or more assets in computing such percentage; provided the income
18 therefrom is also excluded in determining unincorporated business entire
19 net income. The commissioner of finance from time to time shall publish
20 all rulings of general public interest with respect to any application
21 of the provisions of this subdivision.
22 (i) Notwithstanding subdivision (c) of this section, but subject to
23 subdivision (g) of this section, the business allocation percentage
24 shall be computed in the manner set forth in this subdivision.
25 (1) For taxable years beginning in two thousand nine, the business
26 allocation percentage shall be determined by adding together the follow-
27 ing percentages:
28 (A) the product of thirty percent and the percentage determined under
29 paragraph one of subdivision (c) of this section,
30 (B) the product of thirty percent and the percentage determined under
31 paragraph two of subdivision (c) of this section, and
32 (C) the product of forty percent and the percentage determined under
33 paragraph three of subdivision (c) of this section.
34 (2) For taxable years beginning in two thousand ten, the business
35 allocation percentage shall be determined by adding together the follow-
36 ing percentages:
37 (A) the product of twenty-seven percent and the percentage determined
38 under paragraph one of subdivision (c) of this section,
39 (B) the product of twenty-seven percent and the percentage determined
40 under paragraph two of subdivision (c) of this section, and
41 (C) the product of forty-six percent and the percentage determined
42 under paragraph three of subdivision (c) of this section.
43 (3) For taxable years beginning in two thousand eleven, the business
44 allocation percentage shall be determined by adding together the follow-
45 ing percentages:
46 (A) the product of twenty-three and one-half percent and the percent-
47 age determined under paragraph one of subdivision (c) of this section,
48 (B) the product of twenty-three and one-half percent and the percent-
49 age determined under paragraph two of subdivision (c) of this section,
50 and
51 (C) the product of fifty-three percent and the percentage determined
52 under paragraph three of subdivision (c) of this section.
53 (4) For taxable years beginning in two thousand twelve, the business
54 allocation percentage shall be determined by adding together the follow-
55 ing percentages:
S. 8578 476
1 (A) the product of twenty percent and the percentage determined under
2 paragraph one of subdivision (c) of this section,
3 (B) the product of twenty percent and the percentage determined under
4 paragraph two of subdivision (c) of this section, and
5 (C) the product of sixty percent and the percentage determined under
6 paragraph three of subdivision (c) of this section.
7 (5) For taxable years beginning in two thousand thirteen, the business
8 allocation percentage shall be determined by adding together the follow-
9 ing percentages:
10 (A) the product of sixteen and one-half percent and the percentage
11 determined under paragraph one of subdivision (c) of this section,
12 (B) the product of sixteen and one-half percent and the percentage
13 determined under paragraph two of subdivision (c) of this section, and
14 (C) the product of sixty-seven percent and the percentage determined
15 under paragraph three of subdivision (c) of this section.
16 (6) For taxable years beginning in two thousand fourteen, the business
17 allocation percentage shall be determined by adding together the follow-
18 ing percentages:
19 (A) the product of thirteen and one-half percent and the percentage
20 determined under paragraph one of subdivision (c) of this section,
21 (B) the product of thirteen and one-half percent and the percentage
22 determined under paragraph two of subdivision (c) of this section, and
23 (C) the product of seventy-three percent and the percentage determined
24 under paragraph three of subdivision (c) of this section.
25 (7) For taxable years beginning in two thousand fifteen, the business
26 allocation percentage shall be determined by adding together the follow-
27 ing percentages:
28 (A) the product of ten percent and the percentage determined under
29 paragraph one of subdivision (c) of this section,
30 (B) the product of ten percent and the percentage determined under
31 paragraph two of subdivision (c) of this section, and
32 (C) the product of eighty percent and the percentage determined under
33 paragraph three of subdivision (c) of this section.
34 (8) For taxable years beginning in two thousand sixteen, the business
35 allocation percentage shall be determined by adding together the follow-
36 ing percentages:
37 (A) the product of six and one-half percent and the percentage deter-
38 mined under paragraph one of subdivision (c) of this section,
39 (B) the product of six and one-half percent and the percentage deter-
40 mined under paragraph two of subdivision (c) of this section, and
41 (C) the product of eighty-seven percent and the percentage determined
42 under paragraph three of subdivision (c) of this section.
43 (9) For taxable years beginning in two thousand seventeen, the busi-
44 ness allocation percentage shall be determined by adding together the
45 following percentages:
46 (A) the product of three and one-half percent and the percentage
47 determined under paragraph one of subdivision (c) of this section,
48 (B) the product of three and one-half percent and the percentage
49 determined under paragraph two of subdivision (c) of this section, and
50 (C) the product of ninety-three percent and the percentage determined
51 under paragraph three of subdivision (c) of this section.
52 (10) For taxable years beginning after two thousand seventeen, the
53 business allocation percentage shall be the percentage determined under
54 paragraph three of subdivision (c) of this section.
55 (11) The commissioner shall promulgate rules necessary to implement
56 the provisions of this subdivision under such circumstances where any of
S. 8578 477
1 the percentages to be determined under paragraph one, two or three of
2 subdivision (c) of this section cannot be determined because the taxpay-
3 er has no property, payroll or gross receipts from sales or services
4 within or without the city.
5 § 11-509 Deductions not subject to allocation. (a) In computing
6 unincorporated business taxable income, there shall be allowed, without
7 allocation under section 11-508 of this chapter, deductions for reason-
8 able compensation for taxable years beginning before January first, two
9 thousand seven, not in excess of five thousand dollars, and for taxable
10 years beginning on or after January first, two thousand seven, not in
11 excess of ten thousand dollars, for personal services of the proprietor
12 and each partner actively engaged in the unincorporated business, but
13 the aggregate of such deductions shall not exceed twenty per centum of
14 the unincorporated business taxable income computed without the benefit
15 of any deductions under this subdivision or the unincorporated business
16 exemptions under section 11-510 of this chapter.
17 (b) Subject to the conditions provided in paragraphs three and four of
18 this subdivision at the election of the taxpayer there shall also be
19 allowed, without allocation under section 11-508 of this chapter, either
20 or both of the items set forth in paragraphs one and two of this subdi-
21 vision, except that only one of the items shall be allowed with respect
22 to any one item of property.
23 (1) Depreciation with respect to any property such as described in
24 paragraphs three or four of this subdivision, and subject to the condi-
25 tions provided therein, not exceeding twice the depreciation allowed
26 with respect to the same property for federal income tax purposes. Such
27 deduction shall be allowed only upon condition that no deduction shall
28 be allowed pursuant to section 11-507 of this chapter for depreciation
29 of the same property, and the total of all deductions allowed pursuant
30 to this paragraph in any taxable year or years with respect to any prop-
31 erty shall not exceed its cost or other basis and, in the case of an
32 unincorporated business carried on both within and without this city,
33 with respect to property described in paragraph four of this subdivi-
34 sion, such total shall not exceed its cost or other basis multiplied by
35 (A) the percentage of the excess of the taxpayer's unincorporated busi-
36 ness gross income over its unincorporated business deductions allocated
37 to this city, or (B) the percentage of the taxpayer's business income
38 allocated to this city, whichever is applicable, which percentage shall
39 be determined under section 11-508 of this chapter for the first year
40 such depreciation is deducted.
41 (2) Expenditures paid or incurred during the taxable year for the
42 construction, reconstruction, erection or acquisition of any property
43 such as described in paragraph three or four of this subdivision, and
44 subject to the conditions provided therein, which is used or to be used
45 for purposes of research or development in the experimental or laborato-
46 ry sense. Such purposes shall not be deemed to include the ordinary
47 testing or inspection of materials or products for quality control,
48 efficiency surveys, management studies, consumer surveys, advertising,
49 promotions or research in connection with literary, historical or simi-
50 lar projects. Such deduction shall be allowed only on condition that, in
51 the case of an unincorporated business carried on both within and with-
52 out this city, with respect to property described in paragraph four of
53 this subdivision, such deduction does not exceed the expenditures multi-
54 plied by (A) the percentage of the excess of the taxpayer's unincorpo-
55 rated business gross income over its unincorporated business deductions
56 allocated to this city, or (B) the percentage of the taxpayer's business
S. 8578 478
1 income allocated to this city, whichever is applicable, which percentage
2 shall be determined under section 11-508 of this chapter for the first
3 year such depreciation is deducted, and that, for the taxable year and
4 all succeeding taxable years, no deduction shall be allowed pursuant to
5 section 11-507 of this chapter on account of such expenditures or on
6 account of depreciation of the same property, except to the extent that
7 its basis may be attributable to factors other than such expenditures,
8 or in case a deduction is allowable pursuant to this paragraph for only
9 a part of such expenditures, on condition that any deduction allowable
10 for federal income tax purposes on account of such expenditures or on
11 account of depreciation of the same property shall be proportionately
12 reduced in determining the deductions allowable pursuant to section
13 11-507 of this chapter for the taxable year and all succeeding taxable
14 years. With respect to property which is used or to be used for research
15 and development only in part, or during only part of its useful life,
16 the deduction allowable pursuant to this paragraph shall be limited to a
17 proportionate part of the expenditures relating thereto. If a deduction
18 shall have been allowed pursuant to this paragraph for all or part of
19 such expenditures with respect to any property, and such property is
20 used for purposes other than research and development to a greater
21 extent than originally reported, the taxpayer shall report such use in
22 the taxpayer's return for the first taxable year during which it occurs,
23 and the commissioner of finance may recompute the tax for the year or
24 years for which such deduction was allowed, and may assess any addi-
25 tional tax resulting from such recomputation within the time fixed by
26 subdivision (c) of section 11-523 of this chapter.
27 (3) For purposes of this paragraph, such deduction shall be allowed
28 only with respect to tangible property which is depreciable pursuant to
29 section one hundred sixty-seven of the internal revenue code, having a
30 situs in the city and used in the taxpayer's trade or business, (A)
31 constructed, reconstructed or erected after December thirty-first, nine-
32 teen hundred sixty-five, pursuant to a contract which was, on or before
33 December thirty-first, nineteen hundred sixty-seven, and at all times
34 thereafter, binding on the taxpayer or, property, the physical
35 construction, reconstruction or erection of which began on or before
36 December thirty-first, nineteen hundred sixty-seven or which began after
37 such date pursuant to an order placed on or before December thirty-
38 first, nineteen hundred sixty-seven, and then only with respect to that
39 portion of the basis thereof or the expenditure relating thereto which
40 is properly attributable to such construction, reconstruction or
41 erection after December thirty-first, nineteen hundred sixty-five, or
42 (B) acquired after December thirty-first, nineteen hundred sixty-five,
43 pursuant to a contract which was, on or before December thirty-first,
44 nineteen hundred sixty-seven, and at all times thereafter, binding on
45 the taxpayer or pursuant to an order placed on or before December thir-
46 ty-first, nineteen hundred sixty-seven, by purchase as defined in
47 section one hundred seventy-nine (d) of the internal revenue code, if
48 the original use of such property commenced with the taxpayer, commenced
49 in the city and commenced after December thirty-first, nineteen hundred
50 sixty-five or (C) acquired, constructed, reconstructed, or erected
51 subsequent to December thirty-first, nineteen hundred sixty-seven, if
52 such acquisition, construction, reconstruction or erection is pursuant
53 to a plan of the taxpayer which was in existence December thirty-first,
54 nineteen hundred sixty-seven and not thereafter substantially modified,
55 and such acquisition, construction, reconstruction or erection would
56 qualify under the rules in paragraph four, five or six of subsection (h)
S. 8578 479
1 of section forty-eight of the internal revenue code provided all refer-
2 ences in such paragraphs four, five and six to the dates October nine,
3 nineteen hundred sixty-six, and October ten, nineteen hundred sixty-six,
4 shall be read as December thirty-first, nineteen hundred sixty-seven. A
5 taxpayer shall be allowed a deduction under subparagraph (A), (B) or (C)
6 of this paragraph only if the tangible property shall be delivered or
7 the construction, reconstruction or erection shall be completed on or
8 before December thirty-first, nineteen hundred sixty-nine, except in the
9 case of tangible property which is acquired, constructed, reconstructed
10 or erected pursuant to a contract which was, on or before December thir-
11 ty-first, nineteen hundred sixty-seven, and at all times thereafter,
12 binding on the taxpayer. However, for any taxable year beginning on or
13 after January first, nineteen hundred sixty-eight, a taxpayer shall not
14 be allowed a deduction under paragraph one of this subdivision with
15 respect to tangible personal property leased to any other person or
16 corporation, provided, any contract or agreement to lease or rent or for
17 a license to use such property shall be considered a lease. With
18 respect to property which a taxpayer uses for purposes other than leas-
19 ing for part of a taxable year and leases for a part of a taxable year,
20 a deduction under paragraph one of this subdivision may be taken in
21 proportion to the part of the year such property is used by the taxpay-
22 er.
23 (4) For purposes of this paragraph, such deductions shall be allowed
24 only with respect to tangible property which is depreciable pursuant to
25 section one hundred sixty-seven of the internal revenue code, having a
26 situs in this city and used in the taxpayer's trade or business, (A) the
27 construction, reconstruction, or erection of which is completed after
28 December thirty-first, nineteen hundred sixty-seven, and then only with
29 respect to that portion of the basis thereof or the expenditures relat-
30 ing thereto which is properly attributable to such construction, recon-
31 struction or erection after December thirty-first, nineteen hundred
32 sixty-three, or (B) acquired after December thirty-first, nineteen
33 hundred sixty-seven, by purchase as defined in section one hundred
34 seventy-nine (d) of the internal revenue code, if the original use of
35 such property commenced with the taxpayer, commenced in this city and
36 commenced after December thirty-first, nineteen hundred sixty-five.
37 Provided, however, a deduction under paragraph one of this subdivision
38 shall be allowed with respect to property described in this paragraph
39 only on condition that such property shall be principally used by the
40 taxpayer in the production of goods by manufacturing; processing; assem-
41 bling; refining; mining; extracting; farming; agriculture; horticulture;
42 floriculture; viticulture or commercial fishing, provided, manufacturing
43 shall mean the process of working raw materials into wares suitable for
44 use or which gives new shapes, new qualities or new combinations to
45 matter which already has gone through some artificial process by the use
46 of machinery, tools, appliances, and other similar equipment. Property
47 used in the production of goods shall include machinery, equipment or
48 other tangible property which is principally used in the repair and
49 service of other machinery, equipment or other tangible property used
50 principally in the production of goods and shall include all facilities
51 used in the manufacturing operation, including storage of material to be
52 used in manufacturing and of the products that are manufactured. At the
53 option of the taxpayer, air and water pollution control facilities which
54 qualify for elective deductions under subdivision (i) of section 11-507
55 of this chapter may be treated, for purposes of this paragraph, as
56 tangible property principally used in the production of goods by manu-
S. 8578 480
1 facturing; processing; assembling; refining; mining; extracting; farm-
2 ing; agriculture; horticulture; floriculture; viticulture or commercial
3 fishing, in which event, a deduction shall not be allowed under subdivi-
4 sion (i) of section 11-507 of this chapter. However, for any taxable
5 year beginning on or after January first, nineteen hundred sixty-eight,
6 a taxpayer shall not be allowed a deduction under paragraph one of this
7 subdivision with respect to tangible personal property leased to any
8 other person or corporation, provided, any contract or agreement to
9 lease or rent or for a license to use such property shall be considered
10 a lease. With respect to property which a taxpayer uses for purposes
11 other than leasing for part of a taxable year and leases for a part of a
12 taxable year, a deduction under paragraph one shall be allowed in
13 proportion to the part of the year such property is used by the taxpay-
14 er.
15 (5) If the deductions allowable for any taxable year pursuant to this
16 subdivision exceed the taxpayer's unincorporated business taxable
17 income, determined without the allowance of such deductions, the excess
18 may be carried over to the following taxable year or years and may be
19 deducted, without allocation under section 11-508 of this chapter, in
20 computing unincorporated business taxable income for such year or years.
21 (6) In any taxable year when property is sold or otherwise disposed
22 of, with respect to which a deduction has been allowed pursuant to para-
23 graph one or two of this subdivision, the basis of such property shall
24 be adjusted to reflect the deductions so allowed, and if the basis as so
25 adjusted is lower than the adjusted basis of the same property for
26 federal income tax purposes, there shall be added to federal gross
27 income the amount of the difference between such adjusted bases.
28 § 11-510 Unincorporated business exemptions. In computing unincorpo-
29 rated business taxable income, there shall be allowed, without allo-
30 cation under section 11-508 of this chapter:
31 (a) an unincorporated business exemption of five thousand dollars,
32 prorated for taxable years of less than twelve months under regulations
33 of the commissioner of finance;
34 (b) if a partner in an unincorporated business is taxable under this
35 chapter or under any local law imposed pursuant to section one of chap-
36 ter seven hundred seventy-two of the laws of nineteen hundred sixty-six,
37 an exemption for the amount of the partner's proportionate interest in
38 the excess of the unincorporated business gross income over the
39 deductions allowed under sections 11-507 and 11-509 of this chapter, but
40 this exemption shall be limited to the amount which is included in the
41 partner's unincorporated business taxable income allocable to the city,
42 or included in a corporate partner's net income allocable to the city,
43 provided, however, no such exemption shall be allowed to an unincorpo-
44 rated business for any taxable year of the unincorporated business
45 beginning after June thirtieth, nineteen hundred ninety-four.
46 § 11-511 Declarations of estimated tax. (a) Requirement of declara-
47 tion. Except as provided in subdivision (j) of this section, every
48 unincorporated business shall make a declaration of its estimated tax
49 for the taxable year, containing such information as the commissioner of
50 finance may prescribe by regulations or instruction, if: (1) for taxable
51 years beginning after nineteen hundred eighty-six but before nineteen
52 hundred ninety-six, its unincorporated business taxable income can
53 reasonably be expected to exceed fifteen thousand dollars; (2) for taxa-
54 ble years beginning in nineteen hundred ninety-six, its unincorporated
55 business taxable income can reasonably be expected to exceed twenty
56 thousand dollars; (3) for taxable years beginning after nineteen hundred
S. 8578 481
1 ninety-six but before two thousand nine, its estimated tax can reason-
2 ably be expected to exceed one thousand eight hundred dollars; and (4)
3 for taxable years beginning after two thousand eight, its estimated tax
4 can reasonably be expected to exceed three thousand four hundred
5 dollars.
6 (b) Definition of estimated tax. The term "estimated tax" means the
7 amount which an unincorporated business estimates to be its tax under
8 this chapter for the taxable year, less the amount which it estimates to
9 be the sum of any credits allowable against the tax other than the cred-
10 it allowable under subdivision (c) of section 11-503 of this chapter.
11 (c) Time for filing declaration. Except as hereinafter provided, a
12 declaration of estimated tax required under this section shall be filed
13 on or before April fifteenth of the taxable year provided, however, that
14 if the requirements of subdivision (a) of this section are first met:
15 (1) after April first and before June second of the taxable year, the
16 declaration shall be filed on or before June fifteenth, or
17 (2) after June first and before September second of the taxable year,
18 the declaration shall be filed on or before September fifteenth, or
19 (3) after September first of the taxable year, the declaration shall
20 be filed on or before January fifteenth of the succeeding year.
21 (d) Filing of declarations on or before January fifteenth.
22 (1) A declaration of estimated tax by an unincorporated business
23 having an estimated unincorporated business taxable income from farming,
24 including oyster farming, for the taxable year which is at least two-
25 thirds of its total estimated unincorporated business taxable income for
26 the taxable year may be filed at any time on or before January fifteenth
27 of the succeeding year.
28 (2) For taxable years beginning before nineteen hundred ninety-seven,
29 a declaration of estimated tax under this section of forty dollars or
30 less for the taxable year may be filed at any time on or before January
31 fifteenth of the succeeding year under regulations of the commissioner
32 of finance.
33 (e) Amendments of declaration. An unincorporated business may amend a
34 declaration under regulations of the commissioner of finance.
35 (f) Return as declaration or amendment. If on or before February
36 fifteenth of the succeeding taxable year an unincorporated business
37 subject to the estimated tax requirements of this section files its
38 return for the taxable year for which the declaration is required, and
39 pays on or before such date the full amount of the tax shown to be due
40 on the return:
41 (1) such return shall be considered as its declaration if no declara-
42 tion was required to be filed during the taxable year, but is otherwise
43 required to be filed on or before January fifteenth of the succeeding
44 year, and
45 (2) such return shall be considered as the amendment permitted by
46 subdivision (e) of this section to be filed on or before January
47 fifteenth if the tax shown on the return is greater than the estimated
48 tax shown in a declaration previously made.
49 (g) Fiscal year. This section shall apply to a taxable year other
50 than a calendar year by the substitution of the months of such fiscal
51 year for the corresponding months specified in this section.
52 (h) Short taxable year. An unincorporated business subject to the
53 estimated tax requirements of this section and having a taxable year of
54 less than twelve months shall make a declaration in accordance with
55 regulations of the commissioner of finance.
S. 8578 482
1 (i) Declaration of unincorporated business under a disability. The
2 declaration of estimated tax for an unincorporated business which is
3 unable to make a declaration for any reason shall be made and filed by
4 the committee, fiduciary or other person charged with the care of the
5 property of such unincorporated business, other than a receiver in
6 possession of only a part of such property, or by his or her duly
7 authorized agent.
8 (j) Declaration of estimated tax for taxable years beginning prior to
9 July thirteenth, nineteen hundred sixty-six. Notwithstanding subdivision
10 (c) of this section, no declaration of estimated tax required by subdi-
11 vision (a) of this section need be filed until September twelfth, nine-
12 teen hundred sixty-six.
13 § 11-512 Payments of estimated tax. (a) General. The estimated tax
14 with respect to which a declaration is required shall be paid as
15 follows:
16 (1) If the declaration is filed on or before April fifteenth of the
17 taxable year, the estimated tax shall be paid in four equal install-
18 ments. The first installment shall be paid at the time of the filing of
19 the declaration, and the second, third and fourth installments shall be
20 paid on the following June fifteenth, September fifteenth, and January
21 fifteenth, respectively.
22 (2) If the declaration is filed after April fifteenth and not after
23 June fifteenth of the taxable year, and is not required to be filed on
24 or before April fifteenth of the taxable year, the estimated tax shall
25 be paid in three equal installments. The first installment shall be
26 paid at the time of the filing of the declaration, and the second and
27 third installments shall be paid on the following September fifteenth
28 and January fifteenth, respectively.
29 (3) If the declaration is filed after June fifteenth and not after
30 September fifteenth of the taxable year, and is not required to be filed
31 on or before June fifteenth of the taxable year, the estimated tax shall
32 be paid in two equal installments. The first installment shall be paid
33 at the time of the filing of the declaration, and the second shall be
34 paid on the following January fifteenth.
35 (4) If the declaration is filed after September fifteenth of the taxa-
36 ble year, and is not required to be filed on or before September
37 fifteenth of the taxable year, the estimated tax shall be paid in full
38 at the time of the filing of the declaration.
39 (5) If the declaration is filed after the time prescribed therefor, or
40 after the expiration of any extension of time therefor, paragraphs two,
41 three and four of this subdivision shall not apply, and there shall be
42 paid at the time of such filing all installments of estimated tax paya-
43 ble at or before such time, and the remaining installments shall be paid
44 at the times at which, and in the amounts in which, they would have been
45 payable if the declaration had been filed when due.
46 (b) Amendments of declaration. If any amendment of a declaration is
47 filed, the remaining installments, if any, shall be ratably increased or
48 decreased, as the case may be, to reflect any increase or decrease in
49 the estimated tax by reason of such amendment, and if any amendment is
50 made after September fifteenth of the taxable year, any increase in the
51 estimated tax by reason thereof shall be paid at the time of making such
52 amendment.
53 (c) Application to short taxable year. This section shall apply to a
54 taxable year of less than twelve months in accordance with regulations
55 of the commissioner of finance.
S. 8578 483
1 (d) Fiscal year. This section shall apply to a taxable year other
2 than a calendar year by the substitution of the months of such fiscal
3 year for the corresponding months specified in this section.
4 (e) Installments paid in advance. An unincorporated business may elect
5 to pay any installment of its estimated tax prior to the date prescribed
6 for the payment thereof.
7 (f) Cross reference. For unincorporated businesses with taxable years
8 beginning prior to July thirteenth, nineteen hundred sixty-six, see
9 subdivision (j) of section 11-511 of this chapter.
10 (g) Taxpayers with credit relating to stock transfer tax. The portion
11 of an overpayment attributable to a credit allowable pursuant to subdi-
12 vision (c) of section 11-503 of this chapter may not be credited against
13 any payment due under this section.
14 § 11-513 Accounting periods and methods. (a) Accounting periods. A
15 taxpayer's taxable year under this chapter shall be the same as the
16 taxpayer's taxable year for federal income tax purposes.
17 (b) Accounting methods. A taxpayer's method of accounting under this
18 chapter shall be the same as the taxpayer's method of accounting for
19 federal income tax purposes. In the absence of any method of accounting
20 for federal income tax purposes, unincorporated business taxable income
21 shall be computed under such method as in the opinion of the commission-
22 er of finance clearly reflects income.
23 (c) Change of accounting period or method. (1) If a taxpayer's taxa-
24 ble year or method of accounting is changed for federal income tax
25 purposes, the taxable year or method of accounting for purposes of this
26 chapter shall be similarly changed.
27 (2) If a taxpayer's method of accounting is changed, other than from
28 an accrual to an installment method, any additional tax which results
29 from adjustments determined to be necessary solely by reason of the
30 change shall not be greater than if such adjustments were ratably allo-
31 cated and included for the taxable year of the change and the preceding
32 taxable years, not in excess of two, beginning after January first,
33 nineteen hundred sixty-six, during which the taxpayer used the method of
34 accounting from which the change is made.
35 (3) If a taxpayer's method of accounting is changed from an accrual
36 to an installment method, any additional tax for the year of such change
37 of method and for any subsequent year, which is attributable to the
38 receipt of installment payments properly accrued in a prior year, shall
39 be reduced by the portion of tax for any prior taxable year attributable
40 to the accrual of such installment payments, in accordance with regu-
41 lations of the commissioner of finance.
42 § 11-514 Returns, payment of tax. (a) General. An unincorporated
43 business income tax return shall be made and filed, and the balance of
44 any tax shown on the face of such return, not previously paid as
45 installments of estimated tax, shall be paid, on or before the fifteenth
46 day of the fourth month following the close of a taxable year, except
47 that in the case of an unincorporated business classified as a partner-
48 ship for federal income tax purposes, such return shall be made and
49 filed and such balance shall be paid on or before the fifteenth day of
50 the third month following the close of a taxable year for taxable years
51 beginning on or after January first, two thousand sixteen, by or for
52 every:
53 (1) unincorporated business, for taxable years beginning after nine-
54 teen hundred eighty-six but before nineteen hundred ninety-seven, having
55 unincorporated business gross income, determined for purposes of this
56 subdivision without any deduction for the cost of goods sold or services
S. 8578 484
1 performed, of more than ten thousand dollars, or having any amount of
2 unincorporated business taxable income;
3 (2) partnership, for taxable years beginning after nineteen hundred
4 ninety-six, having unincorporated business gross income, determined for
5 purposes of this subdivision without any deduction for the cost of goods
6 sold or services performed, of more than twenty-five thousand dollars,
7 or having unincorporated business taxable income of more than fifteen
8 thousand dollars;
9 (3) unincorporated business other than a partnership, for taxable
10 years beginning after nineteen hundred ninety-six, having unincorporated
11 business gross income, determined for purposes of this subdivision with-
12 out any deduction for the cost of goods sold or services performed, of
13 more than seventy-five thousand dollars, or having unincorporated busi-
14 ness taxable income of more than thirty-five thousand dollars; and
15 (4) unincorporated business, for taxable years beginning after two
16 thousand eight, having unincorporated business gross income, determined
17 for purposes of this subdivision without any deduction for the cost of
18 goods sold or services performed, of more than ninety-five thousand
19 dollars.
20 (b) Decedents. The return for any deceased individual shall be made
21 and filed by his or her executor, administrator, or other person charged
22 with his or her property. If a final return of a decedent is for a
23 fractional part of a year, the due date of such return shall be the
24 fifteenth day of the fourth month following the close of the twelve-
25 month period which began with the first day of such fractional part of
26 the year.
27 (c) Individuals under a disability. The return for an individual who
28 is unable to make a return by reason of minority or other disability
29 shall be made and filed by such individual's guardian, committee, fidu-
30 ciary or other person charged with the care of his or her person or
31 property, other than a receiver in possession of only a part of his or
32 her property, or by such individual's duly authorized agent.
33 (d) Estates and trusts. The return for an estate or trust shall be
34 made and filed by the fiduciary.
35 (e) Joint fiduciaries. If two or more fiduciaries are acting jointly,
36 the return may be made by any one of them.
37 (f) Returns for taxable years ending prior to December thirty-first,
38 nineteen hundred sixty-six. With respect to taxable years ending prior
39 to December thirty-first, nineteen hundred sixty-six, the returns
40 required to be made and filed pursuant to this section shall be made and
41 filed on or before the fifteenth day of the fourth month following the
42 close of such taxable year or September twelfth, nineteen hundred
43 sixty-six, whichever is later.
44 (g) Taxpayers with credit relating to stock transfer tax. Subdivision
45 (a) of this section shall apply to a taxpayer which has a right to a
46 credit pursuant to subdivision (c) of section 11-503 of this chapter,
47 except that the tax, or balance thereof, payable to the commissioner of
48 finance in full pursuant to subdivision (a) of this section, at the time
49 the report is required to be filed, shall be calculated and paid at such
50 time as if the credit provided for in subdivision (c) of section 11-503
51 of this chapter were not allowed.
52 § 11-515 Time and place for filing returns and paying tax. A person
53 required to make and file a return under this chapter shall, without
54 assessment, notice or demand, pay any tax due thereon to the commission-
55 er of finance on or before the date fixed for filing such return, deter-
56 mined without regard to any extension of time for filing the return.
S. 8578 485
1 The commissioner of finance shall prescribe by regulation the place for
2 filing any return, declaration, statement, or other document required
3 pursuant to this chapter and for payment of any tax.
4 § 11-516 Signing of returns and other documents. (a) General. Any
5 return, declaration, statement or other document required to be made
6 pursuant to this chapter shall be signed in accordance with regulations
7 or instructions prescribed by the commissioner of finance. The fact
8 that an individual's name is signed to a return, declaration, statement,
9 or other document, shall be prima facie evidence for all purposes that
10 the return, declaration, statement or other document was actually signed
11 by such individual.
12 (b) Partnerships. Any return, statement or other document required of
13 a partnership shall be signed by one or more partners. The fact that a
14 partner's name is signed to a return, statement, or other document,
15 shall be prima facie evidence for all purposes that such partner is
16 authorized to sign on behalf of the partnership.
17 (c) Certifications. The making or filing of any return, declaration,
18 statement or other document or copy thereof required to be made or filed
19 pursuant to this chapter, including a copy of a federal return, shall
20 constitute a certification by the person making or filing such return,
21 declaration, statement or other document or copy thereof that the state-
22 ments contained therein are true and that any copy filed is a true copy.
23 § 11-517 Extensions of time. (a) General. The commissioner of
24 finance may grant a reasonable extension of time for payment of tax or
25 estimated tax, or any installment, or for filing any return, declara-
26 tion, statement, or other document required pursuant to this chapter, on
27 such terms and conditions as it may require. Except for a taxpayer who
28 is outside the United States, no such extension for filing any return,
29 declaration, statement or other document, shall exceed six months.
30 (b) Furnishing of security. If any extension of time is granted for
31 payment of any amount of tax, the commissioner of finance may require
32 the taxpayer to furnish a bond or other security in an amount not
33 exceeding twice the amount for which the extension of time for payment
34 is granted, on such terms and conditions as the commissioner of finance
35 may require.
36 § 11-518 Requirements concerning returns, notices, records and state-
37 ments. (a) General. The commissioner of finance may prescribe regu-
38 lations as to the keeping of records, the content and forms of returns
39 and statements, and the filing of copies of federal income tax returns
40 and determinations. The commissioner of finance may require any person,
41 by regulation or notice served upon such person, to make such returns,
42 render such statements, or keep such records, as the commissioner of
43 finance may deem sufficient to show whether or not such person is liable
44 under this chapter for tax or for collection of tax.
45 (b) Notice of qualification as receiver, etc. Every receiver, trustee
46 in bankruptcy, assignee for benefit of creditors, or other like fiduci-
47 ary shall give notice of his or her qualification as such to the commis-
48 sioner of finance, as may be required by regulation.
49 § 11-519 Report of change in federal or New York state taxable
50 income. If the amount of a taxpayer's federal or New York state taxable
51 income reported on his or her federal or New York state income tax for
52 any taxable year is changed or corrected by the United States internal
53 revenue service or the New York state tax commission or other competent
54 authority, or as the result of a renegotiation of a contract or subcon-
55 tract with the United States or the state of New York, or if a taxpayer,
56 pursuant to subsection (d) of section sixty-two hundred thirteen of the
S. 8578 486
1 internal revenue code, executes a notice of waiver of the restrictions
2 provided in subsection (a) of said section, or if a taxpayer, pursuant
3 to subsection (f) of section six hundred eighty-one of the tax law,
4 executes a notice or waiver of the restrictions provided in subsection
5 (c) of such section of the tax law, the taxpayer shall report such
6 change or correction in federal or New York state taxable income or such
7 execution of such notice of waiver and the changes or corrections of the
8 taxpayer's federal or New York state taxable income on which it is
9 based, within ninety days after the final determination of such change,
10 correction, or renegotiation, or such execution of such notice of waiv-
11 er, or as otherwise required by the commissioner of finance, and shall
12 concede the accuracy of such determination or state wherein it is erro-
13 neous. Any taxpayer filing an amended federal or New York state income
14 tax return shall also file within ninety days thereafter an amended
15 return under this chapter, and shall give such information as the
16 commissioner of finance may require. The commissioner of finance may by
17 regulation prescribe such exceptions to the requirements of this section
18 as the commissioner deems appropriate.
19 § 11-519.1 Report of change of state sales and compensating use tax
20 liability. Where the state tax commission changes or corrects a taxpay-
21 er's sales and compensating use tax liability with respect to the
22 purchase or use of items for which a sales or compensating use tax cred-
23 it against the tax imposed by this chapter was claimed, the taxpayer
24 shall report such change or correction to the commissioner of finance
25 within ninety days of the final determination of such change or
26 correction, or as required by the commissioner of finance, and shall
27 concede the accuracy of such determination or state wherein it is erro-
28 neous. Any taxpayer filing an amended return or report relating to the
29 purchase or use of such items shall also file within ninety days there-
30 after a copy of such amended return or report with the commissioner of
31 finance.
32 § 11-520 Change of election. Any election expressly authorized by
33 this chapter, other than the election authorized by section 11-506 of
34 this chapter, may be changed on such terms and conditions as the commis-
35 sioner of finance may prescribe by regulation.
36 § 11-521 Notice of deficiency. (a) General. If upon examination of a
37 taxpayer's return under this chapter the commissioner of finance deter-
38 mines that there is a deficiency of income tax, the commissioner may
39 mail a notice of deficiency to the taxpayer. If a taxpayer fails to file
40 a return required under this chapter, the commissioner of finance is
41 authorized to estimate the taxpayer's city unincorporated business taxa-
42 ble income and tax thereon, from any information in the commissioner's
43 possession, and to mail a notice of deficiency to the taxpayer. A notice
44 of deficiency shall be mailed by certified or registered mail to the
45 taxpayer at his or her last known address in or out of the city. If the
46 taxpayer is deceased or under a legal disability, a notice of deficiency
47 may be mailed to his or her last known address in or out of the city,
48 unless the commissioner of finance has received notice of the existence
49 of a fiduciary relationship with respect to the taxpayer.
50 (b) Notice of deficiency as assessment. After ninety days from the
51 mailing of a notice of deficiency or, if the commissioner of finance has
52 established a conciliation procedure pursuant to section 11-124 of this
53 title and the taxpayer has requested a conciliation conference in
54 accordance therewith, after ninety days from the mailing of the concil-
55 iation decision or the date of the commissioner's confirmation of the
56 discontinuance of the conciliation proceeding, such notice shall be an
S. 8578 487
1 assessment of the amount of tax specified therein, together with the
2 interest, additions to tax and penalties stated in such notice, except
3 only for any such tax or other amounts as to which the taxpayer has
4 within such ninety day period filed with the tax appeals tribunal a
5 petition under section 11-529 of this chapter. If the notice of defi-
6 ciency or conciliation decision is addressed to a person outside of the
7 United States, such period shall be one hundred fifty days instead of
8 ninety days.
9 (c) Restrictions on assessment and levy. No assessment of a deficiency
10 in tax and no levy or proceeding in court for its collection shall be
11 made, begun or prosecuted, except as otherwise provided in section
12 11-534 of this chapter, until a notice of deficiency has been mailed to
13 the taxpayer, nor until the expiration of the time for filing a petition
14 with the tax appeals tribunal contesting such notice, nor, if a petition
15 with respect to the taxable year has been both served upon the commis-
16 sioner of finance and filed with the tax appeals tribunal, until the
17 decision of the tax appeals tribunal has become final. For exception in
18 the case of judicial review of the decision of the tax appeals tribunal,
19 see subdivision (c) of section 11-530 of this chapter.
20 (d) Exceptions for mathematical errors. If a mathematical error
21 appears on a return, including an overstatement of the amount paid as
22 estimated tax, the commissioner of finance shall notify the taxpayer
23 that an amount of tax in excess of that shown upon the return is due,
24 and that such excess has been assessed.
25 Such notice shall not be considered as a notice of deficiency for the
26 purposes of this section, subdivision (f) of section 11-527 of this
27 chapter, limiting credits or refunds after petition to the tax appeals
28 tribunal, or subdivision (b) of section 11-529 of this chapter, author-
29 izing the filing of a petition with the tax appeals tribunal based on a
30 notice of deficiency, nor shall such assessment or collection be prohib-
31 ited by the provisions of subdivision (c) of this section.
32 (e) Exception where change in federal or New York state taxable income
33 is not reported.
34 (1) If the taxpayer fails to comply with section 11-519 of this chap-
35 ter in not reporting a change or correction increasing or decreasing the
36 taxpayer's federal or New York state taxable income as reported on the
37 taxpayer's federal or New York state return or in not reporting a change
38 or correction which is treated in the same manner as if it were a defi-
39 ciency for federal or New York state income tax purposes or in not
40 filing an amended return or in not reporting the execution of a notice
41 of waiver described in such section, instead of the mode and time of
42 assessment provided for in subdivision (b) of this section, the commis-
43 sioner of finance may assess a deficiency based upon such changed or
44 corrected federal or New York state taxable income by mailing to the
45 taxpayer a notice of additional tax due specifying the amount of the
46 deficiency, and such deficiency, together with the interest, additions
47 to tax and penalties stated in such notice, shall be deemed assessed on
48 the date such notice is mailed unless within thirty days after the mail-
49 ing of such notice a report of the federal or New York state change or
50 correction or an amended return, where such return was required by
51 section 11-519 of this chapter, is filed accompanied by a statement
52 showing wherein such federal or New York state determination and such
53 notice of additional tax due are erroneous.
54 (2) Such notice shall not be considered as a notice of deficiency for
55 the purposes of this section, subdivision (f) of section 11-527 of this
56 chapter, limiting credits or refunds after petition to the tax appeals
S. 8578 488
1 tribunal, or subdivision (b) of section 11-529 of this chapter, author-
2 izing the filing of a petition with the tax appeals tribunal based on a
3 notice of deficiency, nor shall such assessment or collection thereof be
4 prohibited by the provisions of subdivision (c) of this section.
5 (3) If the taxpayer is deceased or under a legal disability, a notice
6 of additional tax due may be mailed to his or her last known address in
7 or out of the city, unless the commissioner of finance has received
8 notice of the existence of a fiduciary relationship with respect to the
9 taxpayer.
10 (f) Waiver of restrictions. The taxpayer shall at any time, whether or
11 not a notice of deficiency has been issued, have the right to waive the
12 restrictions on assessment and collection of the whole or any part of
13 the deficiency by a signed notice in writing filed with the commissioner
14 of finance.
15 (g) Deficiency defined. For purposes of this chapter, a deficiency
16 means the amount of the tax imposed by this chapter, less (i) the amount
17 shown as the tax upon the taxpayer's return, whether the return was made
18 or the tax computed by the taxpayer or by the commissioner of finance,
19 and less, (ii) the amounts previously assessed, or collected without
20 assessment, as a deficiency and plus (iii) the amount of any rebates.
21 For the purpose of this definition, the tax imposed by this chapter and
22 the tax shown on the return shall both be determined without regard to
23 payments on account of estimated tax; and a rebate means so much of an
24 abatement, credit, refund or other repayment, whether or not erroneous,
25 made on the ground that the amounts entering into the definition of a
26 deficiency showed a balance in favor of the taxpayer.
27 (h) Exception where change or correction of sales and compensating use
28 tax liability is not reported. (1) If a taxpayer fails to comply with
29 section 11-519.1 of this chapter in not reporting a change or correction
30 of his or her sales and compensating use tax liability or in not filing
31 a copy of an amended return or report relating to his or her sales and
32 compensating use tax liability, instead of the mode and time of assess-
33 ment provided for in subdivision (b) of this section, the commissioner
34 of finance may assess a deficiency based upon such changed or corrected
35 sales and compensating use tax liability, as same relates to credits
36 claimed under this chapter by mailing to the taxpayer a notice of addi-
37 tional tax due specifying the amount of the deficiency, and such defi-
38 ciency, together with the interest, additions to tax and penalties stat-
39 ed in such notice, shall be deemed assessed on the date such notice is
40 mailed unless within thirty days after the mailing of such notice a
41 report of the state change or correction or a copy of an amended return
42 or report, where such copy was required by section 11-519.1 of this
43 chapter, is filed accompanied by a statement showing where such state
44 determination and such notice of additional tax due are erroneous.
45 (2) Such notice shall not be considered as a notice of deficiency for
46 the purposes of this section, subdivision (f) of section 11-527 of this
47 chapter, limiting credits or refunds after petition to the tax appeals
48 tribunal, or subdivision (b) of section 11-529 of this chapter, author-
49 izing the filing of a petition with the tax appeals tribunal based on a
50 notice of deficiency, nor shall such assessment or the collection there-
51 of be prohibited by the provisions of subdivision (c) of this section.
52 (3) If the taxpayer is deceased or under a legal disability, a notice
53 of additional tax due may be mailed to his or her last known address in
54 or out of the city, and such notice shall be sufficient for purposes of
55 this chapter. If the commissioner of finance has received notice that a
S. 8578 489
1 person is acting for the taxpayer in a fiduciary capacity, a copy of
2 such notice shall also be mailed to the fiduciary named in such notice.
3 § 11-522 Assessment. (a) Assessment date. The amount of tax which a
4 return shows to be due, or the amount of tax which a return would have
5 shown to be due but for a mathematical error, shall be deemed to be
6 assessed on the date of filing of the return, including any amended
7 return showing an increase of tax. In the case of a return properly
8 filed without computation of tax, the tax computed by the commissioner
9 of finance shall be deemed to be assessed on the date on which payment
10 is due. If a notice of deficiency has been mailed, the amount of the
11 deficiency shall be deemed to be assessed on the date specified in
12 subdivision (b) of section 11-521 of this chapter if no petition is both
13 served on the commissioner of finance and filed with the tax appeals
14 tribunal, or if a petition is filed, then upon the date when a decision
15 of the tax appeals tribunal establishing the amount of the deficiency
16 becomes final.
17 If an amended return or report filed pursuant to section 11-519 of
18 this chapter concedes the accuracy of a federal or New York state
19 adjustment, change or correction, any deficiency in tax under this chap-
20 ter resulting therefrom shall be deemed to be assessed on the date of
21 filing such report or amended return, and such assessment shall be time-
22 ly notwithstanding section 11-523 of this chapter.
23 If a report or amended return or report filed pursuant to section
24 11-519.1 of this chapter concedes the accuracy of a state change or
25 correction of sales and compensating use tax liability, any deficiency
26 in tax under this chapter resulting therefrom shall be deemed assessed
27 on the date of filing such report, and such assessment shall be timely
28 notwithstanding section 11-523 of this chapter.
29 If a notice of additional tax due, as prescribed in subdivision (e) of
30 section 11-521 of this chapter has been mailed, the amount of the defi-
31 ciency shall be deemed to be assessed on the date specified in such
32 subdivision unless within thirty days after the mailing of such notice a
33 report of the federal or New York state change or correction or an
34 amended return, where such return was required by section 11-519 of this
35 chapter is filed accompanied by a statement showing wherein such federal
36 or New York state determination and such notice of additional tax due
37 are erroneous.
38 If a notice of additional tax due, as prescribed in subdivision (h) of
39 section 11-521 of this chapter, has been mailed, the amount of the defi-
40 ciency shall be deemed to be assessed on the date specified in such
41 subdivision unless within thirty days after the mailing of such notice a
42 report of the state change or correction, or a copy of an amended return
43 or report, where such copy was required by section 11-519.1 of this
44 chapter, is filed accompanied by a statement showing wherein such state
45 determination and such notice of additional tax due are erroneous.
46 Any amount paid as a tax or in respect of a tax, other than amounts
47 paid as estimated income tax, shall be deemed to be assessed upon the
48 date of receipt of payment, notwithstanding any other provisions.
49 (b) Other assessment powers. If the mode or time for the assessment of
50 any tax under this chapter, including interest, additions to tax and
51 assessable penalties, is not otherwise provided for, the commissioner of
52 finance may establish the same by regulations.
53 (c) Estimated income tax. No unpaid amount of estimated tax under
54 section one hundred sixteen shall be assessed.
55 (d) Supplemental assessment. The commissioner of finance may, at any
56 time within the period prescribed for assessment, make a supplemental
S. 8578 490
1 assessment, subject to the provisions of section 11-521 of this chapter
2 where applicable, whenever it is ascertained that any assessment is
3 imperfect or incomplete in any material respect.
4 (e) Cross-reference. For assessment in case of jeopardy, see section
5 11-534 of this chapter.
6 § 11-523 Limitations on assessment. (a) General. Except as otherwise
7 provided in this section, any tax under this chapter shall be assessed
8 within three years after the return was filed, whether or not such
9 return was filed on or after the date prescribed.
10 (b) Time return deemed filed. For purposes of this section a return
11 of tax filed before the last day prescribed by law or by regulations
12 promulgated pursuant to law for the filing thereof, shall be deemed to
13 be filed on such last day.
14 (c) Exceptions. (1) Assessment at any time. The tax may be assessed
15 at any time if:
16 (A) no return is filed,
17 (B) a false or fraudulent return is filed with intent to evade tax,
18 (C) the taxpayer fails to comply with section 11-519 of this chapter
19 in not reporting a change or correction increasing or decreasing the
20 taxpayer's federal or New York state taxable income as reported on the
21 taxpayer's federal or New York state income tax return, or the execution
22 of a notice of waiver and the changes or corrections on which it is
23 based or in not reporting a change or correction which is treated in the
24 same manner as if it were a deficiency for federal or New York state
25 income tax purposes, or in not filing an amended return, or
26 (D) the taxpayer fails to file a report or amended return or report
27 required under section 11-519.1 of this chapter, in respect of a change
28 or correction of sales and compensating use tax liability, relating to
29 the purchase or use of items for which a sales or compensating use tax
30 credit against the tax imposed by this chapter was claimed.
31 (2) Extension by agreement. Where, before the expiration of the time
32 prescribed in this section for the assessment of tax, both the commis-
33 sioner of finance and the taxpayer have consented in writing to its
34 assessment after such time, the tax may be assessed at any time prior to
35 the expiration of the period agreed upon. The period so agreed upon may
36 be extended by subsequent agreements in writing made before the expira-
37 tion of the period previously agreed upon.
38 (3) Report of changed or corrected federal or New York state income.
39 If the taxpayer shall, pursuant to section 11-519 of this chapter,
40 report a change or correction or file an amended return increasing or
41 decreasing federal or New York state taxable income or report the
42 execution of a notice of waiver and the changes and corrections on which
43 it is based, or a change or correction which is treated in the same
44 manner as if it were a deficiency for federal or New York state income
45 tax purposes, the assessment, if not deemed to have been made upon the
46 filing of the report or amended return, may be made at any time within
47 two years after such report or amended return was filed. The amount of
48 such assessment of tax shall not exceed the amount of the increase in
49 city tax attributable to such federal or New York state change or
50 correction. The provisions of this paragraph shall not affect the time
51 within which or the amount for which an assessment may otherwise be
52 made.
53 (4) Deficiency attributable to net operating loss carryback. If a
54 deficiency is attributable to the application to the taxpayer of a net
55 operating loss carryback, it may be assessed at any time that a defi-
56 ciency for the taxable year of the loss may be assessed.
S. 8578 491
1 (5) Recovery of erroneous refund. An erroneous refund shall be
2 considered an underpayment of tax on the date made, and an assessment of
3 a deficiency arising out of an erroneous refund may be made at any time
4 within two years from the making of the refund, except that the assess-
5 ment may be made within five years from the making of the refund if it
6 appears that any part of the refund was induced by fraud or misrepresen-
7 tation of a material fact.
8 (6) Request for prompt assessment. If a return is required for a
9 decedent or for his or her estate during the period of administration,
10 the tax shall be assessed within eighteen months after written request
11 therefor, made after the return is filed, by the executor, administrator
12 or other person representing the estate of such decedent, but not more
13 than three years after the return was filed, except as otherwise
14 provided in this subdivision and subdivision (d) of this section.
15 (7) Report on use of certain property. Under the circumstances
16 described in paragraph two of subdivision (b) of section 11-509 of this
17 chapter, the tax may be assessed within three years after the filing of
18 a return reporting that property has been used for purposes other than
19 research and development to a greater extent than originally reported.
20 (8) Report concerning waste treatment facility. Under the circum-
21 stances described in paragraph (i) of section 11-507 of this chapter,
22 the tax may be assessed within three years after the filing of the
23 return containing the information required by such paragraph.
24 (9) Report of changed or corrected sales and compensating use tax
25 liability. If the taxpayer files a report or amended return or report
26 required under section 11-519.1 of this chapter, in respect of a change
27 or correction of sales and compensating use tax liability, the assess-
28 ment, if not deemed to have been made upon the filing of the report, may
29 be made at any time within two years after such report or amended return
30 or report was filed. The amount of such assessment of tax shall not
31 exceed the amount of the increase in city tax attributable to such state
32 change or correction. The provisions of this paragraph shall not affect
33 the time within which or the amount for which an assessment may other-
34 wise be made.
35 (d) Omission of income on return. The tax may be assessed at any time
36 within six years after the return was filed if (1) a taxpayer omits from
37 his or her city unincorporated business gross income an amount properly
38 includible therein which is in excess of twenty-five per centum of the
39 amount of city unincorporated business gross income stated in the
40 return, or (2) an estate or trust omits income from its return in an
41 amount in excess of twenty-five percent of its income determined as if
42 it were an individual.
43 For purposes of this subdivision there shall not be taken into account
44 any amount which is omitted in the return if such amount is disclosed in
45 the return, or in a statement attached to the return, in a manner
46 adequate to apprise the commissioner of finance of the nature and amount
47 of such item.
48 (e) Suspension of running of period of limitation. The running of the
49 period of limitations on assessment or collection of tax or other
50 amount, or of a transferee's liability, shall, after the mailing of a
51 notice of deficiency, be suspended for the period during which the
52 commissioner of finance is prohibited under subdivision (c) of section
53 11-521 of this chapter from making the assessment or from collecting by
54 levy.
55 § 11-524 Interest on underpayment. (a) General. If any amount of tax
56 is not paid on or before the last date prescribed in this chapter for
S. 8578 492
1 payment, interest on such amount at the underpayment rate set by the
2 commissioner of finance pursuant to section 11-537 of this chapter, or,
3 if no rate is set, at the rate of seven and one-half percent per annum
4 shall be paid for the period from such last date to the date paid,
5 whether or not any extension of time for payment was granted. Interest
6 under this subdivision shall not be paid if the amount thereof is less
7 than one dollar.
8 (b) Exception as to estimated tax. This section shall not apply to
9 any failure to pay estimated tax under section 11-512 of this chapter.
10 (c) Exception for mathematical error. No interest shall be imposed on
11 any underpayment of tax due solely to mathematical error if the taxpayer
12 files a return within the time prescribed in this chapter, including any
13 extension of time, and pays the amount of underpayment within three
14 months after the due date of such return, as it may be extended.
15 (d) Suspension of interest on deficiencies. If a waiver of
16 restrictions on assessment of a deficiency has been filed by the taxpay-
17 er, and if notice and demand by the commissioner of finance for payment
18 of such deficiency is not made within thirty days after the filing of
19 such waiver, interest shall not be imposed on such deficiency for the
20 period beginning immediately after such thirtieth day and ending with
21 the date of notice and demand.
22 (e) Tax reduced by carryback. If the amount of tax for any taxable
23 year is reduced by reason of a carryback of a net operating loss, such
24 reduction in tax shall not affect the computation of interest under this
25 section for the period ending with the filing date for the taxable year
26 in which the net operating loss arises. Such filing date shall be deter-
27 mined without regard to extensions of time to file.
28 (f) Interest treated as tax. Interest under this section shall be
29 paid upon notice and demand and shall be assessed, collected and paid in
30 the same manner as tax. Any reference in this chapter to the tax
31 imposed by this chapter shall be deemed also to refer to interest
32 imposed by this section on such tax.
33 (g) Interest on penalties or additions to tax. Interest shall be
34 imposed under subdivision (a) of this section in respect of any assessa-
35 ble penalty or addition to tax only if such assessable penalty or addi-
36 tion to tax is not paid within ten days from the date of the notice and
37 demand therefor under subdivision (b) of section 11-532 of this chapter,
38 and in such case interest shall be imposed only for the period from such
39 date of the notice and demand to the date of payment.
40 (h) Payment within ten days after notice and demand. If notice and
41 demand is made for payment of any amount under subdivision (b) of
42 section 11-532 of this chapter, and if such amount is paid within ten
43 days after the date of such notice and demand, interest under this
44 section on the amount so paid shall not be imposed for the period after
45 the date of such notice and demand.
46 (i) Limitation on assessment and collection. Interest prescribed
47 under this section may be assessed and collected at any time during the
48 period within which the tax or other amount to which such interest
49 relates may be assessed and collected, respectively.
50 (j) Interest on erroneous refund. Any portion of tax or other amount
51 which has been erroneously refunded, and which is recoverable by the
52 commissioner of finance, shall bear interest at the underpayment rate
53 set by the commissioner of finance pursuant to section 11-537 of this
54 chapter, or, if no rate is set, at the rate of seven and one-half
55 percent per annum from the date of the payment of the refund, but only
S. 8578 493
1 if it appears that any part of the refund was induced by fraud or a
2 misrepresentation of a material fact.
3 (k) Satisfaction by credits. If any portion of a tax is satisfied by
4 credit of an overpayment, then no interest shall be imposed under this
5 section on the portion of the tax so satisfied for any period during
6 which, if the credit had not been made, interest would have been allow-
7 able with respect to such overpayment.
8 § 11-525 Additions to tax and civil penalties. (a) (1) Failure to
9 file tax return. (A) In case of failure to file a tax return under this
10 chapter on or before the prescribed date, determined with regard to any
11 extension of time for filing, unless it is shown that such failure is
12 due to reasonable cause and not due to willful neglect, there shall be
13 added to the amount required to be shown as tax on such return five
14 percent of the amount of such tax if the failure is for not more than
15 one month, with an additional five percent for each additional month or
16 fraction thereof during which such failure continues, not exceeding
17 twenty-five percent in the aggregate.
18 (B) In the case of a failure to file a tax return within sixty days of
19 the date prescribed for filing of such return, determined with regard to
20 any extension of time for filing, unless it is shown that such failure
21 is due to reasonable cause and not due to willful neglect, the addition
22 to tax under subparagraph (A) of this paragraph shall not be less than
23 the lesser of one hundred dollars or one hundred percent of the amount
24 required to be shown as tax on such return.
25 (C) For purposes of this paragraph, the amount of tax required to be
26 shown on the return shall be reduced by the amount of any part of the
27 tax which is paid on or before the date prescribed for payment of the
28 tax and by the amount of any credit against the tax which may be claimed
29 upon the return.
30 (2) Failure to pay tax shown on return. In case of failure to pay the
31 amounts shown as tax on any return required to be filed under this chap-
32 ter on or before the prescribed date, determined with regard to any
33 extension of time for payment, unless it is shown that such failure is
34 due to reasonable cause and not due to willful neglect, there shall be
35 added to the amount shown as tax on such return one-half of one percent
36 of the amount of such tax if the failure is not for more than one month,
37 with an additional one-half of one percent for each additional month or
38 fraction thereof during which such failure continues, not exceeding
39 twenty-five percent in the aggregate. For the purpose of computing the
40 addition for any month, the amount of tax shown on the return shall be
41 reduced by the amount of any part of the tax which is paid on or before
42 the beginning of such month and by the amount of any credit against the
43 tax which may be claimed upon the return. If the amount of tax required
44 to be shown on a return is less than the amount shown as tax on such
45 return, this paragraph shall be applied by substituting such lower
46 amount.
47 (3) Failure to pay tax required to be shown on return. In case of
48 failure to pay any amount in respect of any tax required to be shown on
49 a return required to be filed under this chapter which is not so shown,
50 including an assessment made pursuant to subdivision (a) of section
51 11-522 of this chapter, within ten days of the date of a notice and
52 demand therefor, unless it is shown that such failure is due to reason-
53 able cause and not due to willful neglect, there shall be added to the
54 amount of tax stated in such notice and demand one-half of one percent
55 of such tax if the failure is not for more than one month, with an addi-
56 tional one-half of one percent for each additional month or fraction
S. 8578 494
1 thereof during which such failure continues, not exceeding twenty-five
2 percent in the aggregate. For the purpose of computing the addition for
3 any month, the amount of tax stated in the notice and demand shall be
4 reduced by the amount of any part of the tax which is paid before the
5 beginning of such month.
6 (4) Limitations on additions. (A) With respect to any return the
7 amount of the addition under paragraph one of this subdivision shall be
8 reduced by the amount of the addition under paragraph two of this subdi-
9 vision for any month to which an addition applies under both paragraphs
10 one and two of this subdivision. In any case described in subparagraph
11 (B) of paragraph one of this subdivision, the amount of the addition
12 under such paragraph one shall not be reduced below the amount provided
13 in such subparagraph.
14 (B) With respect to any return, the maximum amount of the addition
15 permitted under paragraph three of this subdivision shall be reduced by
16 the amount of the addition under paragraph one of this subdivision,
17 determined without regard to subparagraph (B) of such paragraph one,
18 which is attributable to the tax for which the notice and demand is made
19 and which is not paid within ten days of such notice and demand.
20 (b) Deficiency due to negligence. (1) If any part of a deficiency is
21 due to negligence or intentional disregard of this chapter or rules or
22 regulations hereunder, but without intent to defraud, there shall be
23 added to the tax an amount equal to five percent of the deficiency.
24 (2) There shall be added to the tax, in addition to the amount deter-
25 mined under paragraph one of this subdivision, an amount equal to fifty
26 percent of the interest payable under subdivision (a) of section 11-524
27 with respect to the portion of the deficiency described in such para-
28 graph one which is attributable to the negligence or intentional disre-
29 gard referred to in such paragraph one, for the period beginning on the
30 last date prescribed by law for payment of such deficiency, determined
31 without regard to any extension, and ending on the date of the assess-
32 ment of the tax, or, if earlier, the date of the payment of the tax.
33 (3) If any payment is shown on a return made by a payor with respect
34 to dividends, patronage dividends and interest under subsection (a) of
35 section six thousand forty-two, subsection (a) of section six thousand
36 forty-four or subsection (a) of section six thousand forty-nine of the
37 internal revenue code of nineteen hundred fifty-four, respectively, and
38 the payee fails to include any portion of such payment in unincorporated
39 business gross income, as that term is defined in section 11-506, any
40 portion of a deficiency attributable to such failure shall be treated,
41 for purposes of this subdivision, as due to negligence in the absence of
42 clear and convincing evidence to the contrary. If any addition to tax is
43 imposed under this subdivision by reason of this paragraph, the amount
44 of the addition to tax imposed by paragraph one of this subdivision
45 shall be five percent of the portion of the deficiency which is attrib-
46 utable to the failure described in this paragraph.
47 (c) Failure to file declaration or underpayment of estimated tax. If
48 any taxpayer fails to file a declaration of estimated tax or fails to
49 pay all or any part of an installment of estimated tax, the taxpayer
50 shall be deemed to have made an underpayment of estimated tax. There
51 shall be added to the tax for the taxable year an amount at the under-
52 payment rate set by the commissioner of finance pursuant to section
53 11-537 of this chapter, or, if no rate is set, at the rate of seven and
54 one-half percent per annum upon the amount of the underpayment for the
55 period of the underpayment but not beyond the fifteenth day of the
56 fourth month following the close of the taxable year. The amount of the
S. 8578 495
1 underpayment shall be the excess of the amount of the installment which
2 would be required to be paid if the estimated tax were equal to ninety
3 percent of the tax shown on the return for the taxable year, or if no
4 return was filed, ninety percent of the tax for such year, over the
5 amount, if any, of the installment paid on or before the last day
6 prescribed for such payment. No underpayment shall be deemed to exist
7 with respect to a declaration or installment otherwise due on or after
8 the taxpayer's death. In any case in which there would be no underpay-
9 ment if this subdivision were applied by substituting "eighty percent"
10 for "ninety percent" where it appears in this subdivision, the addition
11 to tax under this subdivision shall be equal to seventy-five percent of
12 the amount otherwise determined under this subdivision.
13 (d) Exception to addition for underpayment of estimated tax. The addi-
14 tion to tax under subdivision (c) of this section with respect to any
15 underpayment of any installment shall not be imposed if the total amount
16 of all payments of estimated tax made on or before the last date
17 prescribed for the payment of such installment equals or exceeds which-
18 ever of the following is the lesser:
19 (1) The amount which would have been required to be paid on or before
20 such date if the estimated tax were whichever of the following is the
21 least:
22 (A) The tax shown on the return of the taxpayer for the preceding
23 taxable year, if a return showing a liability for tax was filed by the
24 taxpayer for the preceding taxable year and such preceding year was a
25 taxable year of twelve months, or
26 (B) An amount equal to the tax computed, at the rates applicable to
27 the taxable year, but otherwise on the basis of the facts shown on the
28 taxpayer's return for, and the law applicable to, the preceding taxable
29 year, or
30 (C) An amount equal to ninety percent of the tax for the taxable year
31 computed by placing on an annualized basis the unincorporated business
32 taxable income for the months in the taxable year ending before the
33 month in which the installment is required to be paid. For purposes of
34 this subparagraph, the unincorporated business taxable income shall be
35 placed on an annualized basis by:
36 (i) multiplying by twelve, or, in the case of a taxable year of less
37 than twelve months, the number of months in the taxable year, the unin-
38 corporated business taxable income for the months in the taxable year
39 ending before the month in which the installment is required to be paid,
40 and
41 (ii) dividing the resulting amount by the number of months in the
42 taxable year ending before the month in which such installment date
43 falls, or
44 (D)(i) If the base period percentage for any six consecutive months of
45 the taxable year equals or exceeds seventy percent, an amount equal to
46 ninety percent of the tax determined in the following manner:
47 (I) take the unincorporated business taxable income for all months
48 during the taxable year preceding the filing month,
49 (II) divide such amount by the base period percentage for all months
50 during the taxable year preceding the filing month,
51 (III) determine the tax on the amounts determined under subclause (II)
52 of this clause, and
53 (IV) multiply the tax determined under subclause (III) of this clause
54 by the base period percentage for the filing month and all months during
55 the taxable year preceding the filing month.
56 (ii) For purposes of clause (i) of this subparagraph:
S. 8578 496
1 (I) the base period percentage for any period of months shall be the
2 average percent which the unincorporated business taxable income for the
3 corresponding months in each of the three preceding years bears to the
4 unincorporated business taxable income for the three preceding taxable
5 years. The commissioner of finance may by regulations provide for the
6 determination of the base period percentage in the case of new unincor-
7 porated businesses and other similar circumstances, and
8 (II) the term "filing month" means the month in which the installment
9 is required to be paid;
10 (2) An amount equal to ninety percent of the tax computed, at the
11 rates applicable to the taxable year, on the basis of the actual unin-
12 corporated business taxable income for the months in the taxable year
13 ending before the month in which the installment is required to be paid.
14 (e)(1) Except as provided in paragraph two of this subdivision,
15 subparagraphs (A) and (B) of paragraph one of subdivision (d) of this
16 section shall not apply in the case of any taxpayer which had unincorpo-
17 rated business taxable income, or the portion thereof allocated within
18 the city, of one million dollars or more for any taxable year during the
19 three taxable years immediately preceding the taxable year involved.
20 (2) The amount treated as the estimated tax under subparagraphs (A)
21 and (B) of paragraph one of subdivision (d) of this section shall in no
22 event be less than seventy-five percent of the tax shown on the return
23 for the taxable year beginning in nineteen hundred eighty-three or, if
24 no return was filed, seventy-five percent of the tax for such year.
25 (f) Deficiency due to fraud. (1) If any part of a deficiency is due to
26 fraud, there shall be added to the tax an amount equal to two times of
27 the deficiency.
28 (2) The addition to tax under this subdivision shall be in lieu of any
29 other addition to tax imposed by subdivision (a) or (b) of this section.
30 (g) Additional penalty. Any taxpayer who with fraudulent intent shall
31 fail to pay any tax, or to make, render, sign or certify any return or
32 declaration of estimated tax, or to supply any information within the
33 time required by or under this chapter shall be liable to a penalty of
34 not more than one thousand dollars, in addition to any other amounts
35 required under this chapter, to be imposed, assessed and collected by
36 the commissioner of finance. The commissioner of finance shall have the
37 power, in his or her discretion, to waive, reduce or compromise any
38 penalty under this subdivision.
39 (h) Additions treated as tax. The additions to tax and penalties
40 provided by this section shall be paid upon notice and demand and shall
41 be assessed, collected and paid in the same manner as taxes, and any
42 reference in this chapter to tax or tax imposed by this chapter, shall
43 be deemed also to refer to the additions to tax and penalties provided
44 by this section. For purposes of section 11-521, this subdivision shall
45 not apply to:
46 (1) any addition to tax under subdivision (a) of this section except
47 as to that portion attributable to a deficiency;
48 (2) any addition to tax under subdivision (c) of this section; and
49 (3) any additional penalties under subdivisions (g) and (k) of this
50 section.
51 (i) Determination of deficiency. For purposes of subdivisions (b) and
52 (c) of this section, the amounts shown as the tax by the taxpayer upon
53 his or her return shall be taken into account in determining the amount
54 of the deficiency only if such return was filed on or before the last
55 day prescribed for the filing of such return, determined with regard to
56 any extension of time for such filing.
S. 8578 497
1 (j) Substantial understatement of liability. If there is a substantial
2 understatement of tax for any taxable year, there shall be added to the
3 tax an amount equal to ten percent of the amount of any underpayment
4 attributable to such understatement. For purposes of this subdivision,
5 there is a substantial understatement of tax for any taxable year if the
6 amount of the understatement for the taxable year exceeds the greater of
7 ten percent of the tax required to be shown on the return for the taxa-
8 ble year, or five thousand dollars. For purposes of the this subdivi-
9 sion, the term "understatement" means the excess of the amount of the
10 tax required to be shown on the return for the taxable year, over the
11 amount of the tax imposed which is shown on the return, reduced by any
12 rebate, within the meaning of subdivision (g) of section 11-521 of this
13 chapter. The amount of such understatement shall be reduced by that
14 portion of the understatement which is attributable to the tax treatment
15 of any item by the taxpayer if there is or was substantial authority for
16 such treatment, or any item with respect to which the relevant facts
17 affecting the item's tax treatment are adequately disclosed in the
18 return or in a statement attached to the return. The commissioner of
19 finance may waive all or any part of the addition to tax provided by
20 this subdivision on a showing by the taxpayer that there was reasonable
21 cause for the understatement, or part thereof, and that the taxpayer
22 acted in good faith.
23 (k) Aiding or assisting in the giving of fraudulent returns, reports,
24 statements or other documents. (1) Any person who, with the intent that
25 tax be evaded, shall, for a fee or other compensation or as an incident
26 to the performance of other services for which such person receives
27 compensation, aid or assist in, or procure, counsel, or advise the prep-
28 aration or presentation under, or in connection with any matter arising
29 under this chapter of any return, report, declaration, statement or
30 other document which is fraudulent or false as to any material matter,
31 or supply any false or fraudulent information, whether or not such
32 falsity or fraud is with the knowledge or consent of the person author-
33 ized or required to present such return, report, declaration, statement
34 or other document shall pay a penalty not exceeding ten thousand
35 dollars.
36 (2) For purposes of paragraph one of this subdivision, the term
37 "procures" includes ordering, or otherwise causing, a subordinate to do
38 an act, and knowing of, and not attempting to prevent, participation by
39 a subordinate in an act. The term "subordinate" means any other person,
40 whether or not a member, employee, or agent of the taxpayer involved,
41 over whose activities the person has direction, supervision, or control.
42 (3) For purposes of paragraph one of this subdivision, a person
43 furnishing typing, reproducing, or other mechanical assistance with
44 respect to a document shall not be treated as having aided or assisted
45 in the preparation of such document by reason of such assistance.
46 (4) The penalty imposed by this subdivision shall be in addition to
47 any other penalty provided by law.
48 (l) False or fraudulent document penalty. Any taxpayer that submits a
49 false or fraudulent document to the department shall be subject to a
50 penalty of one hundred dollars per document submitted, or five hundred
51 dollars per tax return submitted. Such penalty shall be in addition to
52 any other penalty or addition provided by law.
53 § 11-526 Overpayment. (a) General. The commissioner of finance,
54 within the applicable period of limitations, may credit an overpayment
55 of tax and interest on such overpayment against any liability in respect
56 of any tax imposed by this title, on the person who made overpayment,
S. 8578 498
1 and the balance shall be refunded. Such credit of an overpayment shall
2 be applied before such overpayment, or any portion thereof, is paid to
3 the state commissioner of taxation and finance pursuant to section one
4 hundred seventy-one-m of the tax law.
5 (b) Credits against estimated tax. The commissioner of finance may
6 prescribe regulations providing for the crediting against the estimated
7 tax for any taxable year of the amount determined to be an overpayment
8 of the tax for a preceding taxable year. If any overpayment of tax is
9 so claimed as a credit against estimated tax for the succeeding taxable
10 year, such amount shall be considered as a payment of the tax for the
11 succeeding taxable year, whether or not claimed as a credit in the
12 declaration of estimated tax for such succeeding taxable year, and no
13 claim for credit or refund of such overpayment shall be allowed for the
14 taxable year for which the overpayment arises.
15 (c) Rule where no tax liability. If there is no tax liability for a
16 period in respect of which an amount is paid as tax, such amount shall
17 be considered an overpayment.
18 (d) Assessment and collection after limitation period. If any amount
19 of income tax is assessed or collected after the expiration of the peri-
20 od of limitations properly applicable thereto, such amount shall be
21 considered an overpayment.
22 (e) Notwithstanding any provision of law in article fifty-two of the
23 civil practice law and rules to the contrary, the procedures for the
24 enforcement of money judgments shall not apply to the department of
25 finance, or to any officer or employee of the department of finance, as
26 a garnishee, with respect to any amount of money to be refunded or cred-
27 ited to a taxpayer under this chapter.
28 § 11-527 Limitation on credit or refund. (a) General. Claim for credit
29 or refund of an overpayment of tax shall be filed by the taxpayer within
30 three years from the time the return was filed or two years from the
31 time the tax was paid, whichever of such periods expires the later, or
32 if no return was filed, within two years from the time the tax was paid.
33 If the claim is filed within the three year period, the amount of the
34 credit or refund shall not exceed the portion of the tax paid within the
35 three years immediately preceding the filing of the claim plus the peri-
36 od of any extension of time for filing the return. If the claim is not
37 filed within the three year period, but is filed within the two year
38 period, the amount of the credit or refund shall not exceed the portion
39 of the tax paid during the two years immediately preceding the filing of
40 the claim. Except as otherwise provided in this section, if no claim is
41 filed, the amount of a credit or refund shall not exceed the amount
42 which would be allowable if a claim had been filed on the date the cred-
43 it or refund is allowed.
44 (b) Extension of time by agreement. If an agreement under the
45 provisions of paragraph two of subdivision (c) of section 11-523 of this
46 chapter, extending the period for assessment of income tax, is made
47 within the period prescribed in subdivision (a) of this section for the
48 filing of a claim for credit or refund the period for filing a claim for
49 credit or refund, or for making credit or refund if no claims filed,
50 shall not expire prior to six months after the expiration of the period
51 within which an assessment may be made pursuant to the agreement or any
52 extension thereof. The amount of such credit or refund shall not exceed
53 the portion of the tax paid after the execution of the agreement and
54 before the filing of the claim or the making of the credit or refund, as
55 the case may be, plus the portion of the tax paid within the period
S. 8578 499
1 which would be applicable under subdivision (a) of this section if a
2 claim had been filed on the date the agreement was executed.
3 (c) Notice of change or correction of federal or New York state taxa-
4 ble income. If a taxpayer is required by section 11-519 of this chapter
5 to report a change or correction in federal or New York state taxable
6 income reported on the taxpayer's federal or New York state income tax
7 return, or to report a change or correction which is treated in the same
8 manner as if it were an overpayment for federal or New York state income
9 tax purposes, or to file an amended return with the commissioner of
10 finance, claim for credit or refund of any resulting overpayment of tax
11 shall be filed by the taxpayer within two years from the time the notice
12 of such change or correction or such amended return was required to be
13 filed with the commissioner of finance. If the report or amended return
14 required by section 11-519 of this chapter is not filed within the nine-
15 ty day period therein specified, no interest shall be payable on any
16 claim for credit or refund of the overpayment attributable to the feder-
17 al or New York state change or correction. The amount of such credit or
18 refund shall not exceed the amount of the reduction in tax attributable
19 to such federal or New York state change, correction or items amended on
20 the taxpayer's amended federal or New York state income tax return. This
21 subdivision shall not affect the time within which or the amount for
22 which a claim for credit or refund may be filed apart from this subdivi-
23 sion.
24 (d) Overpayment attributable to net operating loss carryback. A claim
25 for credit or refund of so much of an overpayment as is attributable to
26 the application to the taxpayer of a net operating loss carryback shall
27 be filed within three years from the time the return was due for the
28 taxable year of the loss, or within the period prescribed in subdivision
29 (b) of this section in respect of such taxable year, or within the peri-
30 od prescribed in subdivision (c) of this section, where applicable in
31 respect of the taxable year to which the net operating loss is carried
32 back, whichever expires the latest.
33 (e) Failure to file claim within prescribed period. No credit or
34 refund shall be allowed or made, except as provided in subdivision (f)
35 of this section or subdivision (d) of section 11-530 of this chapter
36 after the expiration of the applicable period of limitation specified in
37 this chapter unless a claim for credit or refund is filed by the taxpay-
38 er within such period. Any later credit shall be void and any later
39 refund erroneous. No period of limitations specified in any other law
40 shall apply to the recovery by a taxpayer of moneys paid in respect of
41 taxes under this chapter.
42 (f) Effect of petition to tax appeals tribunal. If a notice of defi-
43 ciency for a taxable year has been mailed to the taxpayer under section
44 11-521 of this chapter and if the taxpayer files a timely petition with
45 the tax appeals tribunal under section 11-529 of this chapter, the tax
46 appeals tribunal may determine that the taxpayer has made an overpayment
47 for such year, whether or not it also determines a deficiency for such
48 year. No separate claim for credit or refund for such year shall be
49 filed, and no credit or refund for such year shall be allowed or made,
50 except:
51 (1) as to overpayments determined by a decision of the tax appeals
52 tribunal which has become final;
53 (2) as to any amount collected in excess of an amount computed in
54 accordance with the decision of the tax appeals tribunal which has
55 become final;
S. 8578 500
1 (3) as to any amount collected after the period of limitation upon the
2 making of levy for collection has expired; and
3 (4) as to any amount claimed as a result of a change or correction
4 described in subdivision (c) of this section.
5 (g) Limit on amount of credit or refund. The amount of overpayment
6 determined under subdivision (f) of this section shall, when the deci-
7 sion of the tax appeals tribunal has become final, be credited or
8 refunded in accordance with subdivision (a) of section 11-526 of this
9 chapter and shall not exceed the amount of tax which the tax appeals
10 tribunal determines as part of its decision was paid:
11 (1) after the mailing of the notice of deficiency, or
12 (2) within the period which would be applicable under subdivision (a),
13 (b) or (c) of this section, if on the date of the mailing of the notice
14 of deficiency a claim has been filed, whether or not filed, stating the
15 grounds upon which the tax appeals tribunal finds that there is an over-
16 payment.
17 (h) Early return. For purposes of this section, any return filed
18 before the last day prescribed for the filing thereof shall be consid-
19 ered as filed on such last day, determined without regard to any exten-
20 sion of time granted the taxpayer.
21 (i) Prepaid tax. For purposes of this section, any tax paid by the
22 taxpayer before the last day prescribed for its payment and any amount
23 paid by the taxpayer as estimated tax for a taxable year shall be deemed
24 to have been paid by the taxpayer on the fifteenth day of the fourth
25 month following the close of his or her taxable year with respect to
26 which such amount constitutes a credit or payment, except that for taxa-
27 ble years beginning on or after January first, two thousand sixteen, in
28 the case of a taxpayer classified as a partnership for federal income
29 tax purposes, such amount shall be deemed to have been paid on the
30 fifteenth day of the third month following the close of his or her taxa-
31 ble year with respect to which such amount constitutes a credit or
32 payment.
33 (j) Cross reference. For provision barring refund of overpayment cred-
34 ited against tax of a succeeding year, see subdivision (d) of section
35 11-526 of this chapter.
36 (k) Notice of change or correction of sales and compensating use tax
37 liability. If a taxpayer is required by section 11-519.1 of this chapter
38 to file a report or amended return or report in respect of a change or
39 correction of his or her sales and compensating use tax liability, claim
40 for credit or refund of any resulting overpayment of tax shall be filed
41 by the taxpayer within two years from the time such report or amended
42 return or report was required to be filed with the commissioner of
43 finance. The amount of such credit or refund shall be computed without
44 change of the allocation of income upon which the taxpayer's return, or
45 any additional assessment, was based, and shall not exceed the amount of
46 the reduction in tax attributable to such change or correction of sales
47 and compensating use tax liability.
48 This subdivision shall not affect the time within which or the amount
49 for which a claim for credit or refund may be filed apart from this
50 subdivision.
51 § 11-528 Interest on overpayment. (a) General. Notwithstanding the
52 provisions of section three-a of the general municipal law, interest
53 shall be allowed and paid as follows at the overpayment rate set by the
54 commissioner of finance pursuant to section 11-537 of this chapter, or,
55 if no rate is set, at the rate of six percent per annum upon any over-
56 payment in respect of the tax imposed by this chapter:
S. 8578 501
1 (1) from the date of the overpayment to the due date of an amount
2 against which a credit is taken; or
3 (2) from the date of the overpayment to a date, to be determined by
4 the commissioner of finance, preceding the date of a refund check by not
5 more than thirty days, whether or not such refund check is accepted by
6 the taxpayer after tender of such check to the taxpayer. The acceptance
7 of such check shall be without prejudice to any right of the taxpayer to
8 claim any additional overpayment and interest thereon.
9 (3) Late and amended returns and claims for credit or refund.
10 Notwithstanding paragraph one or two of this subdivision, in the case of
11 an overpayment claimed on a return of tax which is filed after the last
12 date prescribed for filing such return, determined with regard to exten-
13 sions, or claimed on an amended return of tax or claimed on a claim, for
14 credit or refund, no interest shall be allowed or paid for any day
15 before the date on which such return or claim is filed.
16 (4) Interest on certain refunds. To the extent provided for in regu-
17 lations promulgated by the commissioner of finance, if an item of
18 income, gain, loss, deduction or credit is changed from the taxable year
19 or period in which it is reported to the taxable year or period in which
20 it belongs and the change results in an underpayment in a taxable year
21 or period and an overpayment in some other taxable year or period, the
22 provisions of paragraph three of this subdivision with respect to an
23 overpayment shall not be applicable to the extent that the limitation in
24 such paragraph on the right to interest would result in a taxpayer not
25 being allowed interest for a length of time with respect to an overpay-
26 ment while being required to pay interest on an equivalent amount of the
27 related underpayment. However, this paragraph shall not be construed as
28 limiting or mitigating the effect of any statute of limitations or any
29 other provisions of law relating to the authority of such commissioner
30 to issue a notice of deficiency or to allow a credit or refund of an
31 overpayment.
32 (5) Amounts of less than one dollar. No interest shall be allowed or
33 paid if the amount thereof is less than one dollar.
34 (b) Advance payment of tax and payment of estimated tax. The
35 provisions of subdivisions (h) and (i) of section 11-527 of this chapter
36 applicable in determining the date of payment of tax for purposes of
37 determining the period of limitations on credit or refund, shall be
38 applicable in determining the date of payment for purposes of this
39 section.
40 (c) Refund within three months of claim for overpayment. If any over-
41 payment of tax imposed by this chapter is credited or refunded within
42 three months after the last date prescribed, or permitted by extension
43 of time, for filing the return of such tax on which such overpayment was
44 claimed or within three months after such return was filed, whichever is
45 later, or within three months after an amended return was filed claiming
46 such overpayment or within three months after a claim for credit or
47 refund was filed on which such overpayment was claimed, no interest
48 shall be allowed under this section on any such overpayment. For
49 purposes of this subdivision, any amended return or claim for credit or
50 refund filed before the last day prescribed, or permitted by extension
51 of time, for the filing of the return of tax for such year shall be
52 considered as filed on such last day.
53 (d) Refund of tax caused by carryback. For purposes of this section,
54 if any overpayment of tax imposed by this chapter results from a carry-
55 back of a net operating loss, such overpayment shall be deemed not to
56 have been made prior to the filing date for the taxable year in which
S. 8578 502
1 such net operating loss arises. Such filing date shall be determined
2 without regard to extensions of time to file. For purposes of subdivi-
3 sion (c) of this section any overpayment described herein shall be
4 treated as an overpayment for the loss year and such subdivision shall
5 be applied with respect to such overpayment by treating the return for
6 the loss year as not filed before claim for such overpayment is filed.
7 The term "loss year" means the taxable year in which such loss arises.
8 (e) No interest until return in processible form. (1) For purposes of
9 subdivisions (a) and (c) of this section, a return shall not be treated
10 as filed until it is filed in processible form.
11 (2) For purposes of paragraph one of this subdivision, a return is in
12 a processible form if:
13 (A) such return is filed on a permitted form, and
14 (B) such return contains:
15 (i) the taxpayer's name, address, and identifying number and the
16 required signatures, and
17 (ii) sufficient required information, whether on the return or on
18 required attachments, to permit the mathematical verification of tax
19 liability shown on the return.
20 (f) Cross-reference. For provision with respect to interest after
21 failure to file notice of federal or New York state change under section
22 11-519 of this chapter, see subdivision (c) of section 11-527 of this
23 chapter.
24 § 11-529 Petition to tax appeals tribunal. (a) General. The form of a
25 petition to the tax appeals tribunal, and further proceedings before the
26 tax appeals tribunal in any case initiated by the filing of a petition,
27 shall be governed by such rules as the tax appeals tribunal shall
28 prescribe. No petition shall be denied in whole or in part without
29 opportunity for a hearing on reasonable prior notice. Such hearing and
30 any appeal to the tribunal sitting en banc from the decision rendered in
31 such hearing shall be conducted in the manner and subject to the
32 requirements prescribed by the tax appeals tribunal pursuant to sections
33 one hundred sixty-eight through one hundred seventy-two of the charter
34 of the preceding municipality as it existed January first, nineteen
35 hundred ninety-four. A decision of the tax appeals tribunal shall be
36 rendered, and notice thereof shall be given, in the manner provided by
37 section one hundred seventy-one of the charter of the preceding munici-
38 pality.
39 (b) Petition for redetermination of a deficiency. Within ninety days,
40 or one hundred fifty days if the notice is addressed to a person outside
41 of the United States, after the mailing of the notice of deficiency
42 authorized by section 11-521 of this chapter, or if the commissioner of
43 finance has established a conciliation procedure pursuant to section
44 11-124 of this title and the taxpayer has requested a conciliation
45 conference in accordance therewith, within ninety days from the mailing
46 of the conciliation decision or the date of the commissioner's confirma-
47 tion of the discontinuance of the conciliation proceeding, the taxpayer
48 may file a petition with the tax appeals tribunal for a redetermination
49 of the deficiency. Such petition may also assert a claim for refund for
50 the same taxable year or years, subject to the limitations of subdivi-
51 sion (g) of section 11-527 of this chapter.
52 (c) Petition for refund. A taxpayer may file a petition with the tax
53 appeals tribunal for the amounts asserted in a claim for refund if:
54 (1) the taxpayer has filed a timely claim for refund with the commis-
55 sioner of finance,
S. 8578 503
1 (2) the taxpayer has not previously filed with the tax appeals tribu-
2 nal a timely petition under subdivision (b) of this section for the same
3 taxable year unless the petition under this subdivision relates to a
4 separate claim for credit or refund properly filed under subdivision (f)
5 of section 11-527 of this chapter, and
6 (3) either: (A) six months have expired since the claim was filed, or
7 (B) the commissioner of finance has mailed to the taxpayer, by regis-
8 tered or certified mail, a notice of disallowance of such claim in whole
9 or in part. No petition under this subdivision shall be filed more than
10 two years after the date of mailing of a notice of disallowance, unless
11 prior to the expiration of such two year period it has been extended by
12 written agreement between the taxpayer and the commissioner of finance.
13 If a taxpayer files a written waiver of the requirement that he or she
14 be mailed a notice of disallowance, the two year period prescribed by
15 this subdivision for filing a petition for refund shall begin on the
16 date such waiver is filed.
17 (4) If the commissioner of finance has established a conciliation
18 procedure pursuant to section 11-124 of this title, a taxpayer who is
19 eligible to file a petition for refund with the tax appeals tribunal
20 pursuant to this subdivision may request a conciliation conference prior
21 to filing such petition, provided the request is made within the time
22 prescribed for filing the petition. Notwithstanding anything in this
23 subdivision to the contrary, if the taxpayer has requested a concil-
24 iation conference in accordance with the procedure established pursuant
25 to section 11-124 of this title, a petition for refund may be filed no
26 later than ninety days from the mailing of the conciliation decision or
27 the date of the commissioner's confirmation of the discontinuance of the
28 conciliation proceeding.
29 (d) Assertion of deficiency after filing petition. (1) Petition for
30 redetermination of deficiency. If a taxpayer files with the tax appeals
31 tribunal a petition for redetermination of a deficiency, the tax appeals
32 tribunal shall have power to determine a greater deficiency than
33 asserted in the notice of deficiency and to determine if there should be
34 assessed any addition to tax or penalty provided in section 11-525 of
35 this chapter, if claim therefor is asserted at or before the hearing
36 under the rules of the tax appeals tribunal.
37 (2) Petition for refund. If the taxpayer files with the tax appeals
38 tribunal a petition for credit or refund for a taxable year, the tax
39 appeals tribunal may:
40 (A) determine a deficiency for such year as to any amount of deficien-
41 cy asserted at or before the hearing under rules of the tax appeals
42 tribunal, and within the period in which an assessment would be timely
43 under section 11-523 of this chapter, or
44 (B) deny so much of the amount for which credit or refund is sought in
45 the petition, as is offset by other issues pertaining to the same taxa-
46 ble year which are asserted at or before the hearing under rules of the
47 tax appeals tribunal.
48 (3) Opportunity to respond. A taxpayer shall be given a reasonable
49 opportunity to respond to any matters asserted by the commissioner of
50 finance under this subdivision.
51 (4) Restriction on further notices of deficiency. If the taxpayer
52 files a petition with the tax appeals tribunal under this section, no
53 notice of deficiency under section 11-521 of this chapter may thereafter
54 be issued by the commissioner of finance for the same taxable year,
55 except in case of fraud or with respect to a change or correction in
56 federal or New York state taxable income required to be reported under
S. 8578 504
1 section 11-519 of this chapter or with respect to a state change or
2 correction of sales and compensating use tax liability to be reported
3 under section 11-519.1 of this chapter.
4 (e) Burden of proof. In any case before the tax appeals tribunal under
5 this chapter, the burden of proof shall be upon the petitioner except
6 for the following issues, as to which the burden of proof shall be upon
7 the commissioner of finance:
8 (1) whether the petitioner has been guilty of fraud with intent to
9 evade tax;
10 (2) whether the petitioner is liable as the transferee of property of
11 a taxpayer, but not to show that the taxpayer was liable for the tax;
12 (3) whether the petitioner is liable for any increase in a deficiency
13 where such increase is asserted initially after a notice of deficiency
14 was mailed and a petition under this section filed, unless such increase
15 in deficiency is the result of a change or correction of federal or New
16 York state taxable income required to be reported under section 11-519
17 of this chapter, and of which change or correction the commissioner of
18 finance had no notice at the time he or she mailed the notice of defi-
19 ciency or unless such increase in deficiency is the result of a change
20 or correction of sales and compensating use tax liability required to be
21 reported under section 11-519.1 of this title, and of which change or
22 correction the commissioner of finance had no notice at the time he or
23 she mailed the notice of deficiency; and
24 (4) whether any person is liable for a penalty under subdivision (k)
25 of section 11-525 of this chapter.
26 (f) Evidence of related federal or state determination. Evidence of a
27 federal or state determination relating to issues raised in a case
28 before the tax appeals tribunal under this section shall be admissible,
29 under rules established by the tax appeals tribunal.
30 (g) Jurisdiction over other years. The tax appeals tribunal shall
31 consider such facts with relation to the taxes for other years as may be
32 necessary correctly to determine the tax for the taxable year, but in so
33 doing shall have no jurisdiction to determine whether or not the tax for
34 any other year has been overpaid or underpaid.
35 § 11-530 Review of tax appeals tribunal's decision. (a) General. A
36 decision of the tax appeals tribunal sitting en banc shall be subject to
37 judicial review at the instance of any taxpayer affected thereby in the
38 manner provided by law for the review of a final decision or action of
39 administrative agencies of the city. An application by a taxpayer for
40 such review must be made within four months after notice of the decision
41 is sent by certified mail, return receipt requested, to the taxpayer and
42 the commissioner of finance.
43 (b) Judicial review exclusive remedy. The review of a decision of the
44 tax appeals tribunal provided by this section shall be the exclusive
45 remedy available to any taxpayer for the judicial determination of the
46 liability of the taxpayer for the taxes imposed by this chapter.
47 (c) Assessment pending review; review bond. Irrespective of any
48 restrictions on the assessment and collection of deficiencies, the
49 commissioner of finance may assess a deficiency determined by the tax
50 appeals tribunal in a decision rendered pursuant to section one hundred
51 seventy-one of the charter of the preceding municipality as it existed
52 January first, nineteen hundred ninety-four after the expiration of the
53 period specified in subdivision (a) of this section, notwithstanding
54 that an application for judicial review in respect of such deficiency
55 has been duly made by the taxpayer, unless the taxpayer, at or before
56 the time his or her application for review is made, has paid the defi-
S. 8578 505
1 ciency, has deposited with the commissioner of finance the amount of the
2 deficiency, or has filed with the commissioner of finance a bond, which
3 may be a jeopardy bond under subdivision (h) of section 11-534 of this
4 chapter, in the amount of the portion of the deficiency, including
5 interest and other amounts, in respect of which the application for
6 review is made and all costs and charges which may accrue against such
7 taxpayer in the prosecution of the proceeding, including costs of all
8 appeals, and with surety approved by a justice of the supreme court of
9 the state of New York, conditioned upon the payment of the deficiency,
10 including interests and other amounts, as finally determined and such
11 costs and charges. If, as a result of a waiver of the restrictions on
12 the assessment and collection of a deficiency, any part of the amount
13 determined by the tax appeals tribunal is paid after the filing of the
14 review bond, such bond shall, at the request of the taxpayer, be propor-
15 tionately reduced.
16 (d) Credit, refund or abatement after review. If the amount of a defi-
17 ciency determined by the tax appeals tribunal is disallowed in whole or
18 in part by the court of review, the amount so disallowed shall be cred-
19 ited, or refunded to the taxpayer, without the making of claim therefor,
20 or, if payment has not been made, shall be abated.
21 (e) Date of finality of tax appeals tribunal's decision. A decision of
22 the tax appeals tribunal shall become final upon the expiration of the
23 period specified in subdivision (a) of this section for making an appli-
24 cation for review, if no such application has been duly made within such
25 time, or if such application has been duly made, upon expiration of the
26 time for all further judicial review, or upon the rendering by the tax
27 appeals tribunal of a decision in accordance with the mandate of the
28 court on review. Notwithstanding the provisions of this subdivision,
29 for the purpose of making an application for review, the decision of the
30 tax appeals tribunal shall be deemed final on the date the notice of
31 decision is sent by certified mail to the taxpayer and the commissioner
32 of finance.
33 § 11-531 Mailing rules; holidays; miscellaneous. (a) Timely mailing.
34 (1) If any return, declaration of estimated tax, claim, statement,
35 notice, petition, or other document required to be filed, or any payment
36 required to be made, within a prescribed period or on or before a
37 prescribed date under authority of any provision of this chapter is,
38 after such period or such date, delivered by the United States mail to
39 the commissioner of finance, tax appeals tribunal, bureau, office, offi-
40 cer or person with which or with whom such document is required to be
41 filed, or to which or to whom such payment is required to be made, the
42 date of the United States postmark stamped on the envelope shall be
43 deemed to be the date of delivery. This subdivision shall apply only if
44 the postmark date falls within the prescribed period or on or before the
45 prescribed date for the filing of such document, or for making the
46 payment, including any extension granted for such filing or payment, and
47 only if such document or payment was deposited in the mail, postage
48 prepaid, properly addressed to the commissioner of finance, tax appeals
49 tribunal, bureau, office, officer or person with which or with whom the
50 document is required to be filed or to which or to whom such payment is
51 required to be made. If any document is sent by United States registered
52 mail, such registration shall be prima facie evidence that such document
53 was delivered to the commissioner of finance, tax appeals tribunal,
54 bureau, office, officer or person to which or to whom addressed. To the
55 extent that the commissioner of finance or, where relevant, the tax
56 appeals tribunal shall prescribe by regulation, certified mail may be
S. 8578 506
1 used in lieu of registered mail under this section. Except as provided
2 in paragraph two of this subdivision, this subdivision shall apply in
3 the case of postmarks not made by the United States postal service only
4 if and to the extent provided by regulations of the commissioner of
5 finance or, where relevant, the tax appeals tribunal.
6 (2) (A) Any reference in paragraph one of this subdivision to the
7 United States mail shall be treated as including a reference to any
8 delivery service designated by the secretary of the treasury of the
9 United States pursuant to section seventy-five hundred two of the inter-
10 nal revenue code and any reference in paragraph one of this subdivision
11 to a United States postmark shall be treated as including a reference to
12 any date recorded or marked in the manner described in section seventy-
13 five hundred two of the internal revenue code by a designated delivery
14 service. If the commissioner of finance finds that any delivery service
15 designated by such secretary is inadequate for the needs of the city,
16 the commissioner may withdraw such designation for purposes of this
17 title. The commissioner may also designate additional delivery services
18 meeting the criteria of section seventy-five hundred two of the internal
19 revenue code for purposes of this title, or may withdraw any such desig-
20 nation if the commissioner of finance finds that a delivery service so
21 designated is inadequate for the needs of the city. Any reference in
22 paragraph one of this subdivision to the United States mail shall be
23 treated as including a reference to any delivery service designated by
24 the commissioner of finance and any reference in paragraph one of this
25 subdivision to a United States postmark shall be treated as including a
26 reference to any date recorded or marked in the manner described in
27 section seventy-five hundred two of the internal revenue code by a
28 delivery service designated by the commissioner of finance. Notwith-
29 standing the provisions of this paragraph, any withdrawal of designation
30 or additional designation by the commissioner of finance shall not be
31 effective for purposes of service upon the tax appeals tribunal, unless
32 and until such withdrawal of designation or additional designation is
33 ratified by the president of the tax appeals tribunal.
34 (B) Any equivalent of registered or certified mail designated by the
35 United States secretary of the treasury, or as may be designated by the
36 commissioner of finance pursuant to the same criteria used by such
37 secretary for such designations pursuant to section seventy-five hundred
38 two of the internal revenue code, shall be included within the meaning
39 of registered or certified mail as used in paragraph one of this subdi-
40 vision. If the commissioner of finance finds that any equivalent of
41 registered or certified mail designated by such secretary or the commis-
42 sioner of finance is inadequate for the needs of the city, the commis-
43 sioner of finance may withdraw such designation for purposes of this
44 title. Notwithstanding the provisions of this paragraph, any withdrawal
45 of designation or additional designation by the commissioner of finance
46 shall not be effective for purposes of service upon the tax appeals
47 tribunal, unless and until such withdrawal of designation or additional
48 designation is ratified by the president of the tax appeals tribunal.
49 (b) Last known address. For purposes of this chapter, a taxpayer's
50 last known address shall be given in the last return filed by the
51 taxpayer, unless subsequently to the filing of such return the taxpayer
52 shall have notified the commissioner of finance of a change of address.
53 (c) Last day a Saturday, Sunday or legal holiday. When the last day
54 prescribed under authority of this chapter, including any extension of
55 time, for performing any act falls on Saturday, Sunday, or a legal holi-
56 day in the state of New York, the performance of such act shall be
S. 8578 507
1 considered timely if it is performed on the next succeeding day which is
2 not a Saturday, Sunday or legal holiday.
3 (d) Certificate: unfiled return. For purposes of this chapter and
4 sections one hundred sixty-eight through one hundred seventy-two of the
5 charter of the preceding municipality, the certificate of the commis-
6 sioner of finance to the effect that a tax has not been paid, that a
7 return or declaration of estimated tax has not been filed, or that
8 information has not been supplied, as required by or under the
9 provisions of this title, shall be prima facie evidence that such tax
10 has not been paid, that such return or declaration has not been filed,
11 or that such information has not been supplied.
12 § 11-532 Collection, levy and liens. (a) Collection procedures. The
13 taxes imposed by this chapter shall be collected by the commissioner of
14 finance, and the commissioner may establish the mode or time for the
15 collection of any amount due it under this chapter if not otherwise
16 specified. The commissioner of finance shall, upon request, give a
17 receipt for any sum collected under this chapter. The commissioner of
18 finance may authorize banks or trust companies which are depositories or
19 financial agents of the city to receive and give a receipt for any tax
20 imposed under this chapter in such manner, at such times, and under such
21 conditions as the commissioner of finance may prescribe; and the commis-
22 sioner of finance shall prescribe the manner, times and conditions under
23 which the receipt of such tax by such banks and trust companies is to be
24 treated as payment of such tax to the commissioner of finance.
25 (b) Notice and demand for tax. The commissioner of finance shall as
26 soon as practicable give notice to each person liable for any amount of
27 tax, addition to tax, penalty or interest, which has been assessed but
28 remains unpaid, stating the amount and demanding payment thereof. Such
29 notice shall be left at the dwelling or usual place of business of such
30 person or shall be sent by mail to such person's last known address.
31 Except where the commissioner of finance determines that collection
32 would be jeopardized by delay, if any tax is assessed prior to the last
33 date, including any date fixed by extension, prescribed for payment of
34 such tax, payment of such tax shall not be demanded until after such
35 date.
36 (c) Issuance of warrant after notice and demand. If any person liable
37 under this chapter for the payment of any tax, addition to tax, penalty
38 or interest neglects or refuses to pay the same within the ten days
39 after notice and demand herefor is given to such person under subdivi-
40 sion (b) of this section, the commissioner of finance may within six
41 years after the date of such assessment issue a warrant directed to the
42 sheriff of any county of the state, or to any officer or employee of the
43 department of finance, commanding such person to levy upon and sell such
44 person's real and personal property for the payment of the amount
45 assessed, with the cost of executing the warrant, and to return such
46 warrant to the commissioner of finance and pay to the commissioner the
47 money collected by virtue thereof within sixty days after the receipt of
48 the warrant. If the commissioner of finance finds that the collection
49 of the tax or other amount is in jeopardy, notice and demand for immedi-
50 ate payment of such tax may be made by the commissioner of finance and
51 upon failure or refusal to pay such tax or other amount the commissioner
52 of finance may issue a warrant without regard to the ten-day period
53 provided in this subdivision.
54 (d) Copy of warrant to be filed and lien to be created. Any sheriff
55 or officer or employee who receives a warrant under subdivision (c) of
56 this section shall within five days thereafter file a copy with the
S. 8578 508
1 clerk of the appropriate county. The clerk shall thereupon enter in the
2 judgment docket, in the column for judgment debtors, the name of the
3 taxpayer mentioned in the warrant, and in appropriate columns the tax or
4 other amounts for which the warrant is issued and the date when such
5 copy is filed; and such amount shall thereupon be a binding lien upon
6 the real, personal and other property of the taxpayer.
7 (e) Judgment. When a warrant has been filed with the county clerk the
8 commissioner of finance shall, on behalf of the city, be deemed to have
9 obtained judgment against the taxpayer for the tax or other amounts.
10 (f) Execution. The sheriff or officer or employee shall thereupon
11 proceed upon the judgment in all respects, with like effect, and in the
12 same manner prescribed by law in respect to executions issued against
13 property upon judgments of a court of record, and a sheriff shall be
14 entitled to the same fees for the sheriff's services in executing the
15 warrant, to be collected in the same manner. An officer or employee of
16 the department of finance may proceed in any county or counties of this
17 state and shall have all the powers of execution conferred by law upon
18 sheriffs, but shall be entitled to no fee or compensation in excess of
19 actual expenses paid in connection with the execution of the warrant.
20 (g) Taxpayer not a resident of this state. Where a notice and demand
21 under subdivision (b) of this section shall have been given to a taxpay-
22 er who is not then a resident of this state, and it appears to the
23 commissioner of finance that it is not practicable to find in this state
24 property of the taxpayer sufficient to pay the entire balance of tax or
25 other amount owing by such taxpayer who is not then a resident of this
26 state, the commissioner of finance may, in accordance with subdivision
27 (c) of this section, issue a warrant directed to an officer or employee
28 of the department of finance, a copy of which warrant shall be mailed by
29 certified or registered mail to the taxpayer at the taxpayer's last
30 known address, subject to the rules for mailing provided in subdivision
31 (a) of section 11-521 of this chapter. Such warrant shall command the
32 officer or employee to proceed in Richmond county, and such officer or
33 employee shall, within five days after receipt of the warrant, file the
34 warrant and obtain a judgment in accordance with this section. Thereup-
35 on the commissioner of finance may authorize the institution of any
36 action or proceeding to collect or enforce the judgment in any place and
37 by any procedure that a civil judgment of the supreme court of the state
38 of New York could be collected or enforced. The commissioner of finance
39 may also, in the commissioner's discretion, designate agents or retain
40 counsel for the purpose of collecting, outside the state of New York,
41 any unpaid taxes, additions to tax, penalties or interest which have
42 been assessed under this chapter against taxpayers who are not residents
43 of this state, may fix the compensation of such agents and counsel to be
44 paid out of money appropriated or otherwise lawfully available for
45 payment thereof, and may require of them bonds or other security for the
46 faithful performance of their duties, in such form and in such amount as
47 the commissioner of finance shall deem proper and sufficient.
48 (h) Action by city for recovery of taxes. Action may be brought by
49 the corporation counsel of the city at the instance of the commissioner
50 of finance as agent and trustee for the city to recover the amount of
51 any unpaid taxes, additions to tax, penalties or interest which have
52 been assessed under this chapter within six years prior to the date the
53 action is commenced.
54 (i) Release of lien or vacating warrant. The commissioner of finance,
55 if he or she finds that the interests of the city will not thereby be
56 jeopardized, and upon such conditions as the commissioner may require,
S. 8578 509
1 may release any property from the lien of any warrant or vacate such
2 warrant for unpaid taxes, additions to tax, penalties and interest filed
3 pursuant to subdivision (d) or (g) of this section, and such release or
4 vacating of the warrant may be recorded in the office of any recording
5 officer in which such warrant has been filed. The clerk shall thereupon
6 cancel and discharge as of the original date of docketing the vacated
7 warrant.
8 § 11-533 Transferees. (a) General. The liability, at law or in equity,
9 of a transferee of property of a taxpayer for any tax, additions to tax,
10 penalty or interest due the commissioner of finance under this chapter,
11 shall be assessed, paid, and collected in the same manner and subject to
12 the same provisions and limitations as in the case of the tax to which
13 the liability relates, except that the period of limitations for assess-
14 ment against the transferee shall be extended by one year for each
15 successive transfer, in order, from the original taxpayer to the trans-
16 feree involved, but not by more than three years in the aggregate. The
17 term "transferee" includes donee, heir, legatee, devisee and distribu-
18 tee.
19 (b) Exceptions. (1) If before the expiration of the period of limi-
20 tations for assessment of liability of the transferee, a claim has been
21 filed by the commissioner of finance in any court against the original
22 taxpayer or the last preceding transferee based upon the liability of
23 the original taxpayer, then the period of limitation for assessment of
24 liability of the transferee shall in no event expire prior to one year
25 after such claim has been finally allowed, disallowed or otherwise
26 disposed of.
27 (2) If, before the expiration of the time prescribed in subdivision
28 (a) of this section or the immediately preceding paragraph of this
29 subdivision for the assessment of the liability, the commissioner of
30 finance and the transferee have both consented in writing to its assess-
31 ment after such time, the liability may be assessed at any time prior to
32 the expiration of the period agreed upon. The period so agreed upon may
33 be extended by subsequent agreements in writing made before the expira-
34 tion of the period previously agreed upon. For the purpose of determin-
35 ing the period of limitation on credit or refund to the transferee of
36 overpayments of tax made by such transferee or overpayments of tax made
37 by the transferor as to which the transferee is legally entitled to
38 credit or refund, such agreement and any extension thereof shall be
39 deemed an agreement and extension thereof referred to in subdivision (b)
40 of section 11-527 of this chapter. If the agreement is executed after
41 the expiration of the period of limitation for assessment against the
42 original taxpayer, then in applying the limitations under subdivision
43 (b) of section 11-527 of this chapter on the amount of the credit or
44 refund, the periods specified in subdivision (a) of section 11-527 of
45 this chapter shall be increased by the period from the date of such
46 expiration to the date of agreement.
47 (c) Deceased transferor. If any person is deceased, the period of
48 limitation for assessment against such person shall be the period that
49 would be in effect if such person had lived.
50 (d) Evidence. Notwithstanding the provisions of subdivision (e) of
51 section 11-537 of this chapter the commissioner of finance shall use his
52 or her powers to make available to the transferee evidence necessary to
53 enable the transferee to determine the liability of the original taxpay-
54 er and of any preceding transferees, but without undue hardship to the
55 original taxpayer or preceding transferee. See subdivision (e) of
56 section 11-529 of this chapter for rules as to burden of proof.
S. 8578 510
1 § 11-534 Jeopardy assessment. (a) Authority for making. If the commis-
2 sioner of finance believes that the assessment or collection of a defi-
3 ciency will be jeopardized by delay, the commissioner shall, notwith-
4 standing the provision of sections 11-521 and 11-536 of this chapter,
5 and immediately assess such deficiency, together with all interest,
6 penalties and additions to tax provided for by law, and notice and
7 demand shall be made by the commissioner of finance for the payment
8 thereof.
9 (b) Notice of deficiency. If the jeopardy assessment is made before
10 any notice in respect to the tax to which the jeopardy assessment
11 relates has been mailed under section 11-521 of this chapter, then the
12 commissioner of finance shall mail a notice under such section within
13 sixty days after the making of the assessment.
14 (c) Amount assessable before decision of tax appeals tribunal. The
15 jeopardy assessment may be made in respect of a deficiency greater or
16 less than that of which notice is mailed to the taxpayer and whether or
17 not the taxpayer has heretofore filed a petition with the tax appeals
18 tribunal. The commissioner of finance may, at any time before the tax
19 appeals tribunal renders its decision, abate such assessment, or any
20 unpaid portion thereof, to the extent that the commissioner believes the
21 assessment to be excessive in amount. The tax appeals tribunal may in
22 its decision redetermine the entire amount of the deficiency and of all
23 amounts assessed at the same time in connection therewith.
24 (d) Amount assessable after decision of tax appeals tribunal. If the
25 jeopardy assessment is made after the decision of the tax appeals tribu-
26 nal is rendered, such assessment may be made only in respect of the
27 deficiency determined by the tax appeals tribunal in its decision.
28 (e) Expiration of right to assess. A jeopardy assessment may not be
29 made after the decision of the tax appeals tribunal has become final or
30 after the taxpayer has made an application for review of the decision of
31 the tax appeals tribunal.
32 (f) Collection of unpaid amounts. When a petition has been filed with
33 the tax appeals tribunal and when the amount which should have been
34 assessed has been determined by a decision of the tax appeals tribunal
35 which has become final, then any unpaid portion, the collection of which
36 has been stayed by bond, shall be collected as part of the tax upon
37 notice and demand from the commissioner of finance, and any remaining
38 portion of the assessment shall be abated. If the amount already
39 collected exceeds the amount determined as the amount which should have
40 been assessed, such excess shall be credited or refunded to the taxpayer
41 as provided in section 11-526 of this chapter without the filing of
42 claim therefor. If the amount determined as the amount which should have
43 been assessed is greater than the amount actually assessed, then the
44 difference shall be assessed and shall be collected as part of the tax
45 upon notice and demand from the commissioner of finance.
46 (g) Abatement if jeopardy does not exist. The commissioner of finance
47 may abate the jeopardy assessment if the commissioner finds that jeopar-
48 dy does not exist. Such abatement may not be made after a decision of
49 the tax appeals tribunal in respect of the deficiency has been rendered
50 or, if no petition is filed with the tax appeals tribunal, after the
51 expiration of the period for filing such petition. The period of limita-
52 tion on the making of assessments and levy or a proceeding for
53 collection, in respect of any deficiency, shall be determined as if the
54 jeopardy assessment so abated had not been made, except that the running
55 of such period shall in any event be suspended for the period from the
S. 8578 511
1 date of such jeopardy assessment until the expiration of the tenth day
2 after the day on which such jeopardy assessment is abated.
3 (h) Bond to stay collection. The collection of the whole or any amount
4 of any jeopardy assessment may be stayed by filing with the commissioner
5 of finance, within such time as may be fixed by regulation, a bond in an
6 amount equal to the amount as to which the stay is desired, conditioned
7 upon the payment of the amount, together with interest thereon, the
8 collection of which is stayed at the time at which, but for the making
9 of the jeopardy assessment, such amount would be due. Upon the filing of
10 the bond the collection of so much of the amount assessed as is covered
11 by the bond shall be stayed. The taxpayer shall have the right to waive
12 such stay at any time in respect of the whole or any part of the amount
13 covered by the bond, and if as a result of such waiver any part of the
14 amount covered by the bond is paid, then the bond shall at the request
15 of the taxpayer, be proportionately reduced. If any portion of the
16 jeopardy assessment is abated, or if a notice or deficiency under
17 section 11-521 of this chapter is mailed to the taxpayer in a lesser
18 amount, the bond shall, at the request of the taxpayer, be proportion-
19 ately reduced.
20 (i) Petition to tax appeals tribunal. If the bond is given before the
21 taxpayer has filed his or her petition under section 11-529 of this
22 chapter, the bond shall contain a further condition that if a petition
23 is not filed within the period provided in such section, then the amount
24 the collection of which is stayed by the bond, will be paid on notice
25 and demand at any time after the expiration of such period, together
26 with interest thereon from the date of the jeopardy notice and demand to
27 the date of notice and demand under this subdivision. The bond shall be
28 conditioned upon the payment of so much of such assessment, collection
29 of which is stayed by the bond, as is not abated by a decision of the
30 tax appeals tribunal which has become final. If the tax appeals tribunal
31 determines that the amount assessed is greater than the amount which
32 should have been assessed, then the bond shall, at the request of the
33 taxpayer, be proportionately reduced when the decision of the tax
34 appeals tribunal is rendered.
35 (j) Stay of sale of seized property pending tax appeals tribunal deci-
36 sion. Where a jeopardy assessment is made, the property seized for the
37 collection of the tax shall not be sold:
38 (1) if subdivision (b) of this section is applicable, prior to the
39 issuance of the notice of deficiency and the expiration of the time
40 provided in section 11-529 of this chapter for filing a petition with
41 the tax appeals tribunal, and
42 (2) if a petition is filed with the tax appeals tribunal, whether
43 before or after the making of such jeopardy assessment, prior to the
44 expiration of the period during which the assessment of the deficiency
45 would be prohibited if subdivision (a) of this section were not applica-
46 ble.
47 Such property may be sold if the taxpayer consents to the sale, or if
48 the commissioner of finance determines that the expenses of conservation
49 and maintenance will greatly reduce the net proceeds, or if the property
50 is perishable.
51 (k) Interest. For the purpose of subdivision (a) of section 11-524 of
52 this chapter, the last date prescribed for payment shall be determined
53 without regard to any notice and demand for payment issued under this
54 section prior to the last date otherwise prescribed for such payment.
55 (l) Early termination of taxable year. If the commissioner of finance
56 finds that a taxpayer designs quickly to depart from this state or to
S. 8578 512
1 remove his or her property therefrom, or to conceal himself or herself
2 or his or her property therein, or to do any other act tending to preju-
3 dice or to render wholly or partly ineffectual proceedings to collect
4 the income tax for the current or the preceding taxable year unless such
5 proceedings be brought without delay, the commissioner of finance shall
6 declare the taxable period for such taxpayer immediately terminated, and
7 shall cause notice of such finding and declaration to be given to the
8 taxpayer, together with a demand for immediate payment of the tax for
9 the taxable period so declared terminated and of the tax for the preced-
10 ing taxable year or so much of such tax as is unpaid, whether or not the
11 time otherwise allowed by law for filing return and paying the tax has
12 expired; and such taxes shall thereupon become immediately due and paya-
13 ble. In any proceeding brought to enforce payment of taxes made due and
14 payable by virtue of the provisions of this subdivision, the finding of
15 the commissioner of finance, whether made after notice to the taxpayer
16 or not, shall be for all purposes presumptive evidence of jeopardy.
17 (m) Reopening of taxable period. Notwithstanding the termination of
18 the taxable period of the taxpayer by the commissioner of finance as
19 provided in subdivision (l) of this section, the commissioner of finance
20 may reopen such taxable period each time the taxpayer is found by the
21 commissioner of finance to have received income, within the current
22 taxable year, since the termination of such period. A taxable period so
23 terminated by the commissioner of finance may be reopened by the taxpay-
24 er if the taxpayer files with the commissioner of finance a true and
25 accurate return of taxable income and credits allowed under this chapter
26 for taxable period, together with such other information as the commis-
27 sioner of finance may by regulations prescribe.
28 (n) Furnishing of bond where taxable year is closed by the commission-
29 er of finance. Payment of taxes shall not be enforced by any proceedings
30 under the provisions of subdivision (l) of this section prior to the
31 expiration of the time otherwise allowed for paying such taxes if the
32 taxpayer furnishes, under regulations prescribed by the commissioner of
33 finance, a bond to insure the timely making of returns with respect to,
34 and payment of, such taxes or any taxes under this chapter for prior
35 years.
36 § 11-535 Criminal penalties; cross-reference. For criminal penalties,
37 see chapter forty of this title.
38 § 11-536 Armed forces relief provisions. (a) Time to be disregarded.
39 In the case of an individual serving in the armed forces of the United
40 States or serving in support of such armed forces, in an area designated
41 by the president of the United States by executive order as a "combat
42 zone" at any time during the period designated by the president by exec-
43 utive order as the period of combatant activities in such zone, or
44 hospitalized outside the state as a result of injury received while
45 serving in such an area during such time, the period of service in such
46 area, plus the period of continuous hospitalization outside the state
47 attributable to such injury, and the next one hundred eighty days there-
48 after, shall be disregarded in determining, under this chapter, in
49 respect of the tax liability, including any interest, penalty, or addi-
50 tion to the tax, of such individual:
51 (1) Whether any of the following acts was performed within the time
52 prescribed therefor:
53 (A) filing any return of tax;
54 (B) payment of any tax or any installment thereof or of any other
55 liability to the commissioner of finance, in respect thereof;
S. 8578 513
1 (C) filing a petition with the tax appeals tribunal for credit or
2 refund or for redetermination of a deficiency, or application for review
3 of a decision rendered by the tax appeals tribunal;
4 (D) allowance of a credit or refund of tax;
5 (E) filing a claim for credit or refund of tax;
6 (F) assessment of tax;
7 (G) giving or making any notice or demand for the payment of any tax,
8 or with respect to any liability to the commissioner of finance in
9 respect of tax;
10 (H) collection, by the commissioner of finance, by levy or otherwise
11 of the amount of any liability in respect of tax;
12 (I) bringing suit by the city, or any officer, on its behalf, in
13 respect of any liability in respect of tax; and
14 (J) any other act required or permitted under this chapter or speci-
15 fied in regulations prescribed under this section by the commissioner of
16 finance.
17 (2) The amount of any credit or refund (including interest).
18 (b) Action taken before ascertainment of right to benefits. The
19 assessment or collection of the tax imposed by this chapter or of any
20 liability to the commissioner of finance in respect of such tax, or any
21 action or proceeding by or on behalf of the commissioner of finance in
22 connection therewith, may be made, taken, begun, or prosecuted in
23 accordance with law, without regard to the provisions of subdivision (a)
24 of this section, unless prior to such assessment, collection, action, or
25 proceeding it is ascertained that the person concerned is entitled to
26 the benefit of subdivision (a) of this section.
27 (c) Members of armed forces dying in action. In the case of any person
28 who dies during an induction period while in active service as a member
29 of the armed forces of the United States, if such death occurred while
30 serving in a combat zone during a period of combatant activities in such
31 zone, as described in subdivision (a) of this section, or as a result of
32 wounds, disease or injury incurred while so serving, the tax imposed by
33 this chapter shall not apply with respect to the taxable year in which
34 falls the date of such person's death, or with respect to any prior
35 taxable year ending on or after the first day he or she so served in a
36 combat zone, and no returns shall be required in behalf of such person
37 or such person's estate for such year; and the tax for any such taxable
38 year which is unpaid at the date of his or her death, including inter-
39 est, additions to tax and penalties, if any, shall not be assessed and
40 if assessed, the assessment shall be abated and, if collected, shall be
41 refunded to the legal representative of such person's estate if one has
42 been appointed and has qualified, or, if no legal representative has
43 been appointed or has qualified, to such person's surviving spouse.
44 § 11-537 General powers of commissioner of finance. (a) General. The
45 commissioner of finance shall administer and enforce the tax imposed by
46 this chapter and the commissioner is authorized to make such rules and
47 regulations, and to require such facts and information to be reported,
48 as the commissioner may deem necessary to enforce the provision of this
49 chapter; and the commissioner may delegate his or her powers and func-
50 tions under all parts of this chapter to one of the commissioner's depu-
51 ties or to any employee or employees of the commissioner's department.
52 (b) Examination of books and witnesses. The commissioner of finance
53 for the purpose of ascertaining the correctness of any return, or for
54 the purpose of making an estimate of tax of any person, shall have power
55 to examine or to cause to have examined, by any agent or representative
56 designated by the commissioner for that purpose, any books, papers,
S. 8578 514
1 records or memoranda bearing upon the matters required to be included in
2 the return, and may require the attendance of the person rendering the
3 return or any officer or employee of such person, or the attendance of
4 any other person having knowledge in the premises, and may take testimo-
5 ny and require proof material for the commissioner's information, with
6 power to administer oaths to such person or persons.
7 (c) Abatement authority. The commissioner of finance, of his or her
8 own motion, may abate any small unpaid balance of an assessment of tax
9 under this part, or any liability in respect thereof, if the commis-
10 sioner of finance determines under uniform rules prescribed by the
11 commissioner that the administration and collection costs involved would
12 not warrant collection of the amount due. The commissioner may also
13 abate, of his or her own motion, the unpaid portion of the assessment of
14 any tax or any liability in respect thereof, which is excessive in
15 amount, or is assessed after the expiration of the period of limitation
16 properly applicable thereto, or is erroneously or illegally assessed.
17 No claim for abatement under this subdivision shall be filed by a
18 taxpayer.
19 (d) Special refund authority. Where no questions of fact or law are
20 involved and it appears from the records of the commissioner of finance
21 that any moneys have been erroneously or illegally collected from any
22 taxpayer or other person, or paid by such taxpayer or other person under
23 a mistake of facts, pursuant to the provisions of this chapter, the
24 commissioner of finance at any time, without regard to any period of
25 limitations, shall have the power, upon making a record of his or her
26 reasons therefor in writing, to cause such moneys so paid and being
27 erroneously and illegally held to be refunded.
28 (e) Cooperation with the United States, this state and other states.
29 Notwithstanding the provisions of section 11-538 of this chapter, the
30 commissioner of finance may permit the secretary of the treasury of the
31 United States or the secretary's delegates, or the proper officer of
32 this or any other state imposing an income tax upon the incomes of indi-
33 viduals, or the authorized representative of any such officer, to
34 inspect any return filed under this chapter or may furnish to such offi-
35 cer or his or her authorized representative an abstract of any such
36 return or supply such officer with information concerning an item
37 contained in any such return, or disclosed by any investigation of tax
38 liability under this chapter, but such permission shall be granted or
39 such information furnished to such officer or such officer's represen-
40 tative only if the laws of the United States or of such state, as the
41 case may be, grant substantially similar privileges to the commissioner
42 of finance and such information is to be used for tax purposes only; and
43 provided further the commissioner of finance may furnish to the secre-
44 tary of the treasury of the United States or the secretary's delegates
45 or to the tax commission of the state of New York or its delegates such
46 returns filed under this chapter and other tax information, as he or she
47 may consider proper for use in court actions or proceedings under the
48 internal revenue code or the tax law of the state of New York, whether
49 civil or criminal, where a written request therefor has been made to the
50 commissioner of finance by the secretary of the treasury or by such tax
51 commission or by their delegates, provided the laws of the United States
52 or the laws of the state of New York grant substantially similar powers
53 to the secretary of the treasury of the United States or the secretary's
54 delegates or to such tax commission or its delegates. Where the commis-
55 sioner of finance has so authorized use of returns or other information
56 in such actions or proceedings, officers and employees of the department
S. 8578 515
1 of finance may testify in such actions or proceedings in respect to such
2 returns or other information.
3 (f) (1) Authority to set interest rates. The commissioner of finance
4 shall set the overpayment and underpayment rates of interest to be paid
5 pursuant to sections 11-524, 11-525 and 11-528 of this chapter, but if
6 no such rate or rates of interest are set, such overpayment rate shall
7 be deemed to be set at six percent per annum and such underpayment rate
8 shall be deemed to be set at seven and one-half percent per annum. Such
9 overpayment and underpayment rates shall be the rates prescribed in
10 paragraph two of this subdivision, but the underpayment rate shall not
11 be less than seven and one-half percent per annum. Any such rates set by
12 the commissioner of finance shall apply to taxes, or any portion there-
13 of, which remain or become due or overpaid on or after the date on which
14 such rates become effective and shall apply only with respect to inter-
15 est computed or computable for periods or portions of periods occurring
16 in the period during which such rates are in effect.
17 (2) General rule. (A) Overpayment rate. The overpayment rate set under
18 this subdivision shall be the sum of (i) the federal short-term rate as
19 provided under paragraph three of this subdivision, plus (ii) two
20 percentage points.
21 (B) Underpayment rate. The underpayment rate set under this subdivi-
22 sion shall be the sum of (i) the federal short-term rate as provided
23 under paragraph three of this subdivision, plus (ii) seven percentage
24 points.
25 (3) Federal short-term rate. For purposes of this subdivision:
26 (A) The federal short-term rate for any month shall be the federal
27 short-term rate determined by the United States secretary of the treas-
28 ury during such month in accordance with subsection (d) of section
29 twelve hundred seventy-four of the internal revenue code for use in
30 connection with section six thousand six hundred twenty-one of the
31 internal revenue code. Any such rate shall be rounded to the nearest
32 full percent, or, if a multiple of one-half of one percent, such rate
33 shall be increased to the next highest full percent.
34 (B) Period during which rate applies.
35 (i) In general. Except as provided in clause (ii) of this subpara-
36 graph, the federal short-term rate for the first month in each calendar
37 quarter shall apply during the first calendar quarter beginning after
38 such month.
39 (ii) Special rule for the month of September, nineteen hundred eight-
40 y-nine. The federal short-term rate for the month of April, nineteen
41 hundred eighty-nine shall apply with respect to setting the overpayment
42 and underpayment rates for the month of September, nineteen hundred
43 eighty-nine.
44 (4) Publication of interest rates. The commissioner of finance shall
45 cause to be published in the City Record, and give other appropriate
46 general notice of, the interest rates to be set under this subdivision
47 no later than twenty days preceding the first day of the calendar quar-
48 ter during which such interest rates apply. The setting and publication
49 of such interest rates shall not be included within paragraph (a) of
50 subdivision five of section one thousand forty-one of the city charter
51 of the preceding municipality as it existed January first, nineteen
52 hundred ninety-four relating to the definition of a rule.
53 (5) Cross-reference. For provisions relating to the power of the
54 commissioner of finance to abate small amounts of interest, see subdivi-
55 sion (c) of this section.
S. 8578 516
1 (g) In computing the amount of any interest required to be paid under
2 this chapter by the commissioner of finance or by the taxpayer, or any
3 other amount determined by reference to such amount of interest, such
4 interest and such amount shall be compounded daily. The provisions of
5 this subdivision shall not apply for purposes of computing the amount of
6 any addition to tax for failure to pay estimated tax under subdivision
7 (c) of section 11-525 of this chapter.
8 § 11-538 Secrecy requirement and the penalties for violation. 1.
9 Except in accordance with proper judicial order or as otherwise provided
10 by law, it shall be unlawful for the commissioner of finance, the
11 department of finance of the city, any officer or employee of the
12 department of finance of the city, any person engaged or retained by
13 such department on an independent contract basis, any depository to
14 which any return may be delivered as provided in subdivision four of
15 this section, any officer or employee of such depository, the tax
16 appeals tribunal, any commissioner or employee of such tribunal, or any
17 person who, pursuant to this section, is permitted to inspect any report
18 or return or to whom a copy, an abstract or a portion of any report or
19 return is furnished, or to whom any information contained in any report
20 or return is furnished, to divulge or make known in any manner the
21 amount of income or any particulars set forth or disclosed in any report
22 or return required under this chapter. The officers charged with the
23 custody of such reports and returns shall not be required to produce any
24 of them or evidence of anything contained in them in any action or
25 proceeding in any court, except on behalf of the city in an action or
26 proceeding under the provisions of this chapter or in any other action
27 or proceeding involving the collection of a tax due under this chapter
28 to which the city is a party or a claimant, or on behalf of any party to
29 any action or proceeding under the provisions of this chapter when the
30 reports, returns or facts shown thereby are directly involved in such
31 action or proceeding, in any of which events the court may require the
32 production of, and may admit in evidence, so much of said reports,
33 returns or of the facts shown thereby, as are pertinent to the action or
34 proceeding and no more. Nothing herein shall be construed to prohibit
35 the delivery to a taxpayer or to the taxpayer's duly authorized repre-
36 sentative of a certified copy of any return or report filed in
37 connection with his or her tax or to prohibit the publication of statis-
38 tics so classified as to prevent the identification of particular
39 reports or returns and the items thereof, or the inspection by the
40 corporation counsel or other legal representatives of the city of the
41 report or return of any taxpayer who shall bring action to set aside or
42 review the tax based thereon, or against whom an action or proceeding
43 under this chapter has been recommended by the commissioner of finance
44 or the corporation counsel or has been instituted, or the inspection of
45 the reports or returns required under this chapter by the duly desig-
46 nated officers or employees of the city for purposes of an audit under
47 this chapter or an audit authorized by the enacting of this chapter.
48 Reports and returns shall be preserved for three years and thereafter
49 until the commissioner of finance orders them to be destroyed.
50 2. Any officer or employee of the city or the state who willfully
51 violates the provisions of subdivision one of this section shall be
52 dismissed from office and be incapable of holding any public office in
53 the city or the state for a period of five years thereafter.
54 3. Cross-reference: For criminal penalties, see chapter forty of this
55 title.
S. 8578 517
1 4. Notwithstanding the provisions of subdivision one of this section,
2 the commissioner of finance, in his or her discretion, may require or
3 permit any or all persons liable for any tax imposed by this chapter, to
4 make payments on account of estimated tax and payment of any tax, penal-
5 ty or interest imposed by this chapter to banks, banking houses or trust
6 companies designated by the commissioner of finance and to file declara-
7 tions of estimated tax and reports and returns with such banks, banking
8 houses or trust companies as agents of the commissioner of finance, in
9 lieu of making any such payment directly to the commissioner of finance.
10 However, the commissioner of finance shall designate only such banks,
11 banking houses or trust companies as are depositories or financial
12 agents of the city.
13 5. This section shall be deemed a state statute for purposes of para-
14 graph (a) of subdivision two of section eighty-seven of the public offi-
15 cers law.
16 6. Notwithstanding anything in subdivision one of this section to the
17 contrary, if a taxpayer has petitioned the tax appeals tribunal for
18 administrative review as provided in section one hundred seventy of the
19 charter of the preceding municipality as it existed January first, nine-
20 teen hundred ninety-four, the commissioner of finance shall be author-
21 ized to present to the tribunal any report or return of such taxpayer,
22 or any information contained therein or relating thereto, which may be
23 material or relevant to the proceeding before the tribunal. The tax
24 appeals tribunal shall be authorized to publish a copy or a summary of
25 any decision rendered pursuant to section one hundred seventy-one of the
26 charter of the preceding municipality as it existed January first, nine-
27 teen hundred ninety-four.
28 7. Notwithstanding anything in subdivision one of this section, the
29 commissioner of finance may disclose to a taxpayer or a taxpayer's
30 related member, as defined in subdivision (e) of section 11-506 of this
31 chapter, information relating to any royalty paid, incurred or received
32 by such taxpayer or related member to or from the other, including the
33 treatment of such payments by the taxpayer or the related member in any
34 report or return transmitted to the commissioner of finance under this
35 title.
36 § 11-539 Inconsistencies with other laws. If any provision of this
37 chapter is inconsistent with, in conflict with, or contrary to any other
38 provision of law, such provision of this chapter shall prevail over such
39 other provision and such other provision shall be deemed to have been
40 amended, superseded or repealed to the extent of such inconsistency,
41 conflict or contrariety.
42 § 11-540 Disposition of revenues. All revenues resulting from the
43 imposition of the taxes under this chapter shall be paid into the treas-
44 ury of the city and shall be credited to and deposited in the general
45 fund of the city, but no part of such revenues may be expended unless
46 appropriated in the annual budget of the city.
47 CHAPTER 6
48 CITY BUSINESS
49 TAXES
50 SUBCHAPTER 1
51 GENERAL PROVISIONS
52 § 11-601 Definitions. When used in subchapters one through five:
53 1. "Taxpayer" means any corporation, association or other entity or
54 individual subject to tax under this chapter;
S. 8578 518
1 2. "State", "the state" or "this state" means the state of New York;
2 3. "Tax law", "insurance law", "private housing finance law", "envi-
3 ronmental conservation law", "public housing law", "state finance law",
4 "general municipal law", "public service law", "workers' compensation
5 law", "business corporation law", "civil practice law and rules", "crim-
6 inal procedure law", and "banking law" refer to laws of the state;
7 4. "Superintendent of insurance", and "commissioner of health" refer
8 to officials of the state;
9 5. "Commissioner of finance" means the commissioner of finance of the
10 city;
11 6. "Department of finance" means the department of finance of the
12 city;
13 7. "Domestic corporation" means a corporation organized under the laws
14 of the state; and
15 8. "Tax appeals tribunal" means the tax appeals tribunal established
16 by section one hundred sixty-eight of the charter of the preceding muni-
17 cipality as it existed January first, nineteen hundred ninety-four.
18 9. "REIT" means a real estate investment trust as defined in section
19 eight hundred fifty-six of the internal revenue code.
20 10. "RIC" means a regulated investment company as defined in section
21 eight hundred fifty-one of the internal revenue code.
22 11. "Captive REIT" means a REIT (a) that is not regularly traded on an
23 established securities market, and (b) more than fifty percent of the
24 voting stock of which is owned or controlled, directly or indirectly, by
25 a single corporation that is not exempt from federal income tax and is
26 not a REIT. Any voting stock in a REIT that is held in a segregated
27 asset account of a life insurance corporation, as described in section
28 eight hundred seventeen of the internal revenue code, shall not be taken
29 into account for purposes of determining whether a REIT is a captive
30 REIT.
31 12. "Captive RIC" means a RIC (a) that is not regularly traded on an
32 established securities market, and (b) more than fifty percent of the
33 voting stock of which is owned or controlled, directly or indirectly, by
34 a single corporation that is not exempt from federal income tax and is
35 not a RIC. Any voting stock in a RIC that is held in a segregated asset
36 account of a life insurance corporation, as described in section eight
37 hundred seventeen of the internal revenue code, shall not be taken into
38 account for purposes of determining whether a RIC is a captive RIC.
39 13. Unless a different meaning is clearly required, any term used in
40 this chapter shall have the same meaning as when used in a comparable
41 context in the laws of the United States relating to federal income
42 taxes, and any reference to the laws of the United States shall mean the
43 provisions of the internal revenue code of nineteen hundred fifty-four,
44 and amendments thereto, and other provisions of the laws of the United
45 States relating to federal income taxes, as the same are included in the
46 appendix to this chapter. The quotation of the aforesaid laws of the
47 United States is intended to make them a part of any appropriate chapter
48 and to avoid constitutional uncertainties which might result if such
49 laws were merely incorporated by reference. The quotation of a
50 provision of the federal internal revenue code or of any other law of
51 the United States shall not necessarily mean that it is applicable to or
52 has relevance to any of the chapters.
53 SUBCHAPTER 2
54 GENERAL CORPORATION TAX
S. 8578 519
1 § 11-602 Definitions. When used in this subchapter:
2 1. (a) "Corporation" includes (1) an association within the meaning of
3 paragraph three of subsection (a) of section seventy-seven hundred one
4 of the internal revenue code, including a limited liability company, (2)
5 a joint-stock company or association, (3) a publicly traded partnership
6 treated as a corporation for purposes of the internal revenue code
7 pursuant to section seventy-seven hundred four thereof and (4) any busi-
8 ness conducted by a trustee or trustees wherein interest or ownership is
9 evidenced by certificate or other written instrument;
10 (b) (1) Notwithstanding paragraph (a) of this subdivision, an unincor-
11 porated organization that (i) is described in subparagraph one or three
12 of such paragraph (a) and (ii) was subject to the provisions of chapter
13 five of this title for its taxable year beginning in nineteen hundred
14 ninety-five, may make a one-time election not to be treated as a corpo-
15 ration and, instead, to continue to be subject to the provisions of
16 chapter five of this title for its taxable years beginning in nineteen
17 hundred ninety-six and thereafter. Such election shall be made on the
18 return prescribed pursuant to such chapter five for such electing organ-
19 ization's taxable year beginning in nineteen hundred ninety-six, which
20 shall be filed on or before the due date, determined with regard to
21 extensions, for filing such return.
22 (2) An election under this paragraph shall continue to be in effect
23 until revoked by the unincorporated organization. An election under this
24 paragraph shall be revoked by the filing of a return under this subchap-
25 ter for the first taxable year with respect to which such revocation is
26 to be effective, which return shall be filed on or before the due date,
27 determined with regard to extensions, for filing such return. In no
28 event shall such election or revocation be for a part of a taxable year.
29 (c) Notwithstanding paragraph (a) of this subdivision, a corporation
30 shall not include an entity classified as a partnership for federal
31 income tax purposes.
32 2. "Subsidiary" means a corporation of which over fifty per centum of
33 the number of shares of stock entitling the holders thereof to vote for
34 the election of directors or trustees is owned by the taxpayer;
35 3. "Subsidiary capital" means investments in the stock of subsidiaries
36 and any indebtedness from subsidiaries, exclusive of accounts receivable
37 acquired in the ordinary course of trade or business for services
38 rendered or for sales of property held primarily for sale to customers,
39 whether or not evidenced by written instrument, on which interest is not
40 claimed and deducted by the subsidiary for purposes of taxation under
41 this subchapter or subchapter three of this chapter, provided, however,
42 that, in the discretion of the commissioner of finance, there shall be
43 deducted from subsidiary capital any liabilities which are directly or
44 indirectly attributable to subsidiary capital;
45 4. "Investment capital" means investments in stocks, bonds and other
46 securities, corporate and governmental, not held for sale to customers
47 in the regular course of business, exclusive of subsidiary capital and
48 stock issued by the taxpayer, provided, however, that, in the discretion
49 of the commissioner of finance, there shall be deducted from investment
50 capital any liabilities which are directly or indirectly attributable to
51 investment capital; and provided, further, that investment capital shall
52 not include any such investments the income from which is excluded from
53 entire net income pursuant to the provisions of paragraph (c-1) of
54 subdivision eight of this section, and that investment capital shall be
55 computed without regard to any liabilities directly or indirectly
56 attributable to such investments, but only if air carriers organized in
S. 8578 520
1 the United States and operating in the foreign country or countries in
2 which the taxpayer has its major base of operations and in which it is
3 organized, resident or headquartered, if not in the same country as its
4 major base of operations, are not subject to any tax based on or meas-
5 ured by capital imposed by such foreign country or countries or any
6 political subdivision thereof, or if taxed are provided an exemption,
7 equivalent to that provided for herein, from any tax based on or meas-
8 ured by capital imposed by such foreign country or countries and from
9 any such tax imposed by any political subdivision thereof;
10 5. "Investment income" means income, including capital gains in excess
11 of capital losses, from investment capital to the extent included in
12 computing entire net income, less, (a) in the discretion of the commis-
13 sioner of finance, any deductions allowable in computing entire net
14 income which are directly or indirectly attributable to investment capi-
15 tal or investment income, and (b) such portion of any net operating loss
16 deduction allowable in computing entire net income, as the investment
17 income, before such deduction, bears to entire net income, before such
18 deduction, provided, however, that in no case shall investment income
19 exceed entire net income;
20 6. (a) "Business capital" means all assets, other than subsidiary
21 capital, investment capital and stock issued by the taxpayer, less
22 liabilities not deducted from subsidiary or investment capital except
23 that cash on hand and on deposit shall be treated as investment capital
24 or as business capital as the taxpayer may elect;
25 (b) Provided, however, "business capital" shall not include assets to
26 the extent employed for the purpose of generating income which is
27 excluded from entire net income pursuant to the provisions of paragraph
28 (c-1) of subdivision eight of this section and shall be computed without
29 regard to liabilities directly or indirectly attributable to such
30 assets, but only if air carriers organized in the United States and
31 operating in the foreign country or countries in which the taxpayer has
32 its major base of operations and in which it is organized, resident or
33 headquartered, if not in the same country as its major base of oper-
34 ations, are not subject to any tax based on or measured by capital
35 imposed by such foreign country or countries or any political subdivi-
36 sion thereof, or if taxed, are provided an exemption, equivalent to that
37 provided for herein, from any tax based on or measured by capital
38 imposed by such foreign country or countries and from any such tax
39 imposed by any political subdivision thereof.
40 7. "Business income" means entire net income minus investment income;
41 8. "Entire net income" means total net income from all sources, which
42 shall be presumably the same as the entire taxable income, but not
43 alternative minimum taxable income,
44 (i) which the taxpayer is required to report to the United States
45 treasury department, or
46 (ii) which the taxpayer would have been required to report to the
47 United States treasury department if it had not made an election under
48 subchapter s of chapter one of the internal revenue code, or
49 (iii) which the taxpayer, in the case of a corporation which is exempt
50 from federal income tax, other than the tax on unrelated business taxa-
51 ble income imposed under section five hundred eleven of the internal
52 revenue code, but which is subject to tax under this subchapter, would
53 have been required to report to the United States treasury department
54 but for such exemption, or
55 (iv) which the taxpayer would have been required to report to the
56 United States treasury department if no election had been made to treat
S. 8578 521
1 the taxpayer as a qualified subchapter s subsidiary under paragraph
2 three of subsection (b) of section thirteen hundred sixty-one of the
3 internal revenue code, except as provided in this paragraph, and subject
4 to any modification required by paragraphs (d) and (e) of subdivision
5 three of section 11-604 of this subchapter.
6 (a) Entire net income shall not include:
7 (1) income, gains and losses from subsidiary capital which do not
8 include the amount of a recovery in respect of any war loss;
9 (2) fifty percent of dividends other than from subsidiaries, except
10 that entire net income shall include one hundred percent of dividends on
11 shares of stock with respect to which a dividend deduction is disallowed
12 by subsection (c) of section two hundred forty-six of the internal
13 revenue code;
14 (2-a) any amounts treated as dividends pursuant to section seventy-
15 eight of the internal revenue code and not otherwise deductible under
16 subparagraphs one and two of this paragraph;
17 (3) bona fide gifts;
18 (4) income and deductions with respect to amounts received from school
19 districts and from corporations and associations, organized and operated
20 exclusively for religious, charitable or educational purposes, no part
21 of the net earnings of which inures to the benefit of any private share-
22 holder or individual, for the operation of school buses;
23 (5) any refund or credit of a tax imposed under this chapter, or
24 imposed by article nine or nine-A or thirty-two of the tax law as such
25 article was in effect on December thirty-first, two thousand fourteen,
26 for which tax no exclusion or deduction was allowed in determining the
27 taxpayer's entire net income under this subchapter or subchapter three
28 of this chapter for any prior year;
29 (6) in the case of a taxpayer who is separately or as a partner of a
30 partnership doing an insurance business as a member of the New York
31 insurance exchange described in section six thousand two hundred one of
32 the insurance law, any item of income, gain, loss or deduction of such
33 business which is the taxpayer's distributive or pro rata share for
34 federal income tax purposes or which the taxpayer is required to take
35 into account separately for federal income tax purposes;
36 (7) that portion of wages and salaries paid or incurred for the taxa-
37 ble year for which a deduction is not allowed pursuant to the provisions
38 of section two hundred eighty C of the internal revenue code;
39 (8) for taxable years beginning after December thirty-first, nineteen
40 hundred eighty-one, except with respect to property which is a qualified
41 mass commuting vehicle described in subparagraph (D) of paragraph eight
42 of subsection (f) of section one hundred sixty-eight of the internal
43 revenue code, relating to qualified mass commuting vehicles, and proper-
44 ty of a taxpayer principally engaged in the conduct of an aviation,
45 steamboat, ferry or navigation business, or two or more of such busi-
46 nesses, which is placed in service before taxable years beginning in
47 nineteen hundred eighty-nine, any amount which is included in the
48 taxpayer's federal taxable income solely as a result of an election made
49 pursuant to the provisions of such paragraph eight as it was in effect
50 for agreements entered into prior to January first, nineteen hundred
51 eighty-four;
52 (9) for taxable years beginning after December thirty-first, nineteen
53 hundred eighty-one, except with respect to property which is a qualified
54 mass commuting vehicle described in subparagraph (D) of paragraph eight
55 of subsection (f) of section one hundred sixty-eight of the internal
56 revenue code, relating to qualified mass commuting vehicles, and proper-
S. 8578 522
1 ty of a taxpayer principally engaged in the conduct of an aviation,
2 steamboat, ferry or navigation business, or two or more of such busi-
3 nesses, which is placed in service before taxable years beginning in
4 nineteen hundred eighty-nine, any amount which the taxpayer could have
5 excluded from federal taxable income had it not made the election
6 provided for in such paragraph eight as it was in effect for agreements
7 entered into prior to January first, nineteen hundred eighty-four;
8 (10) the amount deductible pursuant to paragraph (j) of this subdivi-
9 sion;
10 (11) upon the disposition of property to which paragraph (j) of this
11 subdivision applies, the amount, if any, by which the aggregate of the
12 amounts described in subparagraph eleven of paragraph (b) of this subdi-
13 vision attributable to such property exceeds the aggregate of the
14 amounts described in paragraph (j) of this subdivision attributable to
15 such property;
16 (12) for taxable years ending after September tenth, two thousand one,
17 the amount deductible pursuant to paragraph (k) of this subdivision;
18 (13) the amount deductible pursuant to paragraph (o) of this subdivi-
19 sion;
20 (14) any amount excepted, for purposes of subsection (a) of section
21 one hundred eighteen of the internal revenue code, from the term
22 "contribution to the capital of the taxpayer" by paragraph two of
23 subsection (b) of section one hundred eighteen of the internal revenue
24 code;
25 (15) the amount of any gain added back to determine entire net income
26 in a previous taxable year pursuant to subparagraph nineteen of para-
27 graph (b) of this subdivision that is included in federal gross income
28 for the taxable year; and
29 (16) the amount of any grant received through either the COVID-19
30 pandemic small business recovery grant program, pursuant to section
31 sixteen-ff of the New York state urban development corporation act, or
32 the small business resilience grant program administered by the depart-
33 ment of small business services, to the extent the amount of either such
34 grant is included in federal taxable income.
35 (a-1) Notwithstanding any other provision of this subchapter, for
36 taxable years beginning on or after August first, two thousand two, in
37 the case of a taxpayer that is a partner in a partnership subject to the
38 tax imposed by chapter eleven of this title as a utility, as defined in
39 subdivision six of section 11-1101 of such chapter, entire net income
40 shall not include the taxpayer's distributive or pro rata share for
41 federal income tax purposes of any item of income, gain, loss or
42 deduction of such partnership, or any item of income, gain, loss or
43 deduction of such partnership that the taxpayer is required to take into
44 account separately for federal income tax purposes.
45 (b) Entire net income shall be determined without the exclusion,
46 deduction or credit of:
47 (1) the amount of any specific exemption or credit allowed in any law
48 of the United States imposing any tax on or measured by the income of
49 any corporation,
50 (2) any part of any income from dividends or interest on any kind of
51 stock, securities, or indebtedness, except as provided in clauses one
52 and two of paragraph (a) of this subdivision,
53 (3) taxes on or measured by profits or income paid or accrued to the
54 United States, any of its possessions or to any foreign country, includ-
55 ing taxes in lieu of any of the foregoing taxes otherwise generally
56 imposed by any foreign country or by any possession of the United
S. 8578 523
1 States, or taxes on or measured by profited or income paid or accrued to
2 the state or any subdivision thereof, including taxes paid or accrued
3 under article nine, nine-A, thirteen-A, twenty-four-A, or twenty-four-B
4 of the tax law or under article thirty-two of the tax law as such arti-
5 cle was in effect on December thirty-first, two thousand fourteen,
6 (3-a) taxes on or measured by profits or income, or which include
7 profits or income as a measure, paid or accrued to any other state of
8 the United States, or any political subdivision thereof, or to the
9 District of Columbia, including taxes expressly in lieu of any of the
10 foregoing taxes otherwise generally imposed by any other state of the
11 United States, or any political subdivision thereof, or the District of
12 Columbia;
13 (4) taxes imposed under this chapter,
14 (4-a) (A) the entire amount allowable as an exclusion or deduction for
15 stock transfer taxes imposed by article twelve of the tax law in deter-
16 mining the entire taxable income which the taxpayer is required to
17 report to the United States treasury department but only to the extent
18 that such taxes are incurred and paid in market making transactions, and
19 (B) the amount allowed as an exclusion or deduction for sales and use
20 taxes imposed by section eleven hundred seven of the tax law in deter-
21 mining the entire taxable income which the taxpayer is required to
22 report to the United States treasury department but only such portion of
23 such exclusion or deduction which is not in excess of the amount of the
24 credit allowed pursuant to subdivision twelve of section 11-604 of this
25 subchapter,
26 (4-b) the amount allowed as an exclusion or a deduction imposed by the
27 tax law in determining the entire taxable income which the taxpayer is
28 required to report to the United States treasury department but only
29 such portion of such exclusion or deduction which is not in excess of
30 the amount of the credit allowed pursuant to subdivision thirteen of
31 section 11-604 of this subchapter,
32 (4-c) the amount allowed as an exclusion or a deduction imposed by the
33 tax law in determining the entire taxable income which the taxpayer is
34 required to report to the United States treasury department but only
35 such portion of such exclusion or deduction which is not in excess of
36 the amount of the credit allowed pursuant to subdivision fourteen of
37 section 11-604 of this subchapter,
38 (4-d) the amount allowed as an exclusion or deduction for sales and
39 use taxes imposed by section eleven hundred seven of the tax law in
40 determining the entire taxable income which the taxpayer is required to
41 report to the United States Treasury Department, but only such portion
42 of such exclusion or deduction which is not in excess of the amount of
43 the credit allowed pursuant to subdivision fifteen of section 11-604 of
44 this chapter,
45 (4-g) The amount allowed as an exclusion or deduction for sales and
46 use taxes imposed by section eleven hundred seven of the tax law, or for
47 any interest imposed in connection therewith, in determining the entire
48 taxable income which the taxpayer is required to report to the United
49 States treasury department but only such portion of such exclusion or
50 deduction which is not in excess of the amount of the credit allowed
51 pursuant to subdivision seventeen-a of section 11-604 of this subchap-
52 ter.
53 (6) in the discretion of the commissioner of finance, any amount of
54 interest directly or indirectly and any other amount directly or indi-
55 rectly attributable as a carrying charge or otherwise to subsidiary
56 capital or to income, gains or losses from subsidiary capital,
S. 8578 524
1 (7) any amount by reason of the granting, issuing or assuming of a
2 restricted stock option, as defined in the internal revenue code of
3 nineteen hundred fifty-four, or by reason of the transfer of the share
4 of stock upon the exercise of the option, unless such share is disposed
5 of by the grantee of the option within two years from the date of the
6 granting of the option or within six months after the transfer of such
7 share to the grantee,
8 (8) in the case of a taxpayer who is separately or as a partner of a
9 partnership doing an insurance business as a member of the New York
10 insurance exchange described in section six thousand two hundred one of
11 the insurance law, such taxpayer's distributive or pro rata share of the
12 allocated entire net income of such business as determined under
13 sections fifteen hundred three and fifteen hundred four of the tax law,
14 provided however, in the event such allocated entire net income is a
15 loss, such taxpayer's distributive or pro rata share of such loss shall
16 not be subtracted from federal taxable income in computing entire net
17 income under this subdivision,
18 (9) for taxable years beginning after December thirty-first, nineteen
19 hundred eighty-one, except with respect to property which is a qualified
20 mass commuting vehicle described in subparagraph (D) of paragraph eight
21 of subsection (f) of section one hundred sixty-eight of the internal
22 revenue code, relating to qualified mass commuting vehicles, and proper-
23 ty of a taxpayer principally engaged in the conduct of an aviation,
24 steamboat, ferry or navigation business, or two or more of such busi-
25 nesses, which is placed in service before taxable years beginning in
26 nineteen hundred eighty-nine, any amount which the taxpayer claimed as a
27 deduction in computing its federal taxable income solely as a result of
28 an election made pursuant to the provisions of such paragraph eight as
29 it was in effect for agreements entered into prior to January first,
30 nineteen hundred eighty-four,
31 (10) for taxable years beginning after December thirty-first, nineteen
32 hundred eighty-one, except with respect to property which is a qualified
33 mass commuting vehicle described in subparagraph (D) of paragraph eight
34 of subsection (f) of section one hundred sixty-eight of the internal
35 revenue code, relating to qualified mass commuting vehicles, and proper-
36 ty of a taxpayer principally engaged in the conduct of an aviation,
37 steamboat, ferry or navigation business, or two or more of such busi-
38 nesses, which is placed in service before taxable years beginning in
39 nineteen hundred eighty-nine, any amount which the taxpayer would have
40 been required to include in the computation of its federal taxable
41 income had it not made the election permitted pursuant to such paragraph
42 eight as it was in effect for agreements entered into prior to January
43 first, nineteen hundred eighty-four,
44 (11) in the case of property placed in service in taxable years begin-
45 ning before nineteen hundred ninety-four, for taxable years beginning
46 after December thirty-first, nineteen hundred eighty-one, except with
47 respect to property subject to the provisions of section two hundred
48 eighty-F of the internal revenue code, property subject to the
49 provisions of section one hundred sixty-eight of the internal revenue
50 code which is placed in service in this state in taxable years beginning
51 after December thirty-first, nineteen hundred eighty-four and property
52 of a taxpayer principally engaged in the conduct of an aviation, steam-
53 boat, ferry or navigation business, or two or more of such businesses,
54 which is placed in service before taxable years beginning in nineteen
55 hundred eighty-nine, the amount allowable as a deduction determined
56 under section one hundred sixty-eight of the internal revenue code,
S. 8578 525
1 (12) upon the disposition of property to which paragraph (j) of this
2 subdivision applies, the amount, if any, by which the aggregate of the
3 amounts described in such paragraph (j) attributable to such property
4 exceeds the aggregate of the amounts described in subparagraph eleven of
5 this paragraph attributable to such property,
6 (13) for taxable years ending after September tenth, two thousand one,
7 in the case of qualified property described in paragraph two of
8 subsection k of section one hundred sixty-eight of the internal revenue
9 code, other than qualified resurgence zone property described in para-
10 graph (m) of this subdivision, and other than qualified New York Liberty
11 Zone property described in paragraph two of subsection b of section
12 fourteen hundred L of the internal revenue code, without regard to
13 clause (i) of subparagraph (C) of such paragraph, the amount allowable
14 as a deduction under section one hundred sixty-seven of the internal
15 revenue code,
16 (14) for taxable years beginning on or after January first, two thou-
17 sand four, in the case of a taxpayer that is not an eligible farmer as
18 defined in subsection (n) of section six hundred six of the tax law, the
19 amount allowable as a deduction under sections one hundred seventy-nine,
20 one hundred sixty-seven and one hundred sixty-eight of the internal
21 revenue code with respect to a sport utility vehicle that is not a
22 passenger automobile as defined in paragraph five of subsection (d) of
23 section two hundred eighty F of the internal revenue code,
24 (15) the amount of any deduction allowed pursuant to section one
25 hundred ninety-nine of the internal revenue code,
26 (16) the amount of any federal deduction for taxes imposed under arti-
27 cle twenty-three of the tax law,
28 (17) the amount of any federal deduction that would have been allowed
29 pursuant to subparagraph (A) of paragraph one of subdivision (a) of
30 section two hundred fifty of the internal revenue code if the taxpayer
31 had not made an election under subchapter s of chapter one of the inter-
32 nal revenue code,
33 (18) for taxable years beginning in two thousand nineteen and two
34 thousand twenty, the amount of the increase in the federal interest
35 deduction allowed pursuant to paragraph ten of subdivision (j) of
36 section one hundred sixty-three of the internal revenue code, and
37 (19) the amount of any gain excluded from federal gross income for the
38 taxable year by subparagraph (A) of paragraph (1) of subsection (a) of
39 section one thousand four hundred Z-two of the internal revenue code.
40 (c) Entire net income shall include income within and without the
41 United States;
42 (c-1)(1) Notwithstanding any other provision of this subchapter, in
43 the case of a taxpayer which is a foreign air carrier holding a foreign
44 air carrier permit issued by the United States department of transporta-
45 tion pursuant to section four hundred two of the federal aviation act of
46 nineteen hundred fifty-eight, as amended, and which is qualified under
47 subparagraph two of this paragraph, entire net income shall not include,
48 and shall be computed without the deduction of, amounts directly or
49 indirectly attributable to, (i) any income derived from the interna-
50 tional operation of aircraft as described in and subject to the
51 provisions of section eight hundred eighty-three of the internal revenue
52 code, (ii) income without the United States which is derived from the
53 operation of aircraft, and (iii) income without the United States which
54 is of a type described in subdivision (a) of section eight hundred
55 eighty-one of the internal revenue code except that it is derived from
56 sources without the United States. Entire net income shall include
S. 8578 526
1 income described in clauses (i), (ii) and (iii) of this subparagraph in
2 the case of taxpayers not described in this subparagraph.
3 (2) A taxpayer is qualified under this subparagraph if air carriers
4 organized in the United States and operating in the foreign country or
5 countries in which the taxpayer has its major base of operations and in
6 which it is organized, resident or headquartered, if not in the same
7 country as its major base of operations, are not subject to any income
8 tax or other tax based on or measured by income or receipts imposed by
9 such foreign country or countries or any political subdivision thereof,
10 or if so subject to such tax, are provided an exemption from such tax
11 equivalent to that provided for in this paragraph.
12 (d) The commissioner of finance may, whenever necessary in order prop-
13 erly to reflect the entire net income of any taxpayer, determine the
14 year or period in which any item of income or deduction shall be
15 included, without regard to the method of accounting employed by the
16 taxpayer;
17 (e) The entire net income of any bridge commission created by act of
18 congress to construct a bridge across an international boundary means
19 its gross income less the expense of maintaining and operating its prop-
20 erties, the annual interest upon its bonds and other obligations, and
21 the annual charge for the retirement of such bonds or obligations at
22 maturity;
23 (f) A net operating loss deduction shall be allowed which shall be the
24 same as the net operating loss deduction allowed under section one
25 hundred seventy-two of the internal revenue code or which would have
26 been allowed if the taxpayer had not made an election under subchapter s
27 of chapter one of the internal revenue code, except that in every
28 instance where such deduction is allowed under this subchapter:
29 (1) any net operating loss included in determining such deduction
30 shall be adjusted to reflect the inclusions and exclusions from entire
31 net income pursuant to paragraphs (a), (b), (g) and (h) of this subdivi-
32 sion,
33 (2) such deductions shall not include any net operating loss sustained
34 during any taxable year in which the taxpayer was not subject to the tax
35 imposed by this subchapter,
36 (3) such deduction shall not exceed the deduction for the taxable year
37 allowed under section one hundred seventy-two of the internal revenue
38 code, or the deduction for the taxable year which would have been
39 allowed if the taxpayer had not made an election under subchapter s of
40 chapter one of the internal revenue code,
41 (4) any net operating loss for a taxable year beginning in nineteen
42 hundred eighty-one shall be computed without regard to the deduction
43 allowed with respect to recovery property under section one hundred
44 sixty-eight of the internal revenue code; in lieu of such deduction, a
45 taxpayer shall be allowed for such taxable year with respect to such
46 property the depreciation deduction allowable under section one hundred
47 sixty-seven of such code as such section was in full force and effect on
48 December thirty-first, nineteen hundred eighty, and
49 (5) the net operating loss deduction allowed under section one hundred
50 seventy-two of the internal revenue code shall for purposes of this
51 paragraph be determined as if the taxpayer had elected under such
52 section to relinquish the entire carryback period with respect to net
53 operating losses, except with respect to the first ten thousand dollars
54 of each of such losses, sustained during taxable years ending after June
55 thirtieth, nineteen hundred eighty-nine.
S. 8578 527
1 (6) Notwithstanding any other provision of this subchapter to the
2 contrary, for taxable years beginning before January first, two thousand
3 twenty-one, any amendment to section one hundred seventy-two of the
4 internal revenue code made after March first, two thousand twenty shall
5 not apply to this subchapter.
6 (g) At the election of the taxpayer, a deduction shall be allowed for
7 expenditures paid or incurred during the taxable year for the
8 construction, reconstruction, erection or improvement of industrial
9 waste treatment facilities and air pollution control facilities.
10 (1)(A) The term "industrial waste treatment facilities" shall mean
11 facilities for the treatment, neutralization or stabilization of indus-
12 trial waste, as the term "industrial waste" is defined in section
13 17-0105 of the environmental conservation law, from a point immediately
14 preceding the point of such treatment, neutralization or stabilization
15 to the point of disposal, including the necessary pumping and transmit-
16 ting facilities, but excluding such facilities installed for the primary
17 purpose of salvaging materials which are usable in the manufacturing
18 process or are marketable.
19 (B) The term "air pollution control facilities" shall mean facilities
20 which remove, reduce, or render less noxious air contaminants emitted
21 from an air contamination source, as the terms "air contaminant" and
22 "air contamination source" are defined in section 19-0107 of the envi-
23 ronmental conservation law, from a point immediately preceding the point
24 of such removal, reduction or rendering to the point of discharge of
25 air, meeting emission standards as established by the air pollution
26 control board, but excluding such facilities installed for the primary
27 purpose of salvaging materials which are usable in the manufacturing
28 process or are marketable and excluding those facilities which rely for
29 their efficacy on dilution, dispersion or assimilation of air contam-
30 inants in the ambient air after emission.
31 (2) However, such deduction shall be allowed only (A) with respect to
32 tangible property which is depreciable, pursuant to section one hundred
33 sixty-seven of the internal revenue code, having a situs in the city and
34 used in the taxpayer's trade or business, the construction, recon-
35 struction, erection or improvement of which, in the case of industrial
36 waste treatment facilities, is initiated on or after January first,
37 nineteen hundred sixty-six, and only for expenditures paid or incurred
38 prior to January first, nineteen hundred seventy-two, or which, in the
39 case of air pollution control facilities, is initiated on or after Janu-
40 ary first, nineteen hundred sixty-six, and
41 (B) on condition that such facilities have been certified by the state
42 commissioner of environmental conservation or the state commissioner's
43 designated representative, in the same manner as provided for in section
44 17-0707 or 19-0309 of the environmental conservation law, as applicable,
45 as complying with applicable provisions of the environmental conserva-
46 tion law, the state sanitary code and regulations, permits or orders
47 issued pursuant thereto, and
48 (C) on condition that entire net income for the taxable year and all
49 succeeding taxable years be computed without any deductions for such
50 expenditures or for depreciation of the same property other than the
51 deductions allowed by this paragraph except to the extent that the basis
52 of the property may be attributable to factors other than such expendi-
53 tures, or in case a deduction is allowable pursuant to this paragraph
54 for only a part of such expenditures, on condition that any deduction
55 allowed for federal income tax purposes for such expenditures or for
56 depreciation of the same property be proportionately reduced in comput-
S. 8578 528
1 ing entire net income for the taxable year and all succeeding taxable
2 years, and
3 (D) where the election provided for in paragraph (d) of subdivision
4 three of section 11-604 of this subchapter has not been exercised in
5 respect to the same property.
6 (3)(A) If expenditures in respect to an industrial waste treatment
7 facility or an air pollution control facility have been deducted as
8 provided herein and if within ten years from the end of the taxable year
9 in which such deduction was allowed such property or any part thereof is
10 used for the primary purpose of salvaging materials which are usable in
11 the manufacturing process or are marketable, the taxpayer shall report
12 such change of use in its report for the first taxable year during which
13 it occurs, and the commissioner of finance may recompute the tax for the
14 year or years for which such deduction was allowed and any carryback or
15 carryover year, and may assess any additional tax resulting from such
16 recomputation within the time fixed by paragraph (h) of subdivision
17 three of section 11-674 of this chapter.
18 (B) If a deduction is allowed as herein provided for expenditures paid
19 or incurred during any taxable year on the basis of a temporary certif-
20 icate of compliance issued pursuant to the environmental conservation
21 law and if the taxpayer fails to obtain a permanent certificate of
22 compliance upon completion of the facilities with respect to which such
23 temporary certificate was issued, the taxpayer shall report such failure
24 in its report for the taxable year during which such facilities are
25 completed, and the commissioner of finance may recompute the tax for the
26 year or years for which such deduction was allowed and any carryback or
27 carryover year, and may assess any additional tax resulting from such
28 recomputation within the time fixed by paragraph (h) of subdivision
29 three of section 11-674 of this chapter.
30 (4) In any taxable year when property is sold or otherwise disposed
31 of, with respect to which a deduction has been allowed pursuant to this
32 paragraph, such deduction shall be disregarded in computing gain or
33 loss, and the gain or loss on the sale or other disposition of such
34 property shall be the gain or loss entering into the computation of
35 entire taxable income which the taxpayer is required to report to the
36 United States treasury for such taxable year;
37 (h) With respect to gain derived from the sale or other disposition of
38 any property acquired prior to January first, nineteen hundred sixty-
39 six; which had a federal adjusted basis on such date, or on the date of
40 its sale or other disposition prior to January first, nineteen hundred
41 sixty-six, lower than its fair market value on January first, nineteen
42 hundred sixty-six or the date of its sale or other disposition prior
43 thereto, except property described in subsections one and four of
44 section twelve hundred twenty-one of the internal revenue code, there
45 shall be deducted from entire net income, the difference between (1) the
46 amount of the taxpayer's federal taxable income, and (2) the amount of
47 the taxpayer's federal taxable income, if smaller than the amount
48 described in subparagraph one of this paragraph computed as if the
49 federal adjusted basis of each such property on the sale or other dispo-
50 sition of which gain was derived, on the date of the sale or other
51 disposition had been equal to either (A) its fair market value on Janu-
52 ary first, nineteen hundred sixty-six or the date of its sale or other
53 disposition prior to January first, nineteen hundred sixty-six, plus or
54 minus all adjustments to basis made with respect to such property for
55 federal income tax purposes for periods on and after January first,
56 nineteen hundred sixty-six or (B) the amount realized from its sale or
S. 8578 529
1 disposition, whichever is lower; provided, however, that the total
2 modification provided by this paragraph shall not exceed the amount of
3 the taxpayer's net gain from the sale or other disposition of all such
4 property.
5 (i) If the period covered by a report under this subchapter is other
6 than the period covered by the report of the United States treasury
7 department, entire net income shall be determined by multiplying the
8 federal taxable income, as adjusted pursuant to the provisions of this
9 subchapter, by the number of calendar months or major parts thereof
10 covered by the report under this subchapter and dividing by the number
11 of calendar months or major parts thereof covered by the report to such
12 department.
13 If it shall appear that such method of determining entire net income
14 does not properly reflect the taxpayer's income during the period
15 covered by the report under this subchapter, the commissioner of finance
16 shall be authorized in his or her discretion to determine such entire
17 net income solely on the basis of the taxpayer's income during the peri-
18 od covered by its report under this subchapter.
19 (j) In the case of property placed in service in taxable years begin-
20 ning before nineteen hundred ninety-four, for taxable years beginning
21 after December thirty-first, nineteen hundred eighty-one, except with
22 respect to property subject to the provisions of section two hundred
23 eighty-F of the internal revenue code and property subject to the
24 provisions of section one hundred sixty-eight of the internal revenue
25 code which is placed in service in this state in taxable years beginning
26 after December thirty-first, nineteen hundred eighty-four, and provided
27 a deduction has not been excluded from entire net income pursuant to
28 subparagraph nine of paragraph (b) of this subdivision, a taxpayer shall
29 be allowed with respect to property which is subject to the provisions
30 of section one hundred sixty-eight of the internal revenue code the
31 depreciation deduction allowable under section one hundred sixty-seven
32 of the internal revenue code as such section would have applied to prop-
33 erty placed in service on December thirty-first, nineteen hundred
34 eighty. This paragraph shall not apply to property of a taxpayer princi-
35 pally engaged in the conduct of an aviation, steamboat, ferry or naviga-
36 tion business, or two or more of such businesses, which is placed in
37 service before taxable years beginning in nineteen hundred eighty-nine.
38 (k) for taxable years ending after September tenth, two thousand one,
39 in the case of qualified property described in paragraph two of
40 subsection k of section one hundred sixty-eight of the internal revenue
41 code, other than qualified resurgence zone property described in para-
42 graph (m) of this subdivision, and other than qualified New York Liberty
43 Zone property described in paragraph two of subsection b of section
44 fourteen hundred L of the internal revenue code, without regard to
45 clause (i) of subparagraph (C) of such paragraph, the depreciation
46 deduction allowable under section one hundred sixty-seven as such
47 section would have applied to such property had it been acquired by the
48 taxpayer on September tenth, two thousand one, provided, however, that
49 for taxable years beginning on or after January first, two thousand
50 four, in the case of a passenger motor vehicle or a sport utility vehi-
51 cle subject to the provisions of paragraph (o) of this subdivision, the
52 limitation under clause (i) of subparagraph (A) of paragraph one of
53 subdivision (a) of section two hundred eighty-F of the internal revenue
54 code applicable to the amount allowed as a deduction under this para-
55 graph shall be determined as of the date such vehicle was placed in
56 service and not as of September tenth, two thousand one.
S. 8578 530
1 (l) for taxable years ending after September tenth, two thousand one,
2 upon the disposition of property to which paragraph (k) of this subdivi-
3 sion applies, the amount of any gain or loss includible in entire net
4 income shall be adjusted to reflect the inclusions and exclusions from
5 entire net income pursuant to subparagraph twelve of paragraph (a) and
6 subparagraph thirteen of paragraph (b) of this subdivision attributable
7 to such property.
8 (m) for purposes of this paragraph and paragraph (l) of this subdivi-
9 sion, qualified resurgence zone property shall mean qualified property
10 described in paragraph two of subsection k of section one hundred
11 sixty-eight of the internal revenue code substantially all of the use of
12 which is in the resurgence zone, as defined in this paragraph, and is in
13 the active conduct of a trade or business by the taxpayer in such zone,
14 and the original use of which in the resurgence zone commences with the
15 taxpayer after September tenth, two thousand one. The resurgence zone
16 shall mean the area of New York county bounded on the south by a line
17 running from the intersection of the Hudson River with the Holland
18 Tunnel, and running thence east to Canal Street, then running along the
19 centerline of Canal Street to the intersection of the Bowery and Canal
20 Street, running thence in a southeasterly direction diagonally across
21 Manhattan Bridge Plaza, to the Manhattan Bridge, and thence along the
22 centerline of the Manhattan Bridge to the point where the centerline of
23 the Manhattan Bridge would intersect with the easterly bank of the East
24 River, and bounded on the north by a line running from the intersection
25 of the Hudson River with the Holland Tunnel and running thence north
26 along West Avenue to the intersection of Clarkson Street then running
27 east along the centerline of Clarkson Street to the intersection of
28 Washington Avenue, then running south along the centerline of Washington
29 Avenue to the intersection of West Houston Street, then east along the
30 centerline of West Houston Street, then at the intersection of the
31 Avenue of the Americas continuing east along the centerline of East
32 Houston Street to the easterly bank of the East River.
33 (n) Related members expense add back.
34 (1) Definitions. (A) Related member. "Related member" means a related
35 person as defined in subparagraph (c) of paragraph three of subsection
36 (b) of section four hundred sixty-five of the internal revenue code,
37 except that "fifty percent" shall be substituted for "ten percent".
38 (B) Effective rate of tax. "Effective rate of tax" means, as to any
39 city, the maximum statutory rate of tax imposed by the city on or meas-
40 ured by a related member's net income multiplied by the apportionment
41 percentage, if any, applicable to the related member under the laws of
42 said jurisdiction. For purposes of this definition, the effective rate
43 of tax as to any city is zero where the related member's net income tax
44 liability in said city is reported on a combined or consolidated return
45 including both the taxpayer and the related member where the reported
46 transactions between the taxpayer and the related member are eliminated
47 or offset. Also, for purposes of this definition, when computing the
48 effective rate of tax for a city in which a related member's net income
49 is eliminated or offset by a credit or similar adjustment that is
50 dependent upon the related member either maintaining or managing intan-
51 gible property or collecting interest income in that city, the maximum
52 statutory rate of tax imposed by said city shall be decreased to reflect
53 the statutory rate of tax that applies to the related member as effec-
54 tively reduced by such credit or similar adjustment.
55 (C) Royalty payments. Royalty payments are payments directly connected
56 to the acquisition, use, maintenance or management, ownership, sale,
S. 8578 531
1 exchange, or any other disposition of licenses, trademarks, copyrights,
2 trade names, trade dress, service marks, mask works, trade secrets,
3 patents and any other similar types of intangible assets as determined
4 by the commissioner of finance, and include amounts allowable as inter-
5 est deductions under section one hundred sixty-three of the internal
6 revenue code to the extent such amounts are directly or indirectly for,
7 related to or in connection with the acquisition, use, maintenance or
8 management, ownership, sale, exchange or disposition of such intangible
9 assets.
10 (D) Valid business purpose. A valid business purpose is one or more
11 business purposes, other than the avoidance or reduction of taxation,
12 which alone or in combination constitute the primary motivation for some
13 business activity or transaction, which activity or transaction changes
14 in a meaningful way, apart from tax effects, the economic position of
15 the taxpayer. The economic position of the taxpayer includes an increase
16 in the market share of the taxpayer, or the entry by the taxpayer into
17 new business markets.
18 (2) Royalty expense add backs. (A) For the purpose of computing entire
19 net income or other applicable taxable basis, a taxpayer must add back
20 royalty payments directly or indirectly paid, accrued, or incurred in
21 connection with one or more direct or indirect transactions with one or
22 more related members during the taxable year to the extent deductible in
23 calculating federal taxable income.
24 (B) (i) The adjustment required in this paragraph shall not apply to
25 the portion of the royalty payment that the taxpayer establishes, by
26 clear and convincing evidence of the type and in the form specified by
27 the commissioner of finance, meets all of the following requirements:
28 (I) the related member was subject to tax in this city or another city
29 within the United States or a foreign nation or some combination thereof
30 on a tax base that included the royalty payment paid, accrued or
31 incurred by the taxpayer; (II) the related member during the same taxa-
32 ble year directly or indirectly paid, accrued or incurred such portion
33 to a person that is not a related member; and (III) the transaction
34 giving rise to the royalty payment between the taxpayer and the related
35 member was undertaken for a valid business purpose.
36 (ii) The adjustment required in this paragraph shall not apply if the
37 taxpayer establishes, by clear and convincing evidence of the type and
38 in the form specified by the commissioner of finance, that: (I) the
39 related member was subject to tax on or measured by its net income in
40 this city or another city within the United States, or some combination
41 thereof; (II) the tax base for said tax included the royalty payment
42 paid, accrued or incurred by the taxpayer; and (III) the aggregate
43 effective rate of tax applied to the related member in those jurisdic-
44 tions is no less than eighty percent of the statutory rate of tax that
45 applied to the taxpayer under section 11-604 of this subchapter for the
46 taxable year.
47 (iii) The adjustment required in this paragraph shall not apply if the
48 taxpayer establishes, by clear and convincing evidence of the type and
49 in the form specified by the commissioner of finance, that: (I) the
50 royalty payment was paid, accrued or incurred to a related member organ-
51 ized under the laws of a country other than the United States; (II) the
52 related member's income from the transaction was subject to a comprehen-
53 sive income tax treaty between such country and the United States; (III)
54 the related member was subject to tax in a foreign nation on a tax base
55 that included the royalty payment paid, accrued or incurred by the
56 taxpayer; (IV) the related member's income from the transaction was
S. 8578 532
1 taxed in such country at an effective rate of tax at least equal to that
2 imposed by this city; and (V) the royalty payment was paid, accrued or
3 incurred pursuant to a transaction that was undertaken for a valid busi-
4 ness purpose and using terms that reflect an arm's length relationship.
5 (iv) The adjustment required in this paragraph shall not apply if the
6 taxpayer and the commissioner of finance agree in writing to the appli-
7 cation or use of alternative adjustments or computations. The commis-
8 sioner of finance may, in his or her discretion, agree to the applica-
9 tion or use of alternative adjustments or computations when he or she
10 concludes that in the absence of such agreement the income of the
11 taxpayer would not be properly reflected.
12 (o) For taxable years beginning on or after January first, two thou-
13 sand four, in the case of a taxpayer that is not an eligible farmer as
14 defined in subsection (n) of section six hundred six of the tax law, the
15 deductions allowable under sections one hundred seventy-nine, one
16 hundred sixty-seven and one hundred sixty-eight of the internal revenue
17 code with respect to a sport utility vehicle that is not a passenger
18 automobile as defined in paragraph five of subsection (d) of section two
19 hundred eighty-F of the internal revenue code, determined as if such
20 sport utility vehicle were a passenger automobile as defined in such
21 paragraph five. For purposes of paragraph (k) and subparagraph thirteen
22 of paragraph (b) of this subdivision, the terms qualified resurgence
23 zone property and qualified New York Liberty Zone property described in
24 paragraph two of subsection b of section fourteen hundred-L of the
25 internal revenue code shall not include any sport utility vehicle that
26 is not a passenger automobile as defined in paragraph five of subsection
27 (d) of section two hundred eighty-F of the internal revenue code.
28 (p) Upon the disposition of property to which paragraph (o) of this
29 subdivision applies, the amount of any gain or loss includible in entire
30 net income shall be adjusted to reflect the inclusions and exclusions
31 from entire net income pursuant to subparagraph thirteen of paragraph
32 (a) and subparagraph fourteen of paragraph (b) of this subdivision
33 attributable to such property.
34 9. (a) The term "calendar year" means a period of twelve calendar
35 months, or any shorter period beginning on the date the taxpayer becomes
36 subject to the tax imposed by this subchapter, ending on the thirty-
37 first day of December, provided the taxpayer keeps its books on the
38 basis of such period or on the basis of any period ending on any day
39 other than the last day of a calendar month, or provided the taxpayer
40 does not keep books, and includes, in case the taxpayer changes the
41 period on the basis of which it keeps its books from a fiscal year to a
42 calendar year, the period from the close of its last old fiscal year up
43 to and including the following December thirty-first.
44 (b) The term "fiscal year" means a period of twelve calendar months,
45 or any shorter period beginning on the date the taxpayer becomes subject
46 to the tax imposed by this subchapter, ending on the last day of any
47 month other than December, provided the taxpayer keeps its books on the
48 basis of such period, and includes, in case the taxpayer changes the
49 period on the basis of which it keeps its books from a calendar year to
50 a fiscal year or from one fiscal year to another fiscal year, the period
51 from the close of its last old calendar or fiscal year up to the date
52 designated as the close of its new fiscal year.
53 10. The term "tangible personal property" means corporeal personal
54 property, such as machinery, tools, implements, goods, wares and
55 merchandise, and does not mean money, deposits in banks, shares of
S. 8578 533
1 stock, bonds, notes, credits or evidence of an interest property and
2 evidences of debt.
3 § 11-603 Imposition of tax; exemptions. 1. For the privilege of doing
4 business, or of employing capital, or of owning or leasing property in
5 the city in a corporate or organized capacity, or of maintaining an
6 office in the city, for all or any part of each of its fiscal or calen-
7 dar years, every domestic or foreign corporation, except corporations
8 specified in subdivision four of this section, shall annually pay a tax,
9 upon the basis of its entire net income, or upon such other basis as may
10 be applicable as provided by this section, for such fiscal or calendar
11 year or part thereof, on a report which shall be filed, except as
12 provided by this section, on or before the fifteenth day of March next
13 succeeding the close of each such year, or, in the case of a taxpayer
14 which reports on the basis of a fiscal year, within two and one-half
15 months after the close of such fiscal year, and shall be paid as
16 provided by this section.
17 2. A corporation shall not be deemed to be doing business, employing
18 capital, owning or leasing property, or maintaining an office in the
19 city, for the purposes of this subchapter, by reason of (a) the mainte-
20 nance of cash balances with banks or trust companies in the city, or (b)
21 the ownership of shares of stock or securities kept in the city, if kept
22 in a safe deposit box, safe, vault or other receptacle rented for the
23 purpose, or if pledged as collateral security, or if deposited with one
24 or more banks or trust companies, or brokers who are members of a recog-
25 nized security exchange, in safekeeping or custody accounts, or (c) the
26 taking of any action by any such bank or trust company or broker, which
27 is incidental to the rendering of safekeeping or custodian service to
28 such corporation, or (d) the maintenance of an office in the city by one
29 or more officers or directors of the corporation who are not employees
30 of the corporation if the corporation otherwise is not doing business in
31 the city, and does not employ capital or own or lease property in the
32 city, or (e) the keeping of books or records of a corporation in the
33 city if such books or records are not kept by employees of such corpo-
34 ration and such corporation does not otherwise do business, employ capi-
35 tal, own or lease property or maintain an office in the city, or (f) any
36 combination of the activities described in this subdivision.
37 2-a. An alien corporation shall not be deemed to be doing business,
38 employing capital, owning or leasing property, or maintaining an office
39 in the city, for the purposes of this subchapter, if its activities in
40 the city are limited solely to (a) investing or trading in stocks and
41 securities for its own account within the meaning of clause (ii) of
42 subparagraph (A) of paragraph (2) of subsection (b) of section eight
43 hundred sixty-four of the internal revenue code or (b) investing or
44 trading in commodities for its own account within the meaning of clause
45 (ii) of subparagraph (B) of paragraph (2) of subsection (b) of section
46 eight hundred sixty-four of the internal revenue code or (c) any combi-
47 nation of activities described in paragraphs (a) and (b) of this subdi-
48 vision. For purposes of this subdivision, an alien corporation is a
49 corporation organized under the laws of a country, or any political
50 subdivision thereof, other than the United States.
51 3. Any receiver, referee, trustee, assignee or other fiduciary, or
52 any officer or agent appointed by any court, who conducts the business
53 of any corporation, shall be subject to the tax imposed by this subchap-
54 ter in the same manner and to the same extent as if the business were
55 conducted by the agents or officers of such corporation. A dissolved
S. 8578 534
1 corporation which continues to conduct business shall also be subject to
2 the tax imposed by this subchapter.
3 4. (a) Corporations subject to tax under subchapter three of this
4 chapter or under chapter eleven of this title, any trust company organ-
5 ized under a law of this state all of the stock of which is owned by not
6 less than twenty savings banks organized under a law of this state, bank
7 holding companies filing a combined return in accordance with subdivi-
8 sion (f) of section 11-646 of this chapter, a captive REIT or a captive
9 RIC filing a combined return under subdivision (f) of section 11-646 of
10 this chapter, housing companies organized and operating pursuant to the
11 provisions of article two of the private housing finance law, housing
12 development fund companies organized pursuant to the provisions of arti-
13 cle eleven of the private housing finance law, corporations described in
14 section three of the tax law, a corporation principally engaged in the
15 operation of marine vessels whose activities in the city are limited
16 exclusively to the use of property in interstate or foreign commerce,
17 provided, however, such a corporation will not be subject to tax under
18 this subchapter solely because it maintains an office in the city, or
19 employs capital in the city, in connection with such use of property, a
20 corporation principally engaged in the conduct of a ferry business and
21 operating between any of the boroughs of the city under a lease granted
22 by the city and a corporation principally engaged in the conduct of an
23 aviation, steamboat, ferry or navigation business, or two or more of
24 such businesses, all of the capital stock of which is owned by a munici-
25 pal corporation of this state, shall not be subject to tax under this
26 subchapter; provided, however, that any corporation, other than (1) a
27 utility corporation subject to the supervision of the state department
28 of public service, and (2) for taxable years beginning on or after
29 August first, two thousand two, a utility as defined in subdivision six
30 of section 11-1101 of this title, which is subject to tax under chapter
31 eleven of this title as a vendor of utility services shall be subject to
32 tax under this subchapter, but in computing the tax imposed by this
33 section pursuant to the provisions of clause one of subparagraph (a) of
34 paragraph A of subdivision one of section 11-604 of this subchapter,
35 business income allocated to the city pursuant to paragraph (a) of
36 subdivision three of such section shall be reduced by the percentage
37 which such corporation's gross operating income subject to tax under
38 chapter eleven of this title is of its gross operating income.
39 (b) The term "gross operating income", when used in paragraph (a) of
40 this subdivision, means receipts received in or by reason of any trans-
41 action had and consummated in the city, including cash, credits and
42 property of any kind or nature, whether or not such transaction is made
43 for profit, without any deduction therefrom on account of the cost of
44 the property sold, the cost of materials used, labor or other services,
45 delivery costs or any other costs whatsoever, interest or discount paid
46 or any other expenses whatsoever.
47 (c) If it shall appear to the commissioner of finance that the appli-
48 cation of the proviso of paragraph (a) of this subdivision, does not
49 fairly and equitably reflect the portion of the taxpayer's business
50 income allocable to the city which is attributable to its city activ-
51 ities which are not taxable under chapter eleven of this title, the
52 commissioner may prescribe other means or methods of determining such
53 portion, including the use of the books and records of the taxpayer, if
54 the commissioner finds that such means or methods used in keeping them
55 fairly and equitably reflect such portion.
S. 8578 535
1 5. The tax imposed by subdivision one of this section, with the
2 modifications provided by subdivision six of this section, is imposed
3 for each calendar or fiscal year beginning with calendar or fiscal years
4 ending in or with the calendar year nineteen hundred sixty-six.
5 6. (a) The tax for any taxable year ending prior to December thirty-
6 first, nineteen hundred sixty-six shall be an amount equal to the tax
7 imposed by subdivision one of this section for such taxable year, multi-
8 plied by the number of months, or major portions thereof, in such taxa-
9 ble year which occur after December thirty-first, nineteen hundred
10 sixty-five and divided by the number of months, or major portions there-
11 of, in such taxable year.
12 (b) In lieu of the method of computation of tax prescribed in para-
13 graph (a) of this subdivision, if the taxpayer maintained adequate
14 records for the portion of any taxable year ending prior to December
15 thirty-first, nineteen hundred sixty-six, which portion falls within the
16 calendar year nineteen hundred sixty-six, it may elect to compute the
17 tax for such taxable year by determining entire net income on the basis
18 of the entire taxable income which it would have reported for federal
19 income tax purposes had it filed a federal income tax return for a taxa-
20 ble year beginning January first, nineteen hundred sixty-six and ending
21 with the close of its actual taxable year and such taxable year begin-
22 ning January first, nineteen hundred sixty-six, shall be deemed to be
23 the period covered by its report, except that in computing such tax any
24 portion of a capital loss which results from a capital loss carryover
25 and any net operating loss deduction, as modified pursuant to paragraph
26 (f) of subdivision eight of section 11-602 of this subchapter, shall be
27 reduced by the same part of such portion of such capital loss or of such
28 net operating loss deduction, as the case may be, as the number of
29 months, or major portions thereof, in the taxable year occurring before
30 January first, nineteen hundred sixty-six is of the number of months, or
31 major portions thereof, in such taxable year.
32 7. For any taxable year of a real estate investment trust as defined
33 in section eight hundred fifty-six of the internal revenue code in which
34 such trust is subject to federal income taxation under section eight
35 hundred fifty-seven of such code, such trust shall be subject to a tax
36 computed under either clause one of subparagraph (a) of paragraph A of
37 subdivision one of section 11-604 of this subchapter with respect to its
38 entire net income, or clause four of such subparagraph, whichever is
39 greater, and shall not be subject to any tax under subchapter three of
40 this chapter, except for a captive REIT required to file a combined
41 return under subdivision (f) of section 11-646 of this chapter. In the
42 case of such a real estate investment trust, including a captive REIT as
43 defined in section 11-601 of this chapter, the term "entire net income"
44 means "real estate investment trust taxable income" as defined in para-
45 graph two of subdivision (b) of section eight hundred fifty-seven, as
46 modified by section eight hundred fifty-eight, of the internal revenue
47 code plus the amount taxable under paragraph three of subdivision (b) of
48 section eight hundred fifty-seven of such code, subject to the modifica-
49 tion required by subdivision eight of section 11-602 of this subchapter,
50 other than the modification required by clause two of paragraph (a) and
51 by paragraph (f) thereof, including the modifications required by para-
52 graphs (d) and (e) of subdivision three of section 11-604 of this
53 subchapter.
54 8. For any taxable year beginning on or after January first, nineteen
55 hundred eighty-one of a regulated investment company, as defined in
56 section eight hundred fifty-one of the internal revenue code, in which
S. 8578 536
1 such company is subject to federal income taxation under section eight
2 hundred fifty-two of such code, such company shall be subject to a tax
3 computed under clause one or four of subparagraph (a) of paragraph E of
4 subdivision one of section 11-604 of this subchapter, whichever is
5 greater, and such company shall not be subject to any tax under subchap-
6 ter three of this chapter. The term "entire net income" used in subdivi-
7 sion one of this section means "investment company taxable income" as
8 defined in paragraph two of subdivision (b) of section eight hundred
9 fifty-two, as modified by section eight hundred fifty-five, of the
10 internal revenue code plus the amount taxable under paragraph three of
11 subdivision (b) of section eight hundred fifty-two of such code subject
12 to the modifications required by subdivision eight of section 11-602 of
13 this subchapter, other than the modification required by clause two of
14 paragraph (a) and by paragraph (f) of such subdivision, including the
15 modification required by paragraphs (d) and (e) of subdivision three of
16 section 11-604 of this subchapter.
17 9. For any taxable year beginning on or after January first, nineteen
18 hundred eighty-seven, an organization described in paragraph two or
19 twenty-five of subdivision (c) of section five hundred one of the inter-
20 nal revenue code of nineteen hundred eighty-six shall be exempt from all
21 taxes imposed by this chapter.
22 § 11-604 Computation of tax. 1. A. For taxable years beginning on or
23 after January first, nineteen hundred seventy-one and ending on or
24 before December thirty-first, nineteen hundred seventy-four, and for
25 taxable years beginning on or after January first, nineteen hundred
26 seventy-six, the tax imposed by subdivision one of section 11-603 of
27 this subchapter shall be, in the case of each taxpayer: (a) a tax (1)
28 computed at the rate of six and seven-tenths per centum of its entire
29 net income, or the portion of such entire net income allocated within
30 the city as provided in this section, subject to any modification
31 required by paragraphs (d) and (e) of subdivision three of this section,
32 or (2) computed at one mill for each dollar of its total business and
33 investment capital, or the portion thereof allocated within the city, as
34 provided in this section, except that in the case of a cooperative hous-
35 ing corporation as defined in the internal revenue code, or in the case
36 of a housing company organized and operating pursuant to the provisions
37 of article four of the private housing finance law, the applicable rates
38 shall be one-quarter of one mill, or (3) computed at the rate of six and
39 seven-tenths per centum on thirty per centum of the taxpayer's entire
40 net income plus salaries and other compensation paid to the taxpayer's
41 elected or appointed officers and to every stockholder owning in excess
42 of five per centum of its issued capital stock minus fifteen thousand
43 dollars, except as provided in this section, and any net loss for the
44 reported year, or on the portion of any such sum allocated within the
45 city as provided in this section for the allocation of entire net
46 income, subject to any modification required by paragraphs (d) and (e)
47 of subdivision three of this section, or (4) twenty-five dollars, which-
48 ever is greatest, plus (b) a tax computed at the rate of one-half mill
49 for each dollar of the portion of its subsidiary capital allocated with-
50 in the city as provided in this section. In the case of a taxpayer
51 which is not subject to tax for an entire year, the exemption allowed in
52 clause three of subparagraph (a) of this paragraph shall be prorated
53 according to the period such taxpayer was subject to tax.
54 B. For taxable years beginning on or after January first, nineteen
55 hundred seventy-five and before January first nineteen hundred seventy-
56 seven, the tax imposed by subdivision one of section 11-603 of this
S. 8578 537
1 subchapter shall be, in the case of each taxpayer: (a) a tax (1)
2 computed at the rate of ten and five one-hundredths per centum of its
3 entire net income, or the portion of such entire net income allocated
4 within the city as provided in this paragraph, subject to any modifica-
5 tion required by paragraphs (d) and (e) of subdivision three of this
6 section, or (2) computed at one and one-half mills for each dollar of
7 its total business and investment capital, or the portion thereof allo-
8 cated within the city, as provided in this paragraph, except that in the
9 case of a cooperative housing corporation as defined in the internal
10 revenue code, or in the case of a housing company organized and operat-
11 ing pursuant to the provisions of article four of the private housing
12 finance law, the applicable rate shall be four-tenths of one mill, or
13 (3) computed at the rate of ten and five one-hundredths per centum on
14 thirty per centum of the taxpayer's entire net income plus salaries and
15 other compensation paid to the taxpayer's elected or appointed officers
16 and to every stockholder owning in excess of five per centum of its
17 issued capital stock minus fifteen thousand dollars, except as provided
18 in this paragraph, and any net loss for the reported year, or on the
19 portion of any such sum allocated within the city as provided in this
20 paragraph for the allocation of entire net income, subject to any
21 modification required by paragraphs (d) and (e) of subdivision three of
22 this section, or (4) one hundred twenty-five dollars, whichever is
23 greatest, plus (b) a tax computed at the rate of three-quarters of a
24 mill for each dollar of the portion of its subsidiary capital allocated
25 within the city as provided in this paragraph. In the case of a taxpay-
26 er which is not subject to tax for an entire year, the exemption allowed
27 in clause three of subparagraph (a) of this paragraph shall be prorated
28 according to the period such taxpayer was subject to tax.
29 C. For each taxable year beginning in nineteen hundred seventy-four
30 and ending in nineteen hundred seventy-five, two tentative taxes shall
31 be computed, the first as provided in paragraph A and the second as
32 provided in paragraph B of this subdivision, and the tax for each such
33 year shall be the sum of that proportion of each tentative tax which the
34 number of days in nineteen hundred seventy-four and the number of days
35 in nineteen hundred seventy-five, respectively, bears to the number of
36 days in the entire taxable year.
37 D. For taxable years beginning on or after January first, nineteen
38 hundred seventy-seven and before January first, nineteen hundred seven-
39 ty-eight, the tax imposed by subdivision one of section 11-603 of this
40 subchapter shall be, in the case of each taxpayer: (a) a tax (1)
41 computed at the rate of nine and one-half per centum of its entire net
42 income, or the portion of such entire net income allocated within the
43 city as provided in this paragraph, subject to any modification required
44 by paragraphs (d) and (e) of subdivision three of this section, or (2)
45 computed at one and one-half mills for each dollar of its total business
46 and investment capital, or the portion thereof allocated within the
47 city, as provided in this paragraph, except that in the case of a coop-
48 erative housing corporation as defined in the internal revenue code, the
49 applicable rate shall be four-tenths of one mill, or (3) computed at the
50 rate of nine and one-half per centum on thirty per centum of the taxpay-
51 er's entire net income plus salaries and other compensation paid to the
52 taxpayer's elected or appointed officers and to every stockholder owning
53 in excess of five per centum of its issued capital stock minus fifteen
54 thousand dollars, except as provided in this paragraph, and any net loss
55 for the reported year, or on the portion of any such sum allocated with-
56 in the city as provided in this paragraph for the allocation of entire
S. 8578 538
1 net income, subject to any modification required by paragraphs (d) and
2 (e) of subdivision three of this section, or (4) one hundred twenty-five
3 dollars, whichever is greatest, plus (b) a tax computed at the rate of
4 three-quarters of a mill for each dollar of the portion of its subsid-
5 iary capital allocated within the city as provided in this paragraph. In
6 the case of a taxpayer which is not subject to tax for an entire year,
7 the exemption allowed in clause three of subparagraph (a) of this para-
8 graph shall be prorated according to the period such taxpayer was
9 subject to tax.
10 E. For taxable years beginning on or after January first, nineteen
11 hundred seventy-eight but before January first, two thousand twenty-sev-
12 en, the tax imposed by subdivision one of section 11-603 of this
13 subchapter shall be, in the case of each taxpayer:
14 (a) whichever of the following amounts is the greatest:
15 (1) an amount computed, for taxable years beginning before nineteen
16 hundred eighty-seven, at the rate of nine per centum, and for taxable
17 years beginning after nineteen hundred eighty-six, at the rate of eight
18 and eighty-five one-hundredths per centum, of its entire net income or
19 the portion of such entire net income allocated within the city as
20 provided in this paragraph, subject to any modification required by
21 paragraphs (d) and (e) of subdivision three of this section,
22 (2) an amount computed at one and one-half mills for each dollar of
23 its total business and investment capital, or the portion thereof allo-
24 cated within the city, as provided in this paragraph, except that in the
25 case of a cooperative housing corporation as defined in the internal
26 revenue code, the applicable rate shall be four-tenths of one mill,
27 (3) an amount computed, for taxable years beginning before nineteen
28 hundred eighty-seven, at the rate of nine per centum, and for taxable
29 years beginning after nineteen hundred eighty-six, at the rate of eight
30 and eighty-five one-hundredths per centum, on thirty per centum of the
31 taxpayer's entire net income plus salaries and other compensation paid
32 to the taxpayer's elected or appointed officers and to every stockholder
33 owning in excess of five per centum of its issued capital stock minus
34 fifteen thousand dollars, subject to proration as provided in this para-
35 graph, and any net loss for the reported year, or on the portion of any
36 such sum allocated within the city as provided in this paragraph for the
37 allocation of entire net income, subject to any modification required by
38 paragraphs (d) and (e) of subdivision three of this section, provided,
39 however, that for taxable years beginning on or after July first, nine-
40 teen hundred ninety-six, the provisions of paragraph H of this subdivi-
41 sion shall apply for purposes of the computation under this clause, or
42 (4) for taxable years ending on or before June thirtieth, nineteen
43 hundred eighty-nine, one hundred twenty-five dollars, for taxable years
44 ending after June thirtieth, nineteen hundred eighty-nine and beginning
45 before two thousand nine, three hundred dollars, and for taxable years
46 beginning after two thousand eight:
47 If city Fixed dollar
48 receipts are: minimum tax is:
49 Not more than $100,000 $25
50 More than $100,000 but not over $250,000 $75
51 More than $250,000 but not over $500,000 $175
52 More than $500,000 but not over $1,000,000 $500
53 More than $1,000,000 but not over $5,000,000 $1,500
54 More than $5,000,000 but not over $25,000,000 $3,500
S. 8578 539
1 Over $25,000,000 $5,000
2 For purposes of this clause, city receipts are the receipts computed in
3 accordance with subparagraph two of paragraph (a) of subdivision three
4 of this section for the taxable year. For taxable years beginning after
5 two thousand eight, if the taxable year is less than twelve months,
6 the amount prescribed by this clause shall be reduced by twenty-five
7 percent if the period for which the taxpayer is subject to tax is more
8 than six months but not more than nine months and by fifty percent if
9 the period for which the taxpayer is subject to tax is not more than six
10 months. If the taxable year is less than twelve months, the amount of
11 city receipts for purposes of this clause is determined by divid-
12 ing the amount of the receipts for the taxable year by the number of
13 months in the taxable year and multiplying the result by twelve plus;
14 (b) an amount computed at the rate of three-quarters of a mill for
15 each dollar of the portion of its subsidiary capital allocated within
16 the city as provided in this paragraph.
17 In the case of a taxpayer which is not subject to tax for an entire
18 year, the exemption allowed in clause three of subparagraph (a) of this
19 paragraph shall be prorated according to the period such taxpayer was
20 subject to tax. Provided, however, that this paragraph shall not apply
21 to taxable years beginning after December thirty-first, two thousand
22 twenty-six. For the taxable years specified in this subparagraph, the
23 tax imposed by subdivision one of section 11-603 of this subchapter
24 shall be, in the case of each taxpayer, determined as specified in para-
25 graph A of this subdivision, provided, however, that the provisions of
26 paragraphs G and H of this subdivision shall apply for purposes of the
27 computation under clause three of subparagraph (a) of such paragraph.
28 F. Notwithstanding any other provision of this subdivision to the
29 contrary, for taxable years beginning after nineteen hundred eighty-sev-
30 en and before two thousand nine the amount of tax computed on the basis
31 of the taxpayer's total business and investment capital, or the portion
32 thereof allocated within the city, shall in no event exceed three
33 hundred fifty thousand dollars and for taxable years beginning after two
34 thousand eight the amount of tax computed on the basis of the taxpayer's
35 total business and investment capital, or the portion thereof allocated
36 within the city, shall in no event exceed one million dollars.
37 G. In the case of a foreign air carrier described in subparagraph one
38 of paragraph (c-1) of subdivision eight of section 11-602 of this
39 subchapter, there shall be excluded from the computation of the tax
40 under clause three of subparagraph (a) of paragraph E of this subdivi-
41 sion salaries and other compensation described therein which are direct-
42 ly attributable to the generation of income excluded from entire net
43 income for the taxable year pursuant to the provisions of paragraph
44 (c-1) of subdivision eight of section 11-602 of this subchapter.
45 H. For taxable years beginning on or after July first, nineteen
46 hundred ninety-six, the computation under clause three of subparagraph
47 (a) of paragraph E of this subdivision shall be subject to the following
48 modifications:
49 (a) (1) For taxable years beginning on or after July first, nineteen
50 hundred ninety-six but before July first, nineteen hundred ninety-eight,
51 only seventy-five percent of the total salaries and other compensation
52 paid to the taxpayer's elected or appointed officers shall be added to
53 the entire net income entering into such computation; for taxable years
54 beginning on or after July first, nineteen hundred ninety-eight but
55 before July first, nineteen hundred ninety-nine, only fifty percent of
S. 8578 540
1 such salaries and other compensation shall be added to such entire net
2 income; and for taxable years beginning on or after July first, nineteen
3 hundred ninety-nine, no part of such salaries and other compensation
4 shall be added to such entire net income.
5 (2) Notwithstanding anything in clause one of this subparagraph to the
6 contrary, the full amount of the salary or other compensation paid to
7 any such elected or appointed officer shall be added to entire net
8 income as provided in clause three of subparagraph (a) of paragraph E of
9 this subdivision if such officer was, at any time during the taxable
10 year, a stockholder owning more than five percent of taxpayer's issued
11 capital stock.
12 (b) For taxable years beginning on or after July first, nineteen
13 hundred ninety-seven but before July first, nineteen hundred ninety-
14 eight, the fixed dollar amount entering into the computation under
15 clause three of subparagraph (a) of paragraph E of this subdivision
16 shall be thirty thousand dollars instead of fifteen thousand dollars;
17 and for taxable years beginning on or after July first, nineteen hundred
18 ninety-eight, such fixed dollar amount shall be forty thousand dollars.
19 (c) For taxable years beginning on or after January first, two thou-
20 sand seven and before January first, two thousand eight the per centum
21 entering into the computation under clause three of subparagraph (a) of
22 paragraph E of this subdivision shall be twenty-six and one-fourth per
23 centum instead of thirty per centum, for taxable years beginning on or
24 after January first, two thousand eight and before January first, two
25 thousand nine such per centum shall be twenty-two and one-half per
26 centum, for taxable years beginning on or after January first, two thou-
27 sand nine and before January first, two thousand ten such per centum
28 shall be eighteen and three-fourths per centum and for taxable years
29 beginning on or after January first, two thousand ten such per centum
30 shall be fifteen per centum.
31 I. Notwithstanding any provision of this subdivision to the contrary,
32 for taxable years beginning on or after January first, two thousand
33 seven for any corporation that:
34 (a) has a business allocation percentage for the taxable year, as
35 determined under paragraph (a) of subdivision three of this section, of
36 one hundred percent;
37 (b) has no investment capital or income at any time during the taxable
38 year;
39 (c) has no subsidiary capital or income at any time during the taxable
40 year; and
41 (d) has gross income, as defined in section sixty-one of the internal
42 revenue code, less than two hundred fifty thousand dollars for the taxa-
43 ble year:
44 the tax imposed by subdivision one of section 11-603 of this subchap-
45 ter shall be the greater of the tax on entire net income computed under
46 clause one of subparagraph (a) of paragraph E of this subdivision and
47 the fixed dollar minimum tax specified in clause four of subparagraph
48 (a) of paragraph E of this subdivision.
49 For purposes of this paragraph, for taxable years beginning before
50 January first, two thousand fifteen, any corporation for which an
51 election under subsection (a) of section six hundred sixty of the tax
52 law is not in effect for the taxable year may elect to treat as entire
53 net income the sum of:
54 (i) entire net income as determined under section two hundred eight of
55 the tax law; and
S. 8578 541
1 (ii) any deductions taken for the taxable year in computing federal
2 taxable income for Staten Island city taxes paid or accrued under this
3 chapter.
4 2. The amount of subsidiary capital, investment capital and business
5 capital shall each be determined by taking the average value of the
6 gross assets included therein, less liabilities deductible therefrom
7 pursuant to the provisions of subdivisions three, four and six of
8 section 11-602 of this subchapter, and, if the period covered by the
9 report is other than a period of twelve calendar months, by multiplying
10 such value by the number of calendar months or major parts thereof
11 included in such period, and dividing the product thus obtained by
12 twelve. For purposes of this subdivision, real property and marketable
13 securities shall be valued at fair market value and the value of
14 personal property other than marketable securities shall be the value
15 thereof shown on the books and records of the taxpayer in accordance
16 with generally accepted accounting principles.
17 3. The portion of the entire net income of a taxpayer to be allocated
18 within the city shall be determined as follows:
19 (a) multiply its business income by a business allocation percentage
20 to be determined by:
21 (1) ascertaining the percentage which the average value of the taxpay-
22 er's real and tangible personal property, whether owned or rented to it,
23 within the city during the period covered by its report bears to the
24 average value of all the taxpayer's real and tangible personal property,
25 whether owned or rented to it, wherever situated during such period. For
26 the purpose of this subparagraph, the term "value of the taxpayer's real
27 and tangible personal property" shall mean the adjusted bases of such
28 properties for federal income tax purposes, except that in the case of
29 rented property such value shall mean the product of (A) eight and (B)
30 the gross rents payable for the rental of such property during the taxa-
31 ble year; provided, however, that the taxpayer may make a one-time,
32 revocable election, pursuant to regulations promulgated by the commis-
33 sioner of finance to use fair market value as the value of all of its
34 real and tangible personal property, provided that such election is made
35 on or before the due date for filing a report under section 11-605 of
36 this subchapter for the taxpayer's first taxable year commencing on or
37 after January first, nineteen hundred eighty-eight and provided that
38 such election shall not apply to any taxable year with respect to which
39 the taxpayer is included on a combined report unless each of the taxpay-
40 ers included on such report has made such an election which remains in
41 effect for such year;
42 (2) ascertaining the percentage which the receipts of the taxpayer,
43 computed on the cash or accrual basis according to the method of
44 accounting used in the computation of its entire net income, arising
45 during such period from:
46 (A) except as otherwise provided in subparagraph nine of this para-
47 graph, sales of its tangible personal property where shipments are made
48 to points within the city;
49 (B) services performed within the city, provided, however, that (i) in
50 the case of a taxpayer engaged in the business of publishing newspapers
51 or periodicals, receipts arising from sales of advertising contained in
52 such newspapers and periodicals shall be deemed to arise from services
53 performed within the city to the extent that such newspapers and period-
54 icals are delivered to points within the city, (ii) receipts received
55 from an investment company arising from the sale of management, adminis-
56 tration or distribution services to such investment company shall be
S. 8578 542
1 deemed to arise from services performed within the city to the extent
2 set forth in subparagraph five of this paragraph, (iii) in the case of
3 taxpayers principally engaged in the activity of air freight forwarding
4 acting as principal and like indirect air carriage, receipts arising
5 from such activity shall be deemed to arise from services performed
6 within the city as follows: one hundred percent of such receipts if both
7 the pickup and delivery associated with such receipts are made in the
8 city and fifty percent of such receipts if either the pickup or delivery
9 associated with such receipts is made in the city, (iv) for taxable
10 years beginning on or after January first, two thousand two, in the case
11 of a taxpayer engaged in the business of publishing newspapers or peri-
12 odicals, or broadcasting radio or television programs, whether through
13 the public airwaves or by cable, direct or indirect satellite trans-
14 mission, or any other means of transmission, receipts arising from sales
15 of subscriptions, advertising or broadcasting shall be deemed to arise
16 from services performed within the city to the extent provided in
17 subparagraph nine of this paragraph, and (v) for taxable years beginning
18 after two thousand eight, in the case of a taxpayer which is a regis-
19 tered securities or commodities broker or dealer, the receipts specified
20 in subparagraph ten of this paragraph shall be deemed to arise from
21 services performed within the city to the extent set forth in such
22 subparagraph ten;
23 (C) rentals from property situated and royalties from the use of
24 patents or copyrights, within the city;
25 (D) all other business receipts earned within the city, bear to the
26 total amount of the taxpayer's receipts, similarly computed, arising
27 during such period from all sales of its tangible personal property,
28 services, rentals, royalties and all other business transactions, wheth-
29 er within or without the city; and
30 (E) notwithstanding any other provision of this paragraph, net global
31 intangible low-taxed income shall be included in the receipts fraction
32 as provided in this clause. Receipts constituting net global intangible
33 low-taxed income shall not be included in the numerator of the receipts
34 fraction. Receipts constituting net global intangible low-taxed income
35 shall be included in the denominator of the receipts fraction. For
36 purposes of this clause, the term "net global intangible low-taxed
37 income" means the amount that would have been required to be included in
38 the taxpayer's federal gross income pursuant to subsection (a) of
39 section nine hundred fifty-one-A of the internal revenue code less the
40 amount of the deduction that would have been allowed under clause (i) of
41 subparagraph (B) of paragraph one of subdivision (a) of section two
42 hundred fifty of such code if the taxpayer had not made an election
43 under subchapter s of chapter one of the internal revenue code;
44 (3) ascertaining the percentage of the total wages, salaries and other
45 personal service compensation, similarly computed, during such period of
46 employees within the city, except general executive officers, to the
47 total wages, salaries and other personal service compensation, similarly
48 computed, during such period of all the taxpayer's employees within and
49 without the city, except general executive officers; and
50 (4) adding together the percentages so determined and dividing the
51 result by the number of percentages; provided, however, that for taxable
52 years beginning on or after July first, nineteen hundred ninety-six, a
53 taxpayer that is a "manufacturing corporation," as defined in subpara-
54 graph eight of this paragraph, may determine its business allocation
55 percentage as provided in such subparagraph eight; and provided,
56 further, however, that for taxable years beginning before July first,
S. 8578 543
1 nineteen hundred ninety-six, if the taxpayer does not have a regular
2 place of business outside the city other than a statutory office, the
3 business allocation percentage shall be one hundred per centum.
4 (5) Rules for receipts from certain services to investment companies.
5 (A) For purposes of subclause (ii) of clause (B) of subparagraph two of
6 this paragraph, the portion of receipts received from an investment
7 company arising from the sale of management, administration or distrib-
8 ution services to such investment company determined in accordance with
9 clause (B) of this subparagraph shall be deemed to arise from services
10 performed within the city, such portion referred to as the Staten Island
11 city portion.
12 (B) The Staten Island city portion shall be the product of (a) the
13 total of such receipts from the sale of such services and (b) a frac-
14 tion. The numerator of that fraction is the sum of the monthly percent-
15 ages, as defined, determined for each month of the investment company's
16 taxable year for federal income tax purposes which taxable year ends
17 within the taxable year of the taxpayer, but excluding any month during
18 which the investment company had no outstanding shares. The monthly
19 percentage for each such month is determined by dividing (a) the number
20 of shares in the investment company which are owned on the last day of
21 the month by shareholders which are domiciled in the city by (b) the
22 total number of shares in the investment company outstanding on that
23 date. The denominator of the fraction is the number of such monthly
24 percentages.
25 (C) (i) For purposes of this subparagraph, the term "domicile", in the
26 case of an individual, shall have the meaning ascribed to it under chap-
27 ter seventeen of this title; an estate or trust is domiciled in the city
28 if it is a city resident estate or trust as defined in paragraph three
29 of subdivision (b) of section 11-1705 of the code of the preceding muni-
30 cipality; a business entity is domiciled in the city if the location of
31 the actual seat of management or control is in the city. It shall be
32 presumed that the domicile of a shareholder, with respect to any month,
33 is his, her or its mailing address on the records of the investment
34 company as of the last day of such month.
35 (ii) For purposes of this subparagraph, the term "investment company"
36 means a regulated investment company, as defined in section eight
37 hundred fifty-one of the internal revenue code, and a partnership to
38 which subdivision (a) of section seven thousand seven hundred four of
39 the internal revenue code applies, by virtue of paragraph three of
40 subdivision (c) of section seven thousand seven hundred four of such
41 code, and that meets the requirements of subdivision (b) of section
42 eight hundred fifty-one of such code. The provisions of this subpara-
43 graph shall be applied to the taxable year for federal income tax
44 purposes of the business entity that is asserted to constitute an
45 investment company that ends within the taxable year of the taxpayer.
46 (iii) For purposes of this subparagraph, the term "receipts from an
47 investment company" includes amounts received directly from an invest-
48 ment company as well as amounts received from the shareholders in such
49 investment company in their capacity as such.
50 (iv) For purposes of this subparagraph, the term "management services"
51 means the rendering of investment advice to an investment company,
52 making determinations as to when sales and purchases of securities are
53 to be made on behalf of an investment company, or the selling or
54 purchasing of securities constituting assets of an investment company,
55 and related activities, but only where such activity or activities are
56 performed pursuant to a contract with the investment company entered
S. 8578 544
1 into pursuant to subdivision (a) of section fifteen of the federal
2 investment company act of nineteen hundred forty, as amended.
3 (v) For purposes of this subparagraph, the term "distribution
4 services" means the services of advertising, servicing investor
5 accounts, including redemptions, marketing shares or selling shares of
6 an investment company, but, in the case of advertising, servicing inves-
7 tor accounts, including redemptions, or marketing shares, only where
8 such service is performed by a person who is, or was, in the case of a
9 closed end company, also engaged in the service of selling such shares.
10 In the case of an open end company, such service of selling shares must
11 be performed pursuant to a contract entered into pursuant to subdivision
12 (b) of section fifteen of the federal investment company act of nineteen
13 hundred forty, as amended.
14 (vi) For purposes of this subparagraph, the term "administration
15 services" includes (1) clerical, accounting, bookkeeping, data process-
16 ing, internal auditing, legal and tax services performed for an invest-
17 ment company but only (2) if the provider of such service or services
18 during the taxable year in which such service or services are sold also
19 sells management or distribution services, as defined in this paragraph,
20 to such investment company.
21 (6) (A) Provided, further, however, that a taxpayer principally
22 engaged in the conduct of aviation, other than as provided in clause (C)
23 of this subparagraph, shall, notwithstanding subparagraphs one through
24 five of this paragraph, determine the portion of entire net income to be
25 allocated within the city by multiplying its business income by a busi-
26 ness allocation percentage which is equal to the arithmetic average of
27 the following three percentages:
28 (i) the percentage determined by dividing aircraft arrivals and depar-
29 tures within the city by the taxpayer during the period covered by its
30 report by the total aircraft arrivals and departures within and without
31 the city during such period; provided, however, arrivals and departures
32 solely for maintenance or repair, refueling, where no debarkation or
33 embarkation of traffic occurs, arrivals and departures of ferry and
34 personnel training flights or arrivals and departures in the event of
35 emergency situations shall not be included in computing such arrival and
36 departure percentage; provided, further, the commissioner of finance may
37 also exempt from such percentage aircraft arrivals and departures of all
38 non-revenue flights including flights involving the transportation of
39 officers or employees receiving air transportation to perform mainte-
40 nance or repair services or where such officers or employees are trans-
41 ported in conjunction with an emergency situation or the investigation
42 of an air disaster, other than on a scheduled flight; provided, however,
43 that arrivals and departures of flights transporting officers and
44 employees receiving air transportation for purposes other than specified
45 above, without regard to remuneration, shall be included in computing
46 such arrival and departure percentage;
47 (ii) the percentage determined by dividing the revenue tons handled by
48 the taxpayer at airports within the city during such period by the total
49 revenue tons handled by it at airports within and without the city
50 during such period; and
51 (iii) the percentage determined by dividing the taxpayer's originating
52 revenue within the city for such period by its total originating revenue
53 within and without the city for such period.
54 (B) As used herein, the term "aircraft arrivals and departures" means
55 the number of landings and takeoffs of the aircraft of the taxpayer and
56 the number of air pickups and deliveries by the aircraft of such taxpay-
S. 8578 545
1 er; the term "originating revenue" means revenue to the taxpayer from
2 the transportation of revenue passengers and revenue property first
3 received by the taxpayer either as originating or connecting traffic at
4 airports; and the term "revenue tons handled" by the taxpayer at
5 airports means the weight in tons of revenue passengers, at two hundred
6 pounds per passenger, and revenue cargo first received either as origi-
7 nating or connecting traffic or finally discharged by the taxpayer at
8 airports;
9 (C) A foreign air carrier described in subparagraph one of paragraph
10 (c-1) of subdivision eight of section 11-602 of this subchapter shall
11 determine its business allocation percentage pursuant to the provisions
12 of subparagraphs one through four of this paragraph, except that the
13 numerators and denominators involved in such computation shall exclude
14 property to the extent employed in generating income excluded from
15 entire net income pursuant to the provisions of paragraph (c-1) of
16 subdivision eight of section 11-602 of this subchapter, exclude such
17 receipts as are excluded from entire net income for the taxable year
18 pursuant to the provisions of paragraph (c-1) of subdivision eight of
19 section 11-602 of this subchapter, and exclude wages, salaries or other
20 personal service compensation which are directly attributable to the
21 generation of income excluded from entire net income for the taxable
22 year pursuant to the provisions of paragraph (c-1) of subdivision eight
23 of section 11-602 of this subchapter.
24 (7) Provided, further, however, that a taxpayer principally engaged in
25 the operation of vessels shall, notwithstanding subparagraphs one
26 through six of this paragraph, determine the portion of entire net
27 income to be allocated within the city by multiplying its business
28 income by a business allocation percentage determined by dividing the
29 aggregate number of working days of the vessels it owns or leases in
30 territorial waters of the city during the period covered by its report
31 by the aggregate number of working days of all the vessels it owns or
32 leases during such period.
33 (8) (A) For taxable years beginning on or after July first, nineteen
34 hundred ninety-six and before January first, two thousand eleven, a
35 manufacturing corporation may elect to determine its business allocation
36 percentage by adding together the percentages determined under subpara-
37 graphs one, two and three of this paragraph and an additional percentage
38 equal to the percentage determined under subparagraph two of this para-
39 graph, and dividing the result by the number of percentages so added
40 together.
41 (B) An election under this subparagraph must be made on a timely
42 filed, determined with regard to extensions granted, original report for
43 the taxable year. Once made for a taxable year, such election shall be
44 irrevocable for that taxable year. A separate election must be made for
45 each taxable year. A manufacturing corporation that has failed to make
46 an election as provided in this clause shall be required to determine
47 its business allocation percentage without regard to the provisions of
48 this subparagraph. Notwithstanding anything in this clause to the
49 contrary, the commissioner of finance may permit a manufacturing corpo-
50 ration to make or revoke an election under this subparagraph, upon such
51 terms and conditions as the commissioner may prescribe, where the
52 commissioner determines that such permission should be granted in the
53 interests of fairness and equity due to a change in circumstances
54 resulting from an audit adjustment.
55 (C) As used in this subparagraph, the term "manufacturing corporation"
56 means a corporation primarily engaged in the manufacturing and sale
S. 8578 546
1 thereof of tangible personal property; and the term "manufacturing"
2 includes the process, including the assembly process, (i) of working raw
3 materials into wares suitable for use or (ii) which gives new shapes,
4 new qualities or new combinations to matter which already has gone
5 through some artificial process, by the use of machinery, tools, appli-
6 ances and other similar equipment. A corporation shall be deemed to be
7 primarily engaged in the activities described in the provisions of this
8 subparagraph if more than fifty percent of its gross receipts for the
9 taxable year are attributable to such activities.
10 (D) Notwithstanding anything to the contrary, if a taxpayer that is
11 otherwise eligible to make the election authorized by this subparagraph
12 is required or permitted to make a report on a combined basis with one
13 or more other corporations pursuant to subdivision four of section
14 11-605 of this chapter, the taxpayer shall be permitted to make an
15 election under this subparagraph only if such taxpayer and such other
16 corporation or corporations would be a manufacturing corporation if they
17 were treated as a single corporation. In making such determination,
18 intercorporate transactions shall be eliminated. Where such election has
19 been made by the taxpayer for a taxable year, each of the other corpo-
20 rations included in the combined report shall also be deemed to have
21 made a proper election under this subparagraph for such taxable year.
22 (9) Special rules for publishers and broadcasters. (A) Notwithstanding
23 anything in subparagraph two of this paragraph to the contrary and
24 except as provided in clause (C) of this subparagraph, in the case of a
25 taxpayer engaged in the business of publishing newspapers or period-
26 icals, there shall be allocated to the city, for purposes of subpara-
27 graph two of this paragraph, the gross sales or charges for services
28 arising from sales of advertising contained in such newspapers or peri-
29 odicals, to the extent that such newspapers or periodicals are delivered
30 to points within the city.
31 (B) Notwithstanding anything in subparagraph two of this paragraph to
32 the contrary and except as provided in clause (C) of this subparagraph,
33 in the case of a taxpayer engaged in the business of broadcasting radio
34 or television programs, whether through the public airwaves or by cable,
35 direct or indirect satellite transmission, or any other means of trans-
36 mission, there shall be allocated to the city, for purposes of subpara-
37 graph two of this paragraph, a portion of the gross sales or charges for
38 services arising from the broadcasting of such programs and of commer-
39 cial messages in connection therewith, such portion to be determined
40 according to the number of listeners or viewers within and without the
41 city.
42 (C) Notwithstanding anything in clause (A) or (B) of this subparagraph
43 to the contrary, in the case of a taxpayer engaged in the business of
44 publishing newspapers or periodicals, or broadcasting radio or tele-
45 vision programs, whether through the public airwaves or by cable, direct
46 or indirect satellite transmission, or any other means of transmission,
47 there shall be allocated to the city, for purposes of subparagraph two
48 of this paragraph, the gross sales or charges to subscribers located in
49 the city for subscriptions to such newspapers, periodicals, or program
50 services. For purposes of this clause, a subscriber shall be deemed
51 located in the city if, in the case of newspapers and periodicals, the
52 mailing address for the subscription is within the city and, in the case
53 of program services, the billing address for the subscription is within
54 the city. For purposes of this clause, "subscriber" shall mean a member
55 of the general public who receives such newspapers, periodicals or
56 program services and does not further distribute them.
S. 8578 547
1 (10) Notwithstanding subparagraphs one through five of this paragraph,
2 but subject to subparagraph eight of this paragraph, the business allo-
3 cation percentage, to the extent that it is computed by reference to the
4 percentages determined under subparagraphs one, two and three of this
5 paragraph, shall be computed in the manner set forth in this subpara-
6 graph.
7 (A) For taxable years beginning in two thousand nine, the business
8 allocation percentage shall be determined by adding together the follow-
9 ing percentages:
10 (i) the product of thirty percent and the percentage determined under
11 subparagraph one of this paragraph,
12 (ii) the product of forty percent and the percentage determined under
13 subparagraph two of this paragraph, and
14 (iii) the product of thirty percent and the percentage determined
15 under subparagraph three of this paragraph.
16 (B) For taxable years beginning in two thousand ten, the business
17 allocation percentage shall be determined by adding together the follow-
18 ing percentages:
19 (i) the product of twenty-seven percent and the percentage determined
20 under subparagraph one of this paragraph,
21 (ii) the product of forty-six percent and the percentage determined
22 under subparagraph two of this paragraph, and
23 (iii) the product of twenty-seven percent and the percentage deter-
24 mined under subparagraph three of this paragraph.
25 (C) For taxable years beginning in two thousand eleven, the business
26 allocation percentage shall be determined by adding together the follow-
27 ing percentages:
28 (i) the product of twenty-three and one-half percent and the percent-
29 age determined under subparagraph one of this paragraph,
30 (ii) the product of fifty-three percent and the percentage determined
31 under subparagraph two of this paragraph, and
32 (iii) the product of twenty-three and one-half percent and the
33 percentage determined under subparagraph three of this paragraph.
34 (D) For taxable years beginning in two thousand twelve, the business
35 allocation percentage shall be determined by adding together the follow-
36 ing percentages:
37 (i) the product of twenty percent and the percentage determined under
38 subparagraph one of this paragraph,
39 (ii) the product of sixty percent and the percentage determined under
40 subparagraph two of this paragraph, and
41 (iii) the product of twenty percent and the percentage determined
42 under subparagraph three of this paragraph.
43 (E) For taxable years beginning in two thousand thirteen, the business
44 allocation percentage shall be determined by adding together the follow-
45 ing percentages:
46 (i) the product of sixteen and one-half percent and the percentage
47 determined under subparagraph one of this paragraph,
48 (ii) the product of sixty-seven percent and the percentage determined
49 under subparagraph two of this paragraph, and
50 (iii) the product of sixteen and one-half percent and the percentage
51 determined under subparagraph three of this paragraph.
52 (F) For taxable years beginning in two thousand fourteen, the business
53 allocation percentage shall be determined by adding together the follow-
54 ing percentages:
55 (i) the product of thirteen and one-half percent and the percentage
56 determined under subparagraph one of this paragraph,
S. 8578 548
1 (ii) the product of seventy-three percent and the percentage deter-
2 mined under subparagraph two of this paragraph, and
3 (iii) the product of thirteen and one-half percent and the percentage
4 determined under subparagraph three of this paragraph.
5 (G) For taxable years beginning in two thousand fifteen, the business
6 allocation percentage shall be determined by adding together the follow-
7 ing percentages:
8 (i) the product of ten percent and the percentage determined under
9 subparagraph one of this paragraph,
10 (ii) the product of eighty percent and the percentage determined under
11 subparagraph two of this paragraph, and
12 (iii) the product of ten percent and the percentage determined under
13 subparagraph three of this paragraph.
14 (H) For taxable years beginning in two thousand sixteen, the business
15 allocation percentage shall be determined by adding together the follow-
16 ing percentages:
17 (i) the product of six and one-half percent and the percentage deter-
18 mined under subparagraph one of this paragraph,
19 (ii) the product of eighty-seven percent and the percentage determined
20 under subparagraph two of this paragraph, and
21 (iii) the product of six and one-half percent and the percentage
22 determined under subparagraph three of this paragraph.
23 (I) For taxable years beginning in two thousand seventeen, the busi-
24 ness allocation percentage shall be determined by adding together the
25 following percentages:
26 (i) the product of three and one-half percent and the percentage
27 determined under subparagraph one of this paragraph,
28 (ii) the product of ninety-three percent and the percentage determined
29 under subparagraph two of this paragraph, and
30 (iii) the product of three and one-half percent and the percentage
31 determined under subparagraph three of this paragraph.
32 (J) For taxable years beginning after two thousand seventeen, the
33 business allocation percentage shall be the percentage determined under
34 subparagraph two of this paragraph.
35 (K) The commissioner shall promulgate rules necessary to implement the
36 provisions of this subparagraph under such circumstances where any of
37 the percentages to be determined under subparagraph one, two or three of
38 this paragraph cannot be determined because the taxpayer has no proper-
39 ty, receipts or wages within or without the city.
40 (11) (A) In the case of a taxpayer which is a registered securities or
41 commodities broker or dealer, the receipts specified in items (i)
42 through (vii) of this clause shall be deemed to arise from services
43 performed within the city to the extent set forth in each of such items.
44 (i) Receipts constituting brokerage commissions derived from the
45 execution of securities or commodities purchase or sales orders for the
46 accounts of customers shall be deemed to arise from services performed
47 at the mailing address in the records of the taxpayer of the customer
48 who is responsible for paying such commissions.
49 (ii) Receipts constituting margin interest earned on behalf of broker-
50 age accounts shall be deemed to arise from services performed at the
51 mailing address in the records of the taxpayer of the customer who is
52 responsible for paying such margin interest.
53 (iii) Gross income, including any accrued interest or dividends, from
54 principal transactions for the purchase or sale of stocks, bonds,
55 foreign exchange and other securities or commodities, including futures
56 and forward contracts, options and other types of securities or commod-
S. 8578 549
1 ities derivatives contracts, shall be deemed to arise from services
2 performed within the city either (I) to the extent that production cred-
3 its are awarded to branches, offices or employees of the taxpayer within
4 the city as a result of such principal transactions or (II) if the
5 taxpayer so elects, to the extent that the gross proceeds from such
6 principal transactions, determined without deduction for any cost
7 incurred by the taxpayer to acquire the securities or commodities, are
8 generated from sales of securities or commodities to customers within
9 the city based upon the mailing addresses of such customers in the
10 records of the taxpayer. For purposes of subitem (II) of this item, the
11 taxpayer shall separately calculate such gross income from principal
12 transactions by type of security or commodity. For purposes of this
13 item, gross income from principal transactions shall be determined after
14 the deduction of any cost incurred by the taxpayer to acquire the secu-
15 rities or commodities. For purposes of this subparagraph, the term
16 "production credits" means credits granted pursuant to the internal
17 accounting system used by the taxpayer to measure the amount of revenue
18 that should be awarded to a particular branch or office or employee of
19 the taxpayer which is based, at least in part, on the branch's, the
20 office's or the employee's particular activities. Upon request, the
21 taxpayer shall be required to furnish a detailed explanation of such
22 internal accounting system to the department.
23 (iv) (I) Receipts constituting fees earned by the taxpayer for advi-
24 sory services to a customer in connection with the underwriting of secu-
25 rities for such customer, such customer being the entity which is
26 contemplating issuing or is issuing securities, or fees earned by the
27 taxpayer for managing an underwriting shall be deemed to arise from
28 services performed at the mailing address in the records of the taxpayer
29 of such customer who is responsible for paying such fees.
30 (II) Receipts constituting the primary spread or selling concession
31 from underwritten securities shall be deemed to arise from services
32 performed within the city to the extent that production credits are
33 awarded to branches, offices or employees of the taxpayer within the
34 city as a result of the sale of the underwritten securities.
35 (III) The term "primary spread" means the difference between the price
36 paid by the taxpayer to the issuer of the securities being marketed and
37 the price received from the subsequent sale of the underwritten securi-
38 ties at the initial public offering price, less any selling concession
39 and any fees paid to the taxpayer for advisory services or any manager's
40 fees, if such fees are not paid by the customer to the taxpayer sepa-
41 rately. The term "public offering price" means the price agreed upon by
42 the taxpayer and the issuer at which the securities are to be offered to
43 the public. The term "selling concession" means the amount paid to the
44 taxpayer for participating in the underwriting of a security where the
45 taxpayer is not the lead underwriter.
46 (v) Receipts constituting interest earned by the taxpayer on loans and
47 advances made by the taxpayer to a corporation affiliated with the
48 taxpayer but with which the taxpayer is not permitted or required to
49 file a combined report pursuant to subdivision four of section 11-605 of
50 this subchapter shall be deemed to arise from services performed at the
51 principal place of business of such affiliated corporation.
52 (vi) Receipts constituting account maintenance fees shall be deemed to
53 arise from services performed at the mailing address in the records of
54 the taxpayer of the customer who is responsible for paying such account
55 maintenance fees.
S. 8578 550
1 (vii) Receipts constituting fees for management or advisory services,
2 including fees for advisory services in relation to merger or acquisi-
3 tion activities but excluding fees paid for services described in item
4 (ii) of clause (B) of subparagraph two of this paragraph, shall be
5 deemed to arise from services performed at the mailing address in the
6 records of the taxpayer of the customer who is responsible for paying
7 such fees.
8 (B) For purposes of this subparagraph, the term "securities" shall
9 have the same meaning as in paragraph two of subdivision (c) of section
10 four hundred seventy-five of the internal revenue code and the term
11 "commodities" shall have the same meaning as in paragraph two of subdi-
12 vision (e) of section four hundred seventy-five of the internal revenue
13 code. The term "registered securities or commodities broker or dealer"
14 means a broker or dealer registered as such by the securities and
15 exchange commission or the commodities futures trading commission, and
16 shall include an over-the-counter derivatives dealer as defined under
17 regulations of the securities and exchange commission at title 17, part
18 240, section 3b-12 of the code of federal regulations (17 CFR
19 240.3b-12).
20 (C) If the taxpayer receives any of the receipts enumerated in clause
21 (A) of this subparagraph as a result of a securities correspondent
22 relationship such taxpayer has with another registered securities or
23 commodities broker or dealer with the taxpayer acting in this relation-
24 ship as the clearing firm, such receipts shall be deemed to arise from
25 services performed within the city to the extent set forth in each of
26 the items of clause (A) of this subparagraph. The amount of such
27 receipts shall exclude the amount the taxpayer is required to pay to the
28 correspondent firm for such correspondent relationship. If the taxpayer
29 receives any of the receipts enumerated in clause (A) of this subpara-
30 graph as a result of a securities correspondent relationship such
31 taxpayer has with another registered securities or commodities broker or
32 dealer with the taxpayer acting in this relationship as the introducing
33 firm, such receipts shall be deemed to arise from services performed
34 within the city to the extent set forth in each of the items of clause
35 (A) of this subparagraph.
36 (D) If, for purposes of item (i) or (ii), subitem (I) of item (iv), or
37 item (vi), or (vii) of clause (A) of this subparagraph, the taxpayer is
38 unable from its records to determine the mailing address of the custom-
39 er, the receipts enumerated in any of such items shall be deemed to
40 arise from services performed at the branch or office of the taxpayer
41 that generates the transaction for the customer that generated such
42 receipts.
43 (b) multiply its investment income by an investment allocation
44 percentage to be determined by:
45 (1) multiplying the amount of its investment capital invested in each
46 stock, bond or other security, other than governmental securities,
47 during the period covered by its report by the issuer's allocation
48 percentage of the issuer or obligor thereof.
49 (i) In the case of an issuer or obligor subject to tax under this
50 subchapter, subchapter three-A or subchapter four of this chapter, or
51 subject to tax as a utility corporation under chapter eleven of this
52 title, the issuer's allocation percentage shall be the percentage of the
53 appropriate measure, which is required to be allocated within the city
54 on the report or reports, if any, required of the issuer or obligor
55 under this title for the preceding year. The "appropriate measure" shall
56 be defined as: in the case of an issuer or obligor subject to this
S. 8578 551
1 subchapter or subchapter three-A, entire capital; in the case of an
2 issuer or obligor subject to subchapter four of this chapter, issued
3 capital stock; in the case of an issuer or obligor subject to chapter
4 eleven of this title as a utility corporation, gross income.
5 (ii) In the case of an issuer or obligor subject to tax under part
6 four of subchapter three of this chapter, the issuer's allocation
7 percentage shall be determined as follows:
8 (A) In the case of a banking corporation described in paragraphs one
9 through eight of subdivision (a) of section 11-640 of this chapter which
10 is organized under the laws of the United States, this state or any
11 other state of the United States, the issuer's allocation percentage
12 shall be its alternative entire net income allocation percentage, as
13 defined in subdivision (c) of section 11-642 of this chapter, for the
14 preceding year. In the case of such a banking corporation whose alterna-
15 tive entire net income for the preceding year is derived exclusively
16 from business carried on within the city, its issuer's allocation
17 percentage shall be one hundred percent.
18 (B) In the case of a banking corporation described in paragraph two of
19 subdivision (a) of section 11-640 of this chapter which is organized
20 under the laws of a country other than the United States, the issuer's
21 allocation percentage shall be determined by dividing (I) the amount
22 described in clause (i) of subparagraph (A) of paragraph two of subdivi-
23 sion (a) of section 11-642 of this chapter with respect to such issuer
24 or obligor for the preceding year, by (II) the gross income of such
25 issuer or obligor from all sources within and without the United States,
26 for such preceding year, whether or not included in alternative entire
27 net income for such year.
28 (C) In the case of an issuer or obligor described in paragraph nine of
29 subdivision (a) or in paragraph two of subdivision (d) of section 11-640
30 of this chapter, the issuer's allocation percentage shall be determined
31 by dividing the portion of the entire capital of the issuer or obligor
32 allocable to the city for the preceding year by the entire capital,
33 wherever located, of the issuer or obligor for the preceding year.
34 (iii) Provided, however, that if a report or reports for the preceding
35 year are not filed, or if filed do not contain information which would
36 permit the determination of such issuer's allocation percentage, then
37 the issuer's allocation percentage to be used shall, at the discretion
38 of the commissioner of finance, be either (A) the issuer's allocation
39 percentage derived from the most recently filed report or reports of the
40 issuer or obligor or (B) a percentage calculated, by the commissioner of
41 finance, reasonably to indicate the degree of economic presence in the
42 city of the issuer or obligor during the preceding year.
43 (2) adding together the sum so obtained, and
44 (3) dividing the result so obtained by the total of its investment
45 capital invested during such period in stocks, bonds and other securi-
46 ties; provided, however, that in case any investment capital is invested
47 in any stock, bond or other security during only a portion of the period
48 covered by the report, only such portion of such capital shall be taken
49 into account; and provided further, that if a taxpayer's investment
50 allocation percentage is zero, interest received on bank accounts shall
51 be multiplied by its business allocation percentage; and
52 (c) add the products so obtained.
53 (d) Except as provided in subparagraph three of this paragraph or in
54 paragraph (e) of this subdivision, at the election of the taxpayer there
55 shall be deducted from the portion of its entire net income allocated
56 within the city either or both of the items set forth in subparagraphs
S. 8578 552
1 one and two of this paragraph, except that only one of such deductions
2 shall be allowed with respect to any one item of property.
3 (1) Depreciation with respect to any property such as described in
4 subparagraph three of this paragraph, not exceeding twice the depreci-
5 ation allowed with respect to the same property for federal income tax
6 purposes. Such deduction shall be allowed only upon condition that
7 entire net income be computed without any deduction for the depreciation
8 of the same property, and the total of all deductions allowed in any
9 taxable year or years with respect to the depreciation of any such prop-
10 erty shall not exceed its cost or other basis.
11 (2) Expenditures paid or incurred during the taxable year for the
12 construction, reconstruction, erection or acquisition of any property
13 such as described in subparagraph three of this paragraph which is used
14 or to be used for purposes of research and development in the exper-
15 imental or laboratory sense. Such purposes shall not be deemed to
16 include the ordinary testing or inspection of materials or products for
17 quality control, efficiency surveys, management studies, consumer
18 surveys, advertising, promotions or research in connection with liter-
19 ary, historical or similar projects. Such deduction shall be allowed
20 only on condition that entire net income for the taxable year and all
21 succeeding taxable years be computed without the deduction of any such
22 expenditures and without any deduction for depreciation of the same
23 property, except to the extent that its basis may be attributable to
24 factors other than such expenditures, or in case a deduction is allow-
25 able pursuant to this subparagraph for only a part of such expenditures,
26 on condition that any deduction allowed for federal income tax purposes
27 on account of such expenditures or on account of depreciation of the
28 same property be proportionately reduced in computing entire net income
29 for the taxable year and all succeeding taxable years. With respect to
30 property which is used or to be used for research and development only
31 in part, or during only part of its useful life, a proportionate part of
32 such expenditures shall be deductible. If all or part of such expendi-
33 tures with respect to any property shall have been deducted as provided
34 in this subparagraph, and such property is used for purposes other than
35 research and development to a greater extent than originally reported,
36 the taxpayer shall report such use in its report for the first taxable
37 year during which it occurs, and the commissioner of finance may recom-
38 pute the tax for the year or years for which such deduction was allowed,
39 and may assess any additional tax resulting from such recomputation
40 regardless of the time limitations set forth in section 11-674 of this
41 chapter.
42 (3) Such deductions shall be allowed only with respect to tangible
43 property which is depreciable pursuant to section one hundred sixty-sev-
44 en of the internal revenue code, having a situs in the city and used in
45 the taxpayer's trade or business, (A) constructed, reconstructed or
46 erected after December thirty-first, nineteen hundred sixty-five, pursu-
47 ant to a contract which was, on or before December thirty-first, nine-
48 teen hundred sixty-seven, and at all times thereafter, binding on the
49 taxpayer or, property, the physical construction, reconstruction or
50 erection of which began on or before December thirty-first, nineteen
51 hundred sixty-seven or which began after such date pursuant to an order
52 placed on or before December thirty-first, nineteen hundred sixty-seven,
53 and then only with respect to that portion of the basis thereof or the
54 expenditures relating thereto which is properly attributable to such
55 construction, reconstruction or erection after December thirty-first,
56 nineteen hundred sixty-five, or (B) acquired after December thirty-
S. 8578 553
1 first, nineteen hundred sixty-five, pursuant to a contract which was, on
2 or before December thirty-first, nineteen hundred sixty-seven, and at
3 all times thereafter, binding on the taxpayer or pursuant to an order
4 placed on or before December thirty-first, nineteen hundred sixty-seven,
5 by purchase as defined in section one hundred seventy-nine (d) of the
6 internal revenue code, if the original use of such property commenced
7 with the taxpayer, commenced in the city and commenced after December
8 thirty-first, nineteen hundred sixty-five, or (C) acquired, constructed,
9 reconstructed, or erected subsequent to December thirty-first nineteen
10 hundred sixty-seven, if such acquisition, construction, reconstruction
11 or erection is pursuant to a plan of the taxpayer which was in existence
12 December thirty-first, nineteen hundred sixty-seven and not thereafter
13 substantially modified, and such acquisition, construction, recon-
14 struction or erection would qualify under the rules in paragraphs four,
15 five or six of subsection (h) of section forty-eight of the internal
16 revenue code provided all references in such paragraphs four, five and
17 six to the dates October nine, nineteen hundred sixty-six, and October
18 ten, nineteen hundred sixty-six, shall be read as December thirty-first,
19 nineteen hundred sixty-seven. A taxpayer shall be allowed a deduction
20 under clauses (A), (B) or (C) of this subparagraph only if the tangible
21 property shall be delivered or the construction, reconstruction or
22 erection shall be completed on or before December thirty-first, nineteen
23 hundred sixty-nine, except in the case of tangible property which is
24 acquired, constructed, reconstructed or erected pursuant to a contract
25 which was, on or before December thirty-first, nineteen hundred sixty-
26 seven, and at all times thereafter, binding on the taxpayer. Provided,
27 however, for any taxable year beginning on or after January first, nine-
28 teen hundred sixty-eight, a taxpayer shall not be allowed a deduction
29 under this paragraph with respect to tangible personal property leased
30 by it to any other person or corporation. Accordingly, any contract or
31 agreement to lease or rent or for a license to use such property shall
32 be considered a lease. With respect to property which the taxpayer uses
33 itself for purposes other than leasing for part of a taxable year and
34 leases for a part of a taxable year, the taxpayer shall be allowed a
35 deduction under this paragraph in proportion to the part of the year it
36 uses such property.
37 (4) If the deductions allowable for any taxable year, pursuant to this
38 subdivision, exceed the portion of the taxpayer's entire net income
39 allocated to the city for such year, the excess may be carried over to
40 the following taxable year or years and may be deducted from the portion
41 of the taxpayer's entire net income allocated to the city for such year
42 or years.
43 (5) In any taxable year when property is sold or otherwise disposed
44 of, with respect to which a deduction has been allowed pursuant to
45 subparagraph one or two of this paragraph, the gain or loss thereon
46 entering into the computation of federal taxable income shall be disre-
47 garded in computing entire net income, and there shall be added to or
48 subtracted from the portion of entire net income allocated within the
49 city the gain or loss upon such sale or other disposition. In computing
50 such gain or loss the basis of the property sold or disposed of shall be
51 adjusted to reflect the deduction allowed with respect to such property
52 pursuant to subparagraph one or two of this paragraph. Provided, howev-
53 er, that no loss shall be recognized for the purposes of this subpara-
54 graph with respect to a sale or other disposition of property to a
55 person whose acquisition thereof is not a purchase as defined in section
56 one hundred seventy-nine (d) of the internal revenue code.
S. 8578 554
1 (e) At the election of the taxpayer there shall be deducted from the
2 portion of its entire net income allocated within the city either or
3 both of the items set forth in subparagraphs one and two of this para-
4 graph, except that only one of such deductions shall be allowed with
5 respect to any one item of property.
6 (1) Depreciation with respect to any property such as described in
7 subparagraphs three and four of this paragraph, not exceeding twice the
8 depreciation allowed with respect to the same property for federal
9 income tax purposes. Such deduction shall be allowed only upon condition
10 that entire net income be computed without any deduction for the depre-
11 ciation of the same property, and the total of all deductions allowed in
12 any taxable year or years with respect to the depreciation of any such
13 property shall not exceed its cost or other basis multiplied by the
14 taxpayer's business allocation percentage determined under this subdivi-
15 sion for the first year it deducts such depreciation under this para-
16 graph.
17 (2) Expenditures paid or incurred during the taxable year for the
18 construction, reconstruction, erection or acquisition of any property
19 such as described in subparagraph three of this paragraph which is used
20 or to be used for purposes of research and development in the exper-
21 imental or laboratory sense. Such purposes shall not be deemed to
22 include the ordinary testing or inspection of materials or products for
23 quality control, efficiency surveys, management studies, consumer
24 surveys, advertising, promotions or research in connection with liter-
25 ary, historical or similar projects. Such deductions shall be allowed
26 only on condition that it does not exceed the amount of the expenditures
27 multiplied by the taxpayer's business allocation percentage determined
28 under this subdivision for the year the expenditures are paid or
29 incurred and that entire net income for the taxable year and all
30 succeeding taxable years be computed without the deduction of any such
31 expenditures and without any deduction for depreciation of the same
32 property, except to the extent that its basis may be attributable to
33 factors other than such expenditures, or in case a deduction is allow-
34 able pursuant to this subparagraph for only a part of such expenditures,
35 on condition that any deduction allowed for federal income tax purposes
36 on account of such expenditures or on account of depreciation of the
37 same property be proportionately reduced in computing entire net income
38 for the taxable year and all succeeding taxable years. With respect to
39 property which is used or to be used for research and development only
40 in part, or during only part of its useful life, a proportionate part of
41 such expenditures shall be deductible. If all or part of such expendi-
42 tures with respect to any property shall have been deducted as provided
43 in this subparagraph, and such property is used for purposes other than
44 research and development to a greater extent than originally reported,
45 the taxpayer shall report such use in its report for the first taxable
46 year during which it occurs, and the commissioner of finance may recom-
47 pute the tax for the year or years for which such deduction was allowed,
48 and may assess any additional tax resulting from such recomputation
49 regardless of the time limitations set forth in section 11-674 of this
50 chapter.
51 (3) Such deduction shall be allowed only with respect to tangible
52 property which is depreciable pursuant to section one hundred sixty-sev-
53 en of the internal revenue code, having a situs in the city and used in
54 the taxpayer's trade or business (A) the construction, reconstruction or
55 erection of which is completed after December thirty-first, nineteen
56 hundred sixty-seven, and then only with respect to that portion of the
S. 8578 555
1 basis thereof or the expenditures relating thereto which is properly
2 attributable to such construction, reconstruction or erection after
3 December thirty-first, nineteen hundred sixty-five, or (B) acquired
4 after December thirty-first, nineteen hundred sixty-seven by purchase or
5 defined in section one hundred seventy-nine (d) of the internal revenue
6 code, if the original use of such property commenced with the taxpayer,
7 commenced in this state and commenced after December thirty-first nine-
8 teen hundred sixty-five. Provided, however, for any taxable year begin-
9 ning on or after January first, nineteen hundred sixty-eight, a taxpayer
10 shall not be allowed a deduction under this paragraph with respect to
11 tangible personal property leased by it to any other person or corpo-
12 ration. Accordingly, any contract or agreement to lease or rent or for a
13 license to use such property shall be considered a lease. With respect
14 to property which the taxpayer uses itself for purposes other than leas-
15 ing for part of a taxable year and leases for a part of a taxable year,
16 the taxpayer shall be allowed a deduction under this paragraph in
17 proportion to the part of the year it uses such property.
18 (4) A deduction under subparagraph one of this paragraph shall be
19 allowed with respect to tangible property described in subparagraph
20 three only if such property is principally used by the taxpayer in the
21 production of goods by manufacturing; processing; assembling; refining;
22 mining; extracting; farming; agriculture; horticulture; floriculture;
23 viticulture or commercial fishing. For purposes of this subparagraph,
24 manufacturing shall mean the process of working raw materials into wares
25 suitable for use or which gives new shapes, new qualities or new combi-
26 nations to matter which already has gone through some artificial process
27 by the use of machinery, tools, appliances and other similar equipment.
28 Property used in the production of goods shall include machinery, equip-
29 ment or other tangible property which is principally used in the repair
30 and service of other machinery, equipment or other tangible property
31 used principally in the production of goods and shall include all facil-
32 ities used in the manufacturing operation, including storage of material
33 to be used in manufacturing and of the products that are manufactured.
34 At the option of the taxpayer, air and water pollution control facili-
35 ties which qualify for elective deductions under paragraph (g) of subdi-
36 vision eight of section 11-602 of this subchapter may be treated, for
37 purposes of this paragraph, as tangible property principally used in the
38 production of goods by manufacturing; processing; assembling; refining;
39 mining; extracting; farming; agriculture; horticulture; floriculture;
40 viticulture; or commercial fishing, in which event, a deduction shall
41 not be allowed under such paragraph (g).
42 (5) Subject to the limitation imposed by subparagraphs one and two of
43 this paragraph, if the deductions allowable for any taxable year, pursu-
44 ant to this subdivision, exceed the portion of the taxpayer's entire net
45 income allocated to the city for such year, the excess may be carried
46 over to the following taxable year or years and may be deducted from the
47 portion of the taxpayer's entire net income allocated to the city for
48 such year or years.
49 (6) In any taxable year when property is sold or otherwise disposed
50 of, with respect to which a deduction has been allowed pursuant to
51 subparagraph one or two of this paragraph, the gain or loss thereon
52 entering into the computation of federal taxable income shall be disre-
53 garded in computing entire net income, and there shall be added to or
54 subtracted from the portion of entire net income allocated within the
55 city the gain or loss upon such sale or other disposition. In computing
56 such gain or loss the basis of the property sold or disposed of shall be
S. 8578 556
1 adjusted to reflect the deduction allowed with respect to such property
2 pursuant to subparagraph one or two of this paragraph. Provided, howev-
3 er, that no loss shall be recognized for the purposes of this subpara-
4 graph with respect to a sale or other disposition of property to a
5 person whose acquisition thereof is not a purchase as defined in section
6 one hundred seventy-nine (d) of the internal revenue code.
7 4. The portion of the business capital of a taxpayer to be allocated
8 within the city shall be determined by multiplying the amount thereof by
9 the business allocation percentage determined as provided for in this
10 subdivision. Provided, however, such business allocation percentage, for
11 purposes of allocating business capital, shall (a) for taxable years
12 beginning before nineteen hundred ninety-four, be determined without
13 regard to clause (C) of subparagraph six of paragraph (a) of subdivision
14 three of this section and (b) for taxable years beginning after nineteen
15 hundred ninety-three, be determined with regard to such clause (C) but
16 only in the case of a taxpayer subject to the provisions of paragraph
17 (b) of subdivision six of section 11-602 of this subchapter.
18 5. The portion of the investment capital of a taxpayer to be allocated
19 within the city shall be determined by multiplying the amount thereof by
20 the investment allocation percentage determined as provided in this
21 subdivision.
22 7. The portion of the subsidiary capital of a taxpayer to be allocated
23 within the city shall be determined by (a) multiplying the amount of its
24 subsidiary capital invested in each subsidiary during the period covered
25 by its report, or, in the case of any such capital so invested during
26 only a portion of such period, such portion of such capital, by the
27 issuer's allocation percentage, as defined in subparagraph one of para-
28 graph (b) of subdivision three of this section, of each such subsidiary
29 and (b) adding together the sums so obtained.
30 8. If it shall appear to the commissioner of finance that any business
31 or investment allocation percentage determined as provided in this
32 subdivision does not properly reflect the activity, business, income or
33 capital of a taxpayer within the city, the commissioner of finance shall
34 be authorized in his or her discretion, in the case of a business allo-
35 cation percentage, to adjust it by (a) excluding one or more of the
36 factors therein, (b) including one or more other factors, such as
37 expenses, purchases, contract values, minus subcontract values, (c)
38 excluding one or more assets in computing such allocation percentage,
39 provided the income therefrom is also excluded in determining entire net
40 income, or (d) any other similar or different method calculated to
41 effect a fair and proper allocation of the income and capital reasonably
42 attributable to the city, and in the case of an investment allocation
43 percentage to adjust it by excluding one or more assets in computing
44 such percentage provided the income therefrom is also excluded in deter-
45 mining entire net income. The commissioner of finance from time to time
46 shall publish all rulings of general public interest with respect to any
47 application of the provisions of this subdivision.
48 9. If it shall appear to the commissioner of finance that any business
49 allocation percentage determined as provided in subdivisions one through
50 eight of this section does not properly reflect the activity, business,
51 income or capital of a taxpayer within the city, the commissioner of
52 finance shall be authorized in his or her discretion to adjust it by (a)
53 excluding one or more of the factors therein, (b) including one or more
54 other factors, such as expenses, purchases, contract values, minus
55 subcontract values, (c) excluding one or more assets in computing such
56 allocation percentage, provided the income therefrom, is also excluded
S. 8578 557
1 in determining entire net income, or (d) any other similar or different
2 method calculated to effect a fair and proper allocation of the income
3 and capital reasonably attributable to the city, and in the case of an
4 investment allocation percentage, to adjust it by excluding one or more
5 assets in computing such percentage provided the income therefrom is
6 also excluded in determining entire net income. The commissioner of
7 finance from time to time shall publish all rulings of general public
8 interest with respect to any application of the provisions of this
9 subdivision.
10 11. (a) A taxpayer shall be allowed a credit, to be refunded in the
11 manner as provided in this subdivision, against the tax imposed by this
12 chapter. The amount of such credit shall be fifty percent of the tax
13 incurred in market making transactions under the provisions of article
14 twelve of the tax law on such transactions subject to such tax occurring
15 on and after August first, nineteen hundred seventy-six and paid by such
16 taxpayer, except when such tax shall have been paid pursuant to section
17 two hundred seventy-nine-a of such tax law.
18 (b) For purposes of this subdivision:
19 (1) the term "taxpayer" shall mean any corporation subject to tax
20 under this chapter registered with the United States securities and
21 exchange commission in accordance with subsection (b) of section fifteen
22 of the securities exchange act of nineteen hundred thirty-four, as
23 amended, and acting as a dealer in a transaction described in subpara-
24 graph two of this paragraph, and
25 (2) the term "market making transaction" shall mean any transaction
26 involving a sale, including a short sale, by a dealer of shares or
27 certificates subject to the tax imposed by article twelve of the tax
28 law, provided such shares or certificates are sold:
29 (i) as stock in trade or inventory or as property held for sale in the
30 ordinary course of such dealer's trade or business, including transfers
31 which are part of an underwriting,
32 (ii) in (a) a bona fide arbitrage transaction; (b) a bona fide hedge
33 transaction involving a long or short position in any equity security
34 and a long or short position in a security entitling the holder to
35 acquire or sell such equity security; or (c) a risk arbitrage trans-
36 action in connection with a merger, acquisition, tender offer, recap-
37 italization, reorganization, or similar transaction, or
38 (iii) to offset a transaction made in error.
39 Provided, however, that, except as to subclause (c) of clause (ii) of
40 this paragraph, the term "market making transaction" shall not include
41 any sale of shares or certificates identified in such dealer's records
42 as a security held for investment within the meaning of section twelve
43 hundred thirty-six of the internal revenue code.
44 (c) The credit allowed under this subdivision for any taxable year
45 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
46 ited or refunded in accordance with the provisions of section 11-677 of
47 this chapter, except as otherwise provided in subdivision three of
48 section 11-606 and subdivision eleven of section 11-608; provided,
49 however, that the provisions of this title notwithstanding, the amount
50 to be refunded pursuant to this subdivision shall not be paid prior to
51 the first day of the eighth month following the close of the taxable
52 year, and the provisions of subdivision three of section 11-679 of this
53 chapter notwithstanding interest shall be allowed and paid on the over-
54 payment of the credit under this subdivision from the first day of the
55 eleventh month following the close of the taxable year, or three months
S. 8578 558
1 after a claim for the credit or refund provided for in this subdivision
2 has been filed, whichever is later.
3 (d) Provided, however, that the credit provided under this subdivision
4 shall be allowed only to the extent that the amount of credit allowable
5 with respect to market making transactions under the provisions of this
6 subdivision, determined without regard to the provisions of this para-
7 graph, exceeds fifty percent of all rebates, provided for under the
8 provisions of section two hundred eighty-a of the tax law, allowed for
9 such taxes incurred in the same market making transactions with respect
10 to which the credit is determined. No credit shall be allowed under this
11 subdivision with respect to any tax incurred in market making trans-
12 actions occurring on or after October first, nineteen hundred eighty-
13 one.
14 12. (a) In addition to the credit allowed by subdivision eleven of
15 this section, a taxpayer shall be allowed a credit against the tax
16 imposed by this subchapter to be credited or refunded in the manner
17 provided in this section. The amount of such credit shall be the excess
18 of (A) the amount of sales and compensating use taxes imposed by section
19 eleven hundred seven of the tax law during the taxpayer's taxable year
20 which became legally due on or after and was paid on or after July
21 first, nineteen hundred seventy-seven, less any credits or refunds of
22 such taxes, with respect to the purchase or use by the taxpayer of
23 machinery or equipment for use or consumption directly and predominantly
24 in the production of tangible personal property, gas, electricity,
25 refrigeration or steam for sale, by manufacturing, processing, generat-
26 ing, assembling, refining, mining or extracting, or telephone central
27 office equipment or station apparatus or comparable telegraph equipment
28 for use directly and predominantly in receiving at destination or initi-
29 ating and switching telephone or telegraph communication, but not
30 including parts with a useful life of one year or less or tools or
31 supplies used in connection with such machinery, equipment or apparatus
32 over (B) the amount of any credit for such sales and compensating use
33 taxes allowed or allowable against the taxes imposed by subchapter two
34 of chapter eleven of this title for any periods embraced within the
35 taxable year of the taxpayer under this subchapter.
36 (b) The credit allowed under this subdivision for any taxable year
37 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
38 ited or refunded, without interest, in accordance with the provisions of
39 section 11-677 of this chapter.
40 (c) Where the taxpayer receives a refund or credit of any tax imposed
41 under section eleven hundred seven of the tax law for which the taxpayer
42 had claimed a credit under the provisions of this subdivision in a prior
43 taxable year, the amount of such tax refund shall be added to the tax
44 imposed by subdivision one of section 11-603 of this subchapter, and
45 such amount shall be subtracted in computing entire net income for the
46 taxable year.
47 13. (a) In addition to any other credit allowed by this section, a
48 taxpayer shall be allowed a credit against the tax imposed by this
49 subchapter to be credited or refunded without interest, in the manner
50 provided in this section.
51 (1) Where a taxpayer shall have relocated to the city from a location
52 outside the state, and by such relocation shall have created a minimum
53 of one hundred industrial or commercial employment opportunities; and
54 where such taxpayer shall have entered into a written lease for the
55 relocation premises, the terms of which lease provide for increased
56 additional payments to the landlord which are based solely and directly
S. 8578 559
1 upon any increase or addition in real estate taxes imposed on the leased
2 premises, the taxpayer upon approval and certification by the industrial
3 and commercial incentive board shall be entitled to a credit against the
4 tax imposed by this subchapter. The amount of such credit shall be: An
5 amount equal to the annual increased payments actually made by the
6 taxpayer to the landlord which are solely and directly attributable to
7 an increase or addition to the real estate tax imposed upon the leased
8 premises. Such credit shall be allowed only to the extent that the
9 taxpayer has not otherwise claimed said amount as a deduction against
10 the tax imposed by this subchapter.
11 The industrial and commercial incentive board in approving and certi-
12 fying to the qualifications of the taxpayer to receive the tax credit
13 provided for in this subdivision shall first determine that the appli-
14 cant has met the requirements of this section, and further, that the
15 granting of the tax credit to the applicant is in the "public interest".
16 In determining that the granting of the tax credit is in the public
17 interest, the board shall make affirmative findings that: the granting
18 of the tax credit to the applicant will not effect an undue hardship on
19 similar taxpayers already located within the city; the existence of this
20 tax incentive has been instrumental in bringing about the relocation of
21 the applicant to the city; and the granting of the tax credit will
22 foster the economic recovery and economic development of the city.
23 The tax credit, if approved and certified by the industrial and
24 commercial incentive board, must be utilized annually by the taxpayer
25 for the length of the term of the lease or for a period not to exceed
26 ten years from the date of relocation whichever period is shorter.
27 (2) When used in this section, the following terms shall have the
28 following meanings:
29 (i) "Employment opportunity" means the creation of a full time posi-
30 tion of gainful employment for an industrial or commercial employee and
31 the actual hiring of such employee for the said position.
32 (ii) "Industrial employee" means one engaged in the manufacture or
33 assembling of tangible goods or the processing of raw materials.
34 (iii) "Commercial employee" means one engaged in the buying, selling
35 or otherwise providing of goods or services other than on a retail
36 basis.
37 (iv) "Retail" means the selling or otherwise disposing or furnishing
38 of tangible goods or services directly to the ultimate user or consumer.
39 (v) "Full time position" means the hiring of an industrial or commer-
40 cial employee in a position of gainful employment where the number of
41 hours worked by such employees is not less than thirty hours during any
42 given work week.
43 (vi) "Industrial and commercial incentive board" means the board
44 created pursuant to part three of subchapter two of chapter two of this
45 title.
46 (b) The credit allowed under this subdivision for any taxable year
47 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
48 ited or refunded, without interest, in accordance with the provisions of
49 section 11-677 of this chapter.
50 14. (a) In addition to any other credit allowed by this section, a
51 taxpayer shall be allowed a credit against the tax imposed by this
52 subchapter to be credited or refunded without interest, in the manner
53 provided in this section. The amount of such credit shall be:
54 (1) A maximum of three hundred dollars for each commercial employment
55 opportunity and a maximum of five hundred dollars for each industrial
56 employment opportunity relocated to the city from an area outside the
S. 8578 560
1 state. Such credit shall be allowed to a taxpayer who relocates a mini-
2 mum of ten employment opportunities. The credit shall be allowed against
3 employment opportunity relocation costs incurred by the taxpayer. Such
4 credit shall be allowed only to the extent that the taxpayer has not
5 claimed a deduction for allowable employment opportunity relocation
6 costs. Such credit may be taken by the taxpayer in whole or in part in
7 the year in which the employment opportunity is relocated by such
8 taxpayer or either of the two years succeeding such event, provided,
9 however, no credit shall be allowed under this subdivision to a taxpayer
10 for industrial employment opportunities relocated to premises (A) that
11 are within an industrial business zone established pursuant to section
12 22-626 of this code and (B) for which a binding contract to purchase or
13 lease was first entered into by the taxpayer on or after July first, two
14 thousand five.
15 The commissioner of finance is empowered to promulgate rules and regu-
16 lations and to prescribe the form of application to be used by a taxpay-
17 er seeking such credit.
18 (2) When used in this section: (i) "Employment opportunity" means the
19 creation of a full time position of gainful employment for an industrial
20 or commercial employee and the actual hiring of such employee for the
21 said position.
22 (ii) "Industrial employee" means one engaged in the manufacture or
23 assembling of tangible goods or the processing of raw materials.
24 (iii) "Commercial employee" means one engaged in the buying, selling
25 or otherwise providing of goods or services other than on a retail
26 basis.
27 (iv) "Retail" means the selling or otherwise disposing of tangible
28 goods directly to the ultimate user or consumer.
29 (v) "Full time position" means the hiring of an industrial or commer-
30 cial employee in a position of gainful employment where the number of
31 hours worked by such employee is not less than thirty hours during any
32 given work week.
33 (vi) "Employment opportunity relocation costs" means the costs
34 incurred by the taxpayer in moving furniture, files, papers and office
35 equipment into the city from a location outside the state; the costs
36 incurred by the taxpayer in the moving and installation of machinery and
37 equipment into the city from a location outside the state; the costs of
38 installation of telephones and other communications equipment required
39 as a result of the relocation to the city from a location outside the
40 state; the cost incurred in the purchase of office furniture and
41 fixtures required as a result of the relocation to the city from a
42 location outside the state; and the cost of renovation of the premises
43 to be occupied as a result of the relocation provided, however, that
44 such renovation costs shall be allowable only to the extent that they do
45 not exceed seventy-five cents per square foot of the total area utilized
46 by the taxpayer in the occupied premises.
47 (b) The credit allowed under this section for any taxable year shall
48 be deemed to be an overpayment of tax by the taxpayer to be credited or
49 refunded without interest in accordance with the provisions of section
50 11-677 of this chapter.
51 17. (a) In addition to any other credit allowed by this section, a
52 taxpayer that has obtained the certifications required by chapter six-B
53 of title twenty-two of the preceding municipality code shall be allowed
54 a credit against the tax imposed by this subchapter. The amount of the
55 credit shall be the amount determined by multiplying five hundred
56 dollars or, in the case of a taxpayer that has obtained pursuant to
S. 8578 561
1 chapter six-B of such title twenty-two a certification of eligibility
2 dated on or after July first, nineteen hundred ninety-five, one thousand
3 dollars or, in the case of an eligible business that has obtained pursu-
4 ant to chapter six-B of such title twenty-two a certification of eligi-
5 bility dated on or after July first, two thousand, for a relocation to
6 eligible premises located within a revitalization area defined in subdi-
7 vision (n) of section 22-621 of the code of the preceding municipality,
8 three thousand dollars, by the number of eligible aggregate employment
9 shares maintained by the taxpayer during the taxable year with respect
10 to particular premises to which the taxpayer has relocated; provided,
11 however, with respect to a relocation for which no application for a
12 certificate of eligibility is submitted prior to July first, two thou-
13 sand three, to eligible premises that are not within a revitalization
14 area, if the date of such relocation as determined pursuant to subdivi-
15 sion (j) of section 22-621 of the code of the preceding municipality is
16 before July first, nineteen hundred ninety-five, the amount to be multi-
17 plied by the number of eligible aggregate employment shares shall be
18 five hundred dollars, and with respect to a relocation for which no
19 application for a certificate of eligibility is submitted prior to July
20 first, two thousand three, to eligible premises that are within a revi-
21 talization area, if the date of such relocation as determined pursuant
22 to subdivision (j) of such section is before July first, nineteen
23 hundred ninety-five, the amount to be multiplied by the number of eligi-
24 ble aggregate employment shares shall be five hundred dollars, and if
25 the date of such relocation as determined pursuant to subdivision (j) of
26 such section is on or after July first, nineteen hundred ninety-five,
27 and before July first, two thousand, one thousand dollars; provided,
28 however, that no credit shall be allowed for the relocation of any
29 retail activity or hotel services; provided, further, that no credit
30 shall be allowed under this subdivision to any taxpayer that has elected
31 pursuant to subdivision (d) of section 22-622 of the code of the preced-
32 ing municipality to take such credit against a gross receipts tax
33 imposed by chapter eleven of this title; and provided that in the case
34 of an eligible business that has obtained pursuant to chapter six-B of
35 such title twenty-two certifications of eligibility for more than one
36 relocation, the portion of the total amount of eligible aggregate
37 employment shares to be multiplied by the dollar amount specified in
38 this subdivision for each such certification of a relocation shall be
39 the number of total attributed eligible aggregate employment shares
40 determined with respect to such relocation pursuant to subdivision (o)
41 of section 22-621 of the code of the preceding municipality. For
42 purposes of this subdivision, the terms "eligible aggregate employment
43 shares," "relocate," "retail activity" and "hotel services" shall have
44 the meanings ascribed by section 22-621 of the code of the preceding
45 municipality.
46 (b) The credit allowed under this subdivision with respect to eligible
47 aggregate employment shares maintained with respect to particular prem-
48 ises to which the taxpayer has relocated shall be allowed for the first
49 taxable year during which such eligible aggregate employment shares are
50 maintained with respect to such premises and for any of the twelve
51 succeeding taxable years during which eligible aggregate employment
52 shares are maintained with respect to such premises; provided that the
53 credit allowed for the twelfth succeeding taxable year shall be calcu-
54 lated by multiplying the number of eligible aggregate employment shares
55 maintained with respect to such premises in the twelfth succeeding taxa-
56 ble year by the lesser of one and a fraction the numerator of which is
S. 8578 562
1 such number of days in the taxable year of relocation less the number of
2 days the eligible business maintained employment shares in the eligible
3 premises in the taxable year of relocation and the denominator of which
4 is the number of days in such twelfth succeeding taxable year during
5 which such eligible aggregate employment shares are maintained with
6 respect to such premises. Except as provided in paragraph (d) of this
7 subdivision, if the amount of the credit allowable under this subdivi-
8 sion for any taxable year exceeds the tax imposed for such year, the
9 excess may be carried over, in order, to the five immediately succeeding
10 taxable years and, to the extent not previously deductible, may be
11 deducted from the taxpayer's tax for such years.
12 (c) The credit allowable under this subdivision shall be deducted
13 after the credit allowed by subdivision eighteen of this section, but
14 prior to the deduction of any other credit allowed by this section.
15 (d) In the case of a taxpayer that has obtained a certification of
16 eligibility pursuant to chapter six-B of title twenty-two of the code of
17 the preceding municipality dated on or after July first, two thousand
18 for a relocation to eligible premises located within the revitalization
19 area defined in subdivision (n) of section 22-621 of the code of the
20 preceding municipality, the credits allowed under this subdivision, or
21 in the case of a taxpayer that has relocated more than once, the portion
22 of such credits attributed to such certification of eligibility pursuant
23 to paragraph (a) of this subdivision, against the tax imposed by this
24 chapter for the taxable year of such relocation and for the four taxable
25 years immediately succeeding the taxable year of such relocation, shall
26 be deemed to be overpayments of tax by the taxpayer to be credited or
27 refunded, without interest, in accordance with the provisions of section
28 11-677 of this chapter. For such taxable years, such credits or portions
29 thereof may not be carried over to any succeeding taxable year;
30 provided, however, that this paragraph shall not apply to any relocation
31 for which an application for a certification of eligibility was not
32 submitted prior to July first, two thousand three, unless the date of
33 such relocation is on or after July first, two thousand.
34 17-a. (a) In addition to any other credit allowed by this section, a
35 taxpayer shall be allowed a credit against the tax imposed by this
36 subchapter to be credited or refunded in the manner provided in this
37 subdivision. The amount of such credit shall be equal to the amount of
38 sales and compensating use taxes imposed by section eleven hundred seven
39 of the tax law during the taxpayer's taxable year, and the amount of any
40 interest imposed in connection therewith, which was paid after January
41 first, nineteen hundred ninety-five, less any credit or refund of such
42 taxes, or such interest, with respect to the purchase or use by the
43 taxpayer of the services described in subdivision (b) of section eleven
44 hundred five-b of the tax law.
45 (b) The credit allowed under this subdivision for any taxable year
46 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
47 ited or refunded, without interest, in accordance with the provisions of
48 section 11-677 of this chapter.
49 (c) Where the taxpayer receives a refund or credit of any tax imposed
50 under section eleven hundred seven of the tax law, or of any interest
51 imposed in connection therewith, for which the taxpayer had claimed a
52 credit under the provisions of this subdivision in a prior taxable year,
53 the amount of such tax, or such interest, refund or credit shall be
54 added to the tax imposed by subdivision one of section 11-603 of this
55 subchapter, and such amount shall be subtracted in computing entire net
56 income for the taxable year.
S. 8578 563
1 17-b. (a) For taxable years beginning on or after January first, two
2 thousand six, in addition to any other credit allowed by this section,
3 an eligible business that first enters into a binding contract on or
4 after July first, two thousand five to purchase or lease eligible prem-
5 ises to which it relocates shall be allowed a one-time credit against
6 the tax imposed by this subchapter to be credited or refunded in the
7 manner hereinafter provided in this subdivision. The amount of such
8 credit shall be one thousand dollars per full-time employee; provided,
9 however, that the amount of such credit shall not exceed the lesser of
10 actual relocation costs or one hundred thousand dollars.
11 (b) When used in this subdivision, the following terms shall have the
12 following meanings:
13 (i) "Eligible business" means any business subject to tax under this
14 subchapter that (1) has been conducting substantial business operations
15 and engaging primarily in industrial and manufacturing activities at one
16 or more locations within the city of Staten Island or outside the state
17 of New York continuously during the twenty-four consecutive full months
18 immediately preceding relocation, (2) has leased the premises from which
19 it relocates continuously during the twenty-four consecutive full months
20 immediately preceding relocation, (3) first enters into a binding
21 contract on or after July first, two thousand five to purchase or lease
22 eligible premises to which such business will relocate, and (4) will be
23 engaged primarily in industrial and manufacturing activities at such
24 eligible premises.
25 (ii) "Eligible premises" means premises located entirely within an
26 industrial business zone. For any eligible business, an industrial busi-
27 ness zone tax credit shall not be granted with respect to more than one
28 eligible premises.
29 (iii) "Full-time employee" means (1) one person gainfully employed in
30 an eligible premises by an eligible business where the number of hours
31 required to be worked by such person is not less than thirty-five hours
32 per week; or (2) two persons gainfully employed in an eligible premises
33 by an eligible business where the number of hours required to be worked
34 by each such person is more than fifteen hours per week but less than
35 thirty-five hours per week.
36 (iv) "Industrial business zone" means an area within the city of
37 Staten Island established pursuant to section 22-626 of the code of the
38 preceding municipality.
39 (v) "Industrial business zone tax credit" means a credit, as provided
40 for in this subdivision, against a tax imposed under this subchapter.
41 (vi) "Industrial and manufacturing activities" means activities
42 involving the assembly of goods to create a different article, or the
43 processing, fabrication, or packaging of goods. Industrial and manufac-
44 turing activities shall not include waste management or utility
45 services.
46 (vii) "Relocation" means the physical relocation of furniture,
47 fixtures, equipment, machinery and supplies directly to an eligible
48 premises, from one or more locations of an eligible business, including
49 at least one location at which such business conducts substantial busi-
50 ness operations and engages primarily in industrial and manufacturing
51 activities. For purposes of this subdivision, the date of relocation
52 shall be (1) the date of the completion of the relocation to the eligi-
53 ble premises or (2) ninety days from the commencement of the relocation
54 to the eligible premises, whichever is earlier.
55 (viii) "Relocation costs" means costs incurred in the relocation of
56 such furniture, fixtures, equipment, machinery and supplies, including,
S. 8578 564
1 but not limited to, the cost of dismantling and reassembling equipment
2 and the cost of floor preparation necessary for the reassembly of the
3 equipment. Relocation costs shall include only such costs that are
4 incurred during the ninety-day period immediately following the
5 commencement of the relocation to an eligible premises. Relocation costs
6 shall not include costs for structural or capital improvements or items
7 purchased in connection with the relocation.
8 (c) The credit allowed under this subdivision for any taxable year
9 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
10 ited or refunded without interest, in accordance with the provisions of
11 section 11-677 of this chapter.
12 (d) The number of full-time employees for the purposes of calculating
13 an industrial business tax credit shall be the average number of full-
14 time employees, calculated on a weekly basis, employed in the eligible
15 premises by the eligible business in the fifty-two week period imme-
16 diately following the earlier of (1) the date of the completion of the
17 relocation to eligible premises or (2) ninety days from the commencement
18 of the relocation to the eligible premises.
19 (e) The credit allowed under this subdivision must be taken by the
20 taxpayer in the taxable year in which such twelve-month period selected
21 by the taxpayer ends.
22 (f) For the purposes of calculating entire net income in the taxable
23 year that an industrial business tax credit is allowed, a taxpayer must
24 add back the amount of the credit allowed under this subdivision, to the
25 extent of any relocation costs deducted in the current taxable year or a
26 prior taxable year in calculating federal taxable income.
27 (g) The credit allowed under this subdivision shall not be granted for
28 an eligible business for more than one relocation, provided, however, an
29 industrial business tax credit shall not be granted if the eligible
30 business receives benefits pursuant to chapter six-B or six-C of title
31 twenty-two of the code of the preceding municipality, through a grant
32 program administered by the business relocation assistance corporation,
33 or through the New York city printers relocation fund grant.
34 (h) The commissioner of finance is authorized to promulgate rules and
35 regulations and to prescribe forms necessary to effectuate the purposes
36 of this subdivision.
37 18. (a) If a corporation is a partner in an unincorporated business
38 taxable under chapter five of this title, and is required to include in
39 entire net income its distributive share of income, gain, loss and
40 deductions of, or guaranteed payments from, such unincorporated busi-
41 ness, such corporation shall be allowed a credit against the tax imposed
42 by this subchapter equal to the lesser of the amounts determined in
43 subparagraphs one and two of this paragraph:
44 (1) The amount determined in this subparagraph is the product of (A)
45 the sum of (i) the tax imposed by chapter five of this title on the
46 unincorporated business for its taxable year ending within or with the
47 taxable year of the corporation and paid by the unincorporated business
48 and (ii) the amount of any credit or credits taken by the unincorporated
49 business under section 11-503 of this title, except the credit allowed
50 by subdivision (b) of such section, for its taxable year ending within
51 or with the taxable year of the corporation, to the extent that such
52 credits do not reduce such unincorporated business's tax below zero, and
53 (B) a fraction, the numerator of which is the net total of the corpo-
54 ration's distributive share of income, gain, loss and deductions of, and
55 guaranteed payments from, the unincorporated business for such taxable
56 year, and the denominator of which is the sum, for such taxable year, of
S. 8578 565
1 the net total distributive shares of income, gain, loss and deductions
2 of, and guaranteed payments to, all partners in the unincorporated busi-
3 ness for whom or which such net total, as separately determined for each
4 partner, is greater than zero.
5 (2) The amount determined in this subparagraph is the product of (A)
6 the excess of (i) the tax computed under clause one of subparagraph (a)
7 of paragraph E of subdivision one of this section, without allowance of
8 any credits allowed by this section, over (ii) the tax so computed,
9 determined as if the corporation had no such distributive share or guar-
10 anteed payments with respect to the unincorporated business, and (B) a
11 fraction, the numerator of which is four and the denominator of which is
12 eight and eighty-five one-hundredths, provided, however, that the
13 amounts computed in clauses (i) and (ii) of this subparagraph shall be
14 computed with the following modifications:
15 (I) such amounts shall be computed without taking into account any
16 carryforward or carryback by the partner of a net operating loss;
17 (II) if, prior to taking into account any distributive share or guar-
18 anteed payments from any unincorporated business or any net operating
19 loss carryforward or carryback, the entire net income of the partner is
20 less than zero, such entire net income shall be treated as zero; and
21 (III) if such partner's net total distributive share of income, gain,
22 loss and deductions of, and guaranteed payments from, any unincorporated
23 business is less than zero, such net total shall be treated as zero. The
24 amount determined in this subparagraph shall not be less than zero.
25 (b)(1) Notwithstanding anything to the contrary in paragraph (a) of
26 this subdivision, in the case of a corporation that, before the applica-
27 tion of this subdivision or any other credit allowed by this section, is
28 liable for the tax on entire net income under clause one of subparagraph
29 (a) of paragraph E of subdivision one of this section, the credit or the
30 sum of the credits that may be taken by such corporation for a taxable
31 year under this subdivision with respect to an unincorporated business
32 or unincorporated businesses in which it is a partner shall not exceed
33 the tax so computed, without allowance of any credits allowed by this
34 section, multiplied by a fraction the numerator of which is four and the
35 denominator of which is eight and eighty-five one-hundredths. If the
36 credit allowed under this subdivision or the sum of such credits exceeds
37 the product of such tax and such fraction, the amount of the excess may
38 be carried forward, in order, to each of the seven immediately succeed-
39 ing taxable years and, to the extent not previously taken, shall be
40 allowed as a credit in each of such years. Accordingly, the credit
41 determined for the taxable year under paragraph (a) of this subdivision
42 shall be taken before taking any credit carryforward pursuant to this
43 paragraph and the credit carryforward attributable to the earliest taxa-
44 ble year shall be taken before taking a credit carryforward attributable
45 to a subsequent taxable year.
46 (2) Notwithstanding anything to the contrary in paragraph (a) of this
47 subdivision, in the case of a corporation that, before the application
48 of this subdivision or any other credit allowed by this section, is
49 liable for the tax on entire net income plus certain salaries and other
50 compensation under clause three of subparagraph (a) of paragraph E of
51 subdivision one of this section, the maximum credit that may be taken in
52 any taxable year is the amount that will reduce the tax so computed,
53 without allowance of any credits allowed by this section, to zero. For
54 purposes of this paragraph each dollar of credit shall be applied so as
55 to reduce such tax for taxable years beginning before January first, two
56 thousand seven by sixty-six and thirty-eight one-hundredths cents; for
S. 8578 566
1 taxable years beginning on or after January first, two thousand seven
2 and before January first, two thousand eight by fifty-eight and eight
3 one-hundredths cents; for taxable years beginning on or after January
4 first, two thousand eight and before January first, two thousand nine by
5 forty-nine and seventy-eight one-hundredths cents; for taxable years
6 beginning on or after January first, two thousand nine and before Janu-
7 ary first, two thousand ten by forty-one and forty-eight one-hundredths
8 cents; and for taxable years beginning on or after January first, two
9 thousand ten by thirty-three and nineteen one-hundredths cents. If the
10 amount of credit allowed under this subdivision or the sum of such cred-
11 its exceeds the amount that may be taken against such tax, the amount of
12 the excess may be carried forward, in order, to each of the seven imme-
13 diately succeeding taxable years and, to the extent not previously
14 taken, shall be allowed as a credit in each of such years. Accordingly,
15 the credit determined for the taxable year under paragraph (a) of this
16 subdivision shall be taken before taking any credit carryforward pursu-
17 ant to this paragraph and the credit carryforward attributable to the
18 earliest taxable year shall be taken before taking a credit carryforward
19 attributable to a subsequent taxable year.
20 (3) No credit allowed under this subdivision may be taken in a taxable
21 year by a taxpayer that, in the absence of such credit, would be liable
22 for the tax computed on the basis of business and investment capital
23 under clause two of subparagraph (a) of paragraph E of subdivision one
24 of this section or the fixed-dollar minimum tax under clause four of
25 subparagraph (a) of paragraph E of subdivision one of this section. No
26 credit allowed under this subdivision may be taken against the tax
27 computed on the basis of subsidiary capital under subparagraph (b) of
28 paragraph E of subdivision one of this section.
29 (c) For corporations that file a report on a combined basis pursuant
30 to subdivision four of section 11-605 of this chapter, the credit
31 allowed by this subdivision shall be computed as if the combined group
32 were the partner in each unincorporated business from which any of the
33 members of such group had a distributive share or guaranteed payments,
34 provided, however, if more than one member of the combined group is a
35 partner in the same unincorporated business, for purposes of the calcu-
36 lation required in subparagraph one of paragraph (a) of this subdivi-
37 sion, the numerator of the fraction described in clause (B) of such
38 subparagraph one shall be the sum of the net total distributive shares
39 of income, gain, loss and deductions of, and guaranteed payments from,
40 the unincorporated business of all of the partners of the unincorporated
41 business within the combined group for which such net total, as sepa-
42 rately determined for each partner, is greater than zero, and the denom-
43 inator of such fraction shall be the sum of the net total distributive
44 shares of income, gain, loss and deductions of, and guaranteed payments
45 from, the unincorporated business of all partners in the unincorporated
46 business for whom or which such net total, as separately determined for
47 each partner, is greater than zero.
48 (d) The credit allowed by this subdivision shall not be allowed to a
49 partner in an unincorporated business with respect to any tax paid by
50 the unincorporated business under chapter five of this title for any
51 taxable year beginning before July first, nineteen hundred ninety-four.
52 (e) Notwithstanding any other provision of this subchapter, the credit
53 allowable under this subdivision shall be taken prior to the taking of
54 any other credit allowed by this section. Notwithstanding any other
55 provision of this subchapter, the application of this subdivision shall
S. 8578 567
1 not change the basis on which the taxpayer's tax is computed under para-
2 graph E of subdivision one of this section.
3 19. Lower Manhattan relocation and employment assistance credit. (a)
4 In addition to any other credit allowed by this section, a taxpayer that
5 has obtained the certifications required by chapter six-C of title twen-
6 ty-two of the code of the preceding municipality shall be allowed a
7 credit against the tax imposed by this chapter. The amount of the credit
8 shall be the amount determined by multiplying three thousand dollars by
9 the number of eligible aggregate employment shares maintained by the
10 taxpayer during the taxable year with respect to eligible premises to
11 which the taxpayer has relocated; provided, however, that no credit
12 shall be allowed for the relocation of any retail activity or hotel
13 services; provided, further, that no credit shall be allowed under this
14 subdivision to any taxpayer that has elected pursuant to subdivision (d)
15 of section 22-624 of the code of the preceding municipality to take such
16 credit against a gross receipts tax imposed under chapter eleven of this
17 title. For purposes of this subdivision, the terms "eligible aggregate
18 employment shares," "eligible premises," "relocate," "retail activity"
19 and "hotel services" shall have the meanings ascribed by section 22-623
20 of the code of the preceding municipality.
21 (b) The credit allowed under this subdivision with respect to eligible
22 aggregate employment shares maintained with respect to eligible premises
23 to which the taxpayer has relocated shall be allowed for the taxable
24 year of the relocation and for any of the twelve succeeding taxable
25 years during which eligible aggregate employment shares are maintained
26 with respect to eligible premises; provided that the credit allowed for
27 the twelfth succeeding taxable year shall be calculated by multiplying
28 the number of eligible aggregate employment shares maintained with
29 respect to eligible premises in the twelfth succeeding taxable year by
30 the lesser of one and a fraction the numerator of which is such number
31 of days in the taxable year of relocation less the number of days the
32 taxpayer maintained employment shares in eligible premises in the taxa-
33 ble year of relocation and the denominator of which is the number of
34 days in such twelfth taxable year during which such eligible aggregate
35 employment shares are maintained with respect to such premises.
36 (c) Except as provided in paragraph (d) of this subdivision, if the
37 amount of the credit allowable under this subdivision for any taxable
38 year exceeds the tax imposed for such year, the excess may be carried
39 over, in order, to the five immediately succeeding taxable years and, to
40 the extent not previously deductible, may be deducted from the taxpay-
41 er's tax for such years.
42 (d) The credits allowed under this subdivision, against the tax
43 imposed by this chapter for the taxable year of the relocation and for
44 the four taxable years immediately succeeding the taxable year of such
45 relocation, shall be deemed to be overpayments of tax by the taxpayer to
46 be credited or refunded, without interest, in accordance with the
47 provisions of section 11-677 of this chapter. For such taxable years,
48 such credits or portions thereof may not be carried over to any succeed-
49 ing taxable year.
50 (e) The credit allowable under this subdivision shall be deducted
51 after the credits allowed by subdivisions seventeen and eighteen of this
52 section, but prior to the deduction of any other credit allowed by this
53 section.
54 20. Film production credit. (a)(1) allowance of credit. A taxpayer
55 which is a qualified film production company, and which is subject to
56 tax under this subchapter, shall be allowed a credit against such tax,
S. 8578 568
1 pursuant to the provisions in paragraph (c) of this subdivision, to be
2 computed as provided in this subdivision.
3 (2) The amount of the credit shall be the product of five percent and
4 the qualified production costs paid or incurred in the production of a
5 qualified film, provided that the qualified production costs, excluding
6 post production costs, paid or incurred which are attributable to the
7 use of tangible property or the performance of services at a qualified
8 film production facility in the production of such qualified film equal
9 or exceed seventy-five percent of the production costs, excluding post
10 production costs, paid or incurred which are attributable to the use of
11 tangible property or the performance of services at any film production
12 facility within and without the city of Staten Island in the production
13 of such qualified film. However, if the qualified production costs,
14 excluding post production costs, which are attributable to the use of
15 tangible property or the performance of services at a qualified film
16 production facility in the production of such qualified film are less
17 than three million dollars, then the portion of the qualified production
18 costs attributable to the use of tangible property or the performance of
19 services in the production of such qualified film outside of a qualified
20 film production facility shall be allowed only if the shooting days
21 spent in the city of Staten Island outside of a film production facility
22 in the production of such qualified film equal or exceed seventy-five
23 percent of the total shooting days spent within and without the city of
24 Staten Island outside of a film production facility in the production of
25 such qualified film. The credit shall be allowed for the taxable year in
26 which the production of such qualified film is completed.
27 (3) No qualified production costs used by a taxpayer either as the
28 basis for the allowance of the credit provided for under this subdivi-
29 sion or used in the calculation of the credit provided for under this
30 subdivision shall be used by such taxpayer to claim any other credit
31 allowed pursuant to this title.
32 (b) Definitions. As used in this subdivision, the following terms
33 shall have the following meanings:
34 (1) "Qualified production costs" means production costs only to the
35 extent such costs are attributable to the use of tangible property or
36 the performance of services within the city of New York directly and
37 predominantly in the production, including pre-production and post
38 production, of a qualified film.
39 (2) "Production costs" means any costs for tangible property used and
40 services performed directly and predominantly in the production, includ-
41 ing pre-production and post production, of a qualified film.
42 "Production costs" shall not include (i) costs for a story, script or
43 scenario to be used for a qualified film and (ii) wages or salaries or
44 other compensation for writers, directors, including music directors,
45 producers and performers, other than background actors with no scripted
46 lines. "Production costs" generally include technical and crew
47 production costs, such as expenditures for film production facilities,
48 or any part thereof, props, makeup, wardrobe, film processing, camera,
49 sound recording, set construction, lighting, shooting, editing and
50 meals.
51 (3) "Qualified film" means a feature-length film, television film,
52 television pilot and/or each episode of a television series, regardless
53 of the medium by means of which the film, pilot or episode is created or
54 conveyed. "Qualified film" shall not include (i) a documentary film,
55 news or current affairs program, interview or talk program, "how-to"
56 (i.e., instructional) film or program, film or program consisting prima-
S. 8578 569
1 rily of stock footage, sporting event or sporting program, game show,
2 award ceremony, film or program intended primarily for industrial,
3 corporate or institutional end-users, fundraising film or program,
4 daytime drama (i.e., daytime "soap opera"), commercials, music videos or
5 "reality" program, or (ii) a production for which records are required
6 under section 2257 of title 18, United States code, to be maintained
7 with respect to any performer in such production, reporting of books,
8 films, etc. with respect to sexually explicit conduct.
9 (4) "Film production facility" shall mean a building and/or complex of
10 buildings and their improvements and associated back-lot facilities in
11 which films are or are intended to be regularly produced and which
12 contain at least one sound stage.
13 (5) "Qualified film production facility" shall mean a film production
14 facility in the city of Staten Island, which contains at least one sound
15 stage having a minimum of seven thousand square feet of contiguous
16 production space.
17 (6) "Qualified film production company" shall mean a corporation which
18 is principally engaged in the production of a qualified film and
19 controls the qualified film during production.
20 (c) Application of credit. (1) The credit allowed under this subdivi-
21 sion for any taxable year shall not reduce the tax due for such year to
22 less than the amount prescribed in clause four of subparagraph (a) of
23 paragraph E of subdivision one of this section. Provided, however, that
24 if the amount of the credit allowable under this subdivision for any
25 taxable year reduces the tax to such amount, fifty percent of the excess
26 shall be treated as an overpayment of tax to be credited or refunded in
27 accordance with the provisions of section 11-677 of this chapter;
28 provided, however, the provisions of section 11-679 of this chapter
29 notwithstanding, no interest shall be paid thereon. The balance of such
30 credit not credited or refunded in such taxable year may be carried over
31 to the immediately succeeding taxable year and may be credited against
32 the taxpayer's tax for such year. The excess, if any, of the amount of
33 the credit over the tax for such succeeding year shall be treated as an
34 overpayment of tax to be credited or refunded in accordance with the
35 provisions of section 11-677 of this chapter. Provided, however, the
36 provisions of section 11-679 of this chapter notwithstanding, no inter-
37 est shall be paid thereon.
38 (2) Notwithstanding anything contained in this section to the contra-
39 ry, the credit provided by this subdivision shall be allowed against the
40 taxes authorized by this chapter for the taxable year after reduction by
41 all other credits permitted by this chapter.
42 21. Biotechnology credit. (a) (1) A taxpayer that is a qualified
43 emerging technology company, engages in biotechnologies, and meets the
44 eligibility requirements of this subdivision, shall be allowed a credit
45 against the tax imposed by this subchapter. The amount of credit shall
46 be equal to the sum of the amounts specified in subparagraphs three,
47 four, and five of this paragraph, subject to the limitations in subpara-
48 graph seven of this paragraph and paragraph (b) of this subdivision. For
49 the purposes of this subdivision, "qualified emerging technology compa-
50 ny" shall mean a company located in a city: (A) whose primary products
51 or services are classified as emerging technologies and whose total
52 annual product sales are ten million dollars or less; or (B) a company
53 that has research and development activities in city and whose ratio of
54 research and development funds to net sales equals or exceeds the aver-
55 age ratio for all surveyed companies classified as determined by the
56 National Science Foundation in the most recent published results from
S. 8578 570
1 its Survey of Industry Research and Development, or any comparable
2 successor survey as determined by the department, and whose total annual
3 product sales are ten million dollars or less. For the purposes of this
4 subdivision, the definition of research and development funds shall be
5 the same as that used by the National Science Foundation in the afore-
6 mentioned survey. For the purposes of this subdivision, "biotechnolo-
7 gies" shall mean the technologies involving the scientific manipulation
8 of living organisms, especially at the molecular and/or the sub-molecu-
9 lar genetic level, to produce products conducive to improving the lives
10 and health of plants, animals, and humans; and the associated scientific
11 research, pharmacological, mechanical, and computational applications
12 and services connected with these improvements. Activities included with
13 such applications and services shall include, but not be limited to,
14 alternative mRNA splicing, DNA sequence amplification, antigenetic
15 switching bioaugmentation, bioenrichment, bioremediation, chromosome
16 walking, cytogenetic engineering, DNA diagnosis, fingerprinting, and
17 sequencing, electroporation, gene translocation, genetic mapping, site-
18 directed mutagenesis, bio-transduction, bio-mechanical and bio-electri-
19 cal engineering, and bio-informatics.
20 (2) An eligible taxpayer shall (A) have no more than one hundred full-
21 time employees, of which at least seventy-five percent are employed in
22 the city, (B) have a ratio of research and development funds to net
23 sales, as referred to in section thirty-one hundred two-e of the public
24 authorities law, which equals or exceeds six percent during the calendar
25 year ending with or within the taxable year for which the credit is
26 claimed, and (C) have gross revenues, along with the gross revenues of
27 its "affiliates" and "related members" not exceeding twenty million
28 dollars for the calendar year immediately preceding the calendar year
29 ending with or within the taxable year for which the credit is claimed.
30 For the purposes of this subdivision, "affiliates" shall mean those
31 corporations that are members of the same affiliated group, as defined
32 in section fifteen hundred four of the internal revenue code, as the
33 taxpayer. For the purposes of this subdivision, the term "related
34 members" shall mean a person, corporation, or other entity, including an
35 entity that is treated as a partnership or other pass-through vehicle
36 for purposes of federal taxation, whether such person, corporation or
37 entity is a taxpayer or not, where one such person, corporation or enti-
38 ty, or set of related persons, corporations or entities, directly or
39 indirectly owns or controls a controlling interest in another entity.
40 Such entity or entities may include all taxpayers under chapters five,
41 eleven and seventeen of this title, and subchapters two and three of
42 this chapter. A controlling interest shall mean, in the case of a corpo-
43 ration, either thirty percent or more of the total combined voting power
44 of all classes of stock of such corporation, or thirty percent or more
45 of the capital, profits or beneficial interest in such voting stock of
46 such corporation; and in the case of a partnership, association, trust
47 or other entity, thirty percent or more of the capital, profits or bene-
48 ficial interest in such partnership, association, trust or other entity.
49 (3) An eligible taxpayer shall be allowed a credit for eighteen per
50 centum of the cost or other basis for federal income tax purposes of
51 research and development property that is acquired by the taxpayer by
52 purchase as defined in subdivision (d) of section one hundred seventy-
53 nine of the internal revenue code and placed in service during the
54 calendar year that ends with or within the taxable year for which the
55 credit is claimed. Provided, however, for the purposes of this paragraph
56 only, an eligible taxpayer shall be allowed a credit for such percentage
S. 8578 571
1 of the (A) cost or other basis for federal income tax purposes for prop-
2 erty used in the testing or inspection of materials and products, (B)
3 the costs or expenses associated with quality control of the research
4 and development, (C) fees for use of sophisticated technology facilities
5 and processes, and (D) fees for the production or eventual commercial
6 distribution of materials and products resulting from the activities of
7 an eligible taxpayer as long as such activities fall under activities
8 relating to biotechnologies. The costs, expenses and other amounts for
9 which a credit is allowed and claimed under this paragraph shall not be
10 used in the calculation of any other credit allowed under this subchap-
11 ter. For the purposes of this subdivision, "research and development
12 property" shall mean property that is used for purposes of research and
13 development in the experimental or laboratory sense. Such purposes shall
14 not be deemed to include the ordinary testing or inspection of materials
15 or products for quality control, efficiency surveys, management studies,
16 consumer surveys, advertising, promotions, or research in connection
17 with literary, historical or similar projects.
18 (4) An eligible taxpayer shall be allowed a credit for nine per centum
19 of qualified research expenses paid or incurred by the taxpayer in the
20 calendar year that ends with or within the taxable year for which the
21 credit is claimed. For the purposes of this subdivision, "qualified
22 research expenses" shall mean expenses associated with in-house research
23 and processes, and costs associated with the dissemination of the
24 results of the products that directly result from such research and
25 development activities; provided, however, that such costs shall not
26 include advertising or promotion through media. In addition, costs asso-
27 ciated with the preparation of patent applications, patent application
28 filing fees, patent research fees, patent examinations fees, patent post
29 allowance fees, patent maintenance fees, and grant application expenses
30 and fees shall qualify as qualified research expenses. In no case shall
31 the credit allowed under this subparagraph apply to expenses for liti-
32 gation or the challenge of another entity's intellectual property
33 rights, or for contract expenses involving outside paid consultants.
34 (5) An eligible taxpayer shall be allowed a credit for qualified high-
35 technology training expenditures as described in this subparagraph paid
36 or incurred by the taxpayer during the calendar year that ends with or
37 within the taxable year for which the credit is claimed.
38 (A) The amount of credit shall be one hundred percent of the training
39 expenses described in clause (C) of this subparagraph, subject to a
40 limitation of no more than four thousand dollars per employee per calen-
41 dar year for such training expenses.
42 (B) Qualified high-technology training shall include a course or
43 courses taken and satisfactorily completed by an employee of the taxpay-
44 er at an accredited, degree granting post-secondary college or universi-
45 ty in a city that (i) directly relates to biotechnology activities, and
46 (ii) is intended to upgrade, retrain or improve the productivity or
47 theoretical awareness of the employee. Such course or courses may
48 include, but are not limited to, instruction or research relating to
49 techniques, meta, macro, or micro-theoretical or practical knowledge
50 bases or frontiers, or ethical concerns related to such activities. Such
51 course or courses shall not include classes in the disciplines of
52 management, accounting or the law or any class designed to fulfill the
53 discipline specific requirements of a degree program at the associate,
54 baccalaureate, graduate or professional level of these disciplines.
55 Satisfactory completion of a course or courses shall mean the earning
56 and granting of credit or equivalent unit, with the attainment of a
S. 8578 572
1 grade of "B" or higher in a graduate level course or courses, a grade of
2 "C" or higher in an undergraduate level course or courses, or a similar
3 measure of competency for a course that is not measured according to a
4 standard grade formula.
5 (C) Qualified high-technology training expenditures shall include
6 expenses for tuition and mandatory fees, software required by the insti-
7 tution, fees for textbooks or other literature required by the institu-
8 tion offering the course or courses, minus applicable scholarships and
9 tuition or fee waivers not granted by the taxpayer or any affiliates of
10 the taxpayer, that are paid or reimbursed by the taxpayer. Qualified
11 high-technology expenditures do not include room and board, computer
12 hardware or software not specifically assigned for such course or cours-
13 es, late-charges, fines or membership dues and similar expenses. Such
14 qualified expenditures shall not be eligible for the credit provided by
15 this section unless the employee for whom the expenditures are disbursed
16 is continuously employed by the taxpayer in a full-time, full-year posi-
17 tion primarily located at a qualified site during the period of such
18 coursework and lasting through at least one hundred eighty days after
19 the satisfactory completion of the qualifying course-work. Qualified
20 high-technology training expenditures shall not include expenses for
21 in-house or shared training outside of a city higher education institu-
22 tion or the use of consultants outside of credit granting courses,
23 whether such consultants function inside of such higher education insti-
24 tution or not.
25 (D) If a taxpayer relocates from an academic business incubator facil-
26 ity partnered with an accredited post-secondary education institution
27 located within city, which provides space and business support services
28 to taxpayers, to another site, the credit provided in this subdivision
29 shall be allowed for all expenditures referenced in clause (C) of this
30 subparagraph paid or incurred in the two preceding calendar years that
31 the taxpayer was located in such an incubator facility for employees of
32 the taxpayer who also relocate from said incubator facility to such city
33 site and are employed and primarily located by the taxpayer in city.
34 Such expenditures in the two preceding years shall be added to the
35 amounts otherwise qualifying for the credit provided by this subdivision
36 that were paid or incurred in the calendar year that the taxpayer relo-
37 cates from such a facility. Such expenditures shall include expenses
38 paid for an eligible employee who is a full-time, full-year employee of
39 said taxpayer during the calendar year that the taxpayer relocated from
40 an incubator facility notwithstanding (i) that such employee was
41 employed full or part-time as an officer, staff-person or paid intern of
42 the taxpayer when such taxpayer was located at such incubator facility
43 or (ii) that such employee was not continuously employed when such
44 taxpayer was located at the incubator facility during the one hundred
45 eighty day period referred to in clause (C) of this subparagraph,
46 provided such employee received wages or equivalent income for at least
47 seven hundred fifty hours during any twenty-four month period when the
48 taxpayer was located at the incubator facility. Such expenditures shall
49 include payments made to such employee after the taxpayer has relocated
50 from the incubator facility for qualified expenditures if such payments
51 are made to reimburse an employee for expenditures paid by the employee
52 during such two preceding years. The credit provided under this para-
53 graph shall be allowed in any taxable year that the taxpayer qualifies
54 as an eligible taxpayer.
S. 8578 573
1 (E) For purposes of this subdivision the term "academic year" shall
2 mean the annual period of sessions of a post-secondary college or
3 university.
4 (F) For the purposes of this subdivision the term "academic incubator
5 facility" shall mean a facility providing low-cost space, technical
6 assistance, support services and educational opportunities, including
7 but not limited to central services provided by the manager of the
8 facility to the tenants of the facility, to an entity located in city.
9 Such entity's primary activity must be in biotechnologies, and such
10 entity must be in the formative stage of development. The academic incu-
11 bator facility and the entity must act in partnership with an accredited
12 post-secondary college or university located in city. An academic incu-
13 bator facility's mission shall be to promote job creation, entrepreneur-
14 ship, technology transfer, and provide support services to incubator
15 tenants, including, but not limited to, business planning, management
16 assistance, financial-packaging, linkages to financing services, and
17 coordinating with other sources of assistance.
18 (6) An eligible taxpayer may claim credits under this subdivision for
19 three consecutive years. In no case shall the credit allowed by this
20 subdivision to a taxpayer exceed two hundred fifty thousand dollars per
21 calendar year for eligible expenditures made during such calendar year.
22 (7) The credit allowed under this subdivision for any taxable year
23 shall not reduce the tax due for such year to less than the amount
24 prescribed in clause four of subparagraph (a) of paragraph E of subdivi-
25 sion one of this section. Provided, 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 not deductible in such taxable year
28 shall be treated as an overpayment of tax to be credited or refunded in
29 accordance with the provisions of section 11-677 of this chapter;
30 provided, however, that notwithstanding the provisions of section 11-679
31 of this chapter, no interest shall be paid thereon.
32 (8) The credit allowed under this subdivision shall only be allowed
33 for taxable years beginning on or after January first, two thousand ten
34 and before January first, two thousand nineteen.
35 (b) (1) The percentage of the credit allowed to a taxpayer under this
36 subdivision in any calendar year shall be:
37 (A) If the average number of individuals employed full time by a
38 taxpayer in the city during the calendar year that ends with or within
39 the taxable year for which the credit is claimed is at least one hundred
40 five percent of the taxpayer's base year employment, one hundred
41 percent, except that in no case shall the credit allowed under this
42 clause exceed two hundred fifty thousand dollars per calendar year.
43 Provided, however, the increase in base year employment shall not apply
44 to a taxpayer allowed a credit under this subdivision that was, (i)
45 located outside of the city, (ii) not doing business, or (iii) did not
46 have any employees, in the year preceding the first year that the credit
47 is claimed. Any such taxpayer shall be eligible for one hundred percent
48 of the credit for the first calendar year that ends with or within the
49 taxable year for which the credit is claimed, provided that such taxpay-
50 er locates in the city, begins doing business in the city or hires
51 employees in the city during such calendar year and is otherwise eligi-
52 ble for the credit pursuant to the provisions of this subdivision.
53 (B) If the average number of individuals employed full time by a
54 taxpayer in the city during the calendar year that ends with or within
55 the taxable year for which the credit is claimed is less than one
56 hundred five percent of the taxpayer's base year employment, fifty
S. 8578 574
1 percent, except that in no case shall the credit allowed under this
2 clause exceed one hundred twenty-five thousand dollars per calendar
3 year. In the case of an entity located in city receiving space and busi-
4 ness support services by an academic incubator facility, if the average
5 number of individuals employed full time by such entity in the city
6 during the calendar year in which the credit allowed under this subdivi-
7 sion is claimed is less than one hundred five percent of the taxpayer's
8 base year employment, the credit shall be zero.
9 (2) For the purposes of this subdivision, "base year employment" means
10 the average number of individuals employed full-time by the taxpayer in
11 the city in the year preceding the first calendar year that ends with or
12 within the taxable year for which the credit is claimed.
13 (3) For the purposes of this subdivision, average number of individ-
14 uals employed full-time shall be computed by adding the number of such
15 individuals employed by the taxpayer at the end of each quarter during
16 each calendar year or other applicable period and dividing the sum so
17 obtained by the number of such quarters occurring within such calendar
18 year or other applicable period.
19 (4) Notwithstanding anything contained in this section to the contra-
20 ry, the credit provided by this subdivision shall be allowed against the
21 taxes authorized by this chapter for the taxable year after reduction by
22 all other credits permitted by this chapter.
23 22. Beer production credit. (a) A taxpayer subject to tax under this
24 subchapter, that is registered as a distributor under article eighteen
25 of the tax law, and that produces sixty million or fewer gallons of beer
26 in this state in the taxable year, shall be allowed a credit against the
27 tax imposed by this subchapter in the amount specified in paragraph (b)
28 of this subdivision. Provided, however, that no credit shall be allowed
29 for any beer produced in excess of fifteen million five hundred thousand
30 gallons in the taxable year. Notwithstanding anything in this title to
31 the contrary, if a partnership is allowed a credit under subdivision (p)
32 of section 11-503 of this title, a taxpayer that is a partner in such
33 partnership shall not be allowed a credit under this subdivision for any
34 taxable year that includes the last day of the taxable year for which
35 the partnership is allowed such credit.
36 (b) The amount of the credit per taxpayer per taxable year for each
37 gallon of beer produced in the city of New York on or after January
38 first, two thousand seventeen shall be determined as follows:
39 (1) for the first five hundred thousand gallons of beer produced in
40 the city of New York in the taxable year, the credit shall equal twelve
41 cents per gallon; and
42 (2) for each gallon of beer produced in the city of New York in the
43 taxable year in excess of five hundred thousand gallons, the credit
44 shall equal three and eighty-six one-hundredths cents per gallon. In no
45 event shall the credit allowed under this subdivision for any taxable
46 year reduce the tax due for such year to less than the amount prescribed
47 in clause four of subparagraph (a) of paragraph E of subdivision one of
48 this section. However, if the amount of credit allowed under this subdi-
49 vision for any taxable year reduces the tax to such amount, any amount
50 of credit thus not deductible in such taxable year shall be treated as
51 an overpayment of tax to be credited or refunded in accordance with the
52 provisions of section 11-677 of this chapter; provided, however, that
53 notwithstanding the provisions of section 11-679 of this chapter, no
54 interest shall be paid thereon.
55 23. Credit for the provision of child care. In addition to any other
56 credit allowed under this section, a taxpayer whose application for a
S. 8578 575
1 credit authorized by section 11-144 of this title has been approved by
2 the department of finance shall be allowed a credit against the tax
3 imposed by this chapter. The amount of the credit shall be determined as
4 provided in such section. To the extent the amount of the credit allowed
5 by this subdivision exceeds the amount of tax due pursuant to this
6 subchapter, as calculated without such credit, such excess amount shall
7 be treated as an overpayment of tax to be credited or refunded in
8 accordance with the provisions of section 11-677 of this chapter,
9 provided, however, that notwithstanding the requirements of section
10 11-679 of this chapter to the contrary, no interest shall be paid there-
11 on.
12 § 11-605 Reports. 1. Every corporation having an officer, agent or
13 representative within the city, shall annually on or before March
14 fifteenth, transmit to the commissioner of finance a report in a form
15 prescribed by the commissioner, except that a corporation which reports
16 on the basis of a fiscal year shall transmit its report within two and
17 one-half months after the close of its fiscal year, setting forth such
18 information as the commissioner of finance may prescribe and every
19 taxpayer which ceases to do business in the city or to be subject to the
20 tax imposed by this subchapter shall transmit to the commissioner of
21 finance a report on the date of such cessation or at such other time as
22 the commissioner may require covering each year or period for which no
23 report was theretofore filed. Every taxpayer shall also transmit such
24 other reports and such facts and information as the commissioner of
25 finance may require in the administration of this subchapter. The
26 commissioner of finance may grant a reasonable extension of time for
27 filing reports whenever good cause exists.
28 With respect to taxable years ending prior to December thirty-first,
29 nineteen hundred sixty-six, the returns required to be made and filed
30 pursuant to this section shall be made and filed on or before the
31 fifteenth day of the third month following the close of such taxable
32 year or September eleventh, nineteen hundred sixty-six, whichever is
33 later.
34 An automatic extension of six months for the filing of its annual
35 report shall be allowed any taxpayer if, within the time prescribed by
36 either of the preceding paragraphs, whichever is applicable, such
37 taxpayer files with the commissioner of finance an application for
38 extension in such form as the commissioner may prescribe by regulation
39 and pays on or before the date of such filing the amount properly esti-
40 mated as its tax.
41 2. Every report shall have annexed thereto a certification by the
42 president, vice-president, treasurer, assistant treasurer, chief
43 accounting officer or another officer of the taxpayer duly authorized so
44 to act to the effect that the statements contained therein are true. In
45 the case of an association, within the meaning of paragraph three of
46 section (a) of section seventy-seven hundred one of the internal revenue
47 code, a publicly-traded partnership treated as a corporation for
48 purposes of the internal revenue code pursuant to section seventy-seven
49 hundred four thereof and any business conducted by a trustee or trustees
50 wherein interest or ownership is evidenced by certificates or other
51 written instruments, such certification shall be made by any person duly
52 authorized so to act on behalf of such association, publicly-traded
53 partnership or business. The fact that an individual's name is signed on
54 a certification of the report shall be prima facie evidence that such
55 individual is authorized to sign and certify the report on behalf of the
56 corporation. Blank forms of reports shall be furnished by the commis-
S. 8578 576
1 sioner of finance, on application, but failure to secure such a blank
2 shall not release any corporation from the obligation of making any
3 report required by this subchapter.
4 2-a. The commissioner of finance may prescribe regulations and
5 instructions requiring returns of information to be made and filed in
6 conjunction with the reports required to be filed pursuant to this
7 section, relating to payments made to shareholders owning, directly or
8 indirectly, individually or in the aggregate, more than fifty percent of
9 the issued capital stock of the taxpayer, where such payments are treat-
10 ed as payments of interest in the computation of entire net income
11 reported on such reports.
12 3. If the amount of taxable income, alternative minimum taxable income
13 or other basis of tax for any year of any taxpayer, or of any sharehold-
14 er of any taxpayer which has elected to be taxed under subchapter s of
15 chapter one of the internal revenue code or of any shareholder of any
16 taxpayer with respect to which an election has been made to be treated
17 as a qualified subchapter s subsidiary under paragraph three of
18 subsection (b) of section thirteen hundred sixty-one of the internal
19 revenue code, as returned to the United States treasury department or
20 the New York state commissioner of taxation and finance is changed or
21 corrected by the commissioner of internal revenue or other officer of
22 the United States or the New York state commissioner of taxation and
23 finance or other competent authority, or where a renegotiation of a
24 contract or subcontract with the United States or the state of New York
25 results in a change in taxable income, alternative minimum taxable
26 income or other basis of tax, or where a recovery of a war loss results
27 in a computation or recomputation of any tax imposed by the United
28 States or the state of New York, or if a taxpayer or such shareholder of
29 a taxpayer, pursuant to subsection (d) of section sixty-two hundred
30 thirteen of the internal revenue code, executes a notice of waiver of
31 the restrictions provided in subsection (a) of said section, or if a
32 taxpayer, or such shareholder of a taxpayer, pursuant to subsection (f)
33 of section one thousand eighty-one of the tax law, executes a notice of
34 waiver of the restrictions provided in subsection (c) of said section,
35 such taxpayer shall report such changed or corrected taxable income,
36 alternative minimum taxable income or other basis of tax, or the results
37 of such renegotiation, or such computation, or recomputation, or such
38 execution of such notice of waiver and the changes or corrections of the
39 taxpayer's federal or New York state taxable income, alternative minimum
40 taxable income or other basis of tax on which it is based, within ninety
41 days, or one hundred twenty days, in the case of a taxpayer making a
42 combined report under this subchapter for such year, after such
43 execution or the final determination of such change or correction or
44 renegotiation, or such computation, or recomputation, or as required by
45 the commissioner of finance, and shall concede the accuracy of such
46 determination or state wherein it is erroneous. The allowance of a
47 tentative carryback adjustment based upon a net operating loss carryback
48 or net capital loss carryback pursuant to section sixty-four hundred
49 eleven of the internal revenue code shall be treated as a final determi-
50 nation for purposes of this subdivision. Any taxpayer filing an amended
51 return with such department shall also file within ninety days thereaft-
52 er an amended report with the commissioner of finance.
53 4. (a) Any taxpayer which owns or controls either directly or indi-
54 rectly substantially all the capital stock of one or more other corpo-
55 rations, or substantially all the capital stock of which is owned or
56 controlled either directly or indirectly by one or more other corpo-
S. 8578 577
1 rations or by interests which own or control either directly or indi-
2 rectly substantially all the capital stock of one or more other corpo-
3 rations, hereinafter referred to in this paragraph as "related
4 corporations", shall make a combined report covering any related corpo-
5 rations if there are substantial intercorporate transactions among the
6 related corporations, regardless of the transfer price for such inter-
7 corporate transactions. It is not necessary that there be substantial
8 intercorporate transactions between any one corporation and every other
9 related corporation. It is necessary, however, that there be substantial
10 intercorporate transactions between the taxpayer and a related corpo-
11 ration or, collectively, a group of such related corporations. The
12 report shall set forth such information as the commissioner of finance
13 may require.
14 In determining whether there are substantial intercorporate trans-
15 actions, the commissioner shall consider and evaluate all activities and
16 transactions of the taxpayer and its related corporations. Activities
17 and transactions that will be considered include, but are not limited
18 to: manufacturing, acquiring goods or property, or performing services,
19 for related corporations; selling goods acquired from related corpo-
20 rations; financing sales of related corporations; performing related
21 customer services using common facilities and employees for related
22 corporations; incurring expenses that benefit, directly or indirectly,
23 one or more related corporations; and transferring assets, including
24 such assets as accounts receivable, patents or trademarks from one or
25 more related corporations.
26 (1) No taxpayer may be permitted to make a report on a combined basis
27 covering any such other corporations where such taxpayer or any such
28 other corporation allocates in accordance with clause (A) of subpara-
29 graph six of paragraph (a) of subdivision three of section 11-604 of
30 this subchapter and such taxpayer or any such other corporation does not
31 so allocate.
32 (2) No taxpayer may be permitted to make a report on a combined basis
33 covering any such other corporations where such taxpayer or any such
34 other corporation allocates in accordance with subparagraph seven of
35 paragraph (a) of subdivision three of section 11-604 of this subchapter
36 and such taxpayer or any such other corporation does not so allocate.
37 (3) Except as provided in the first undesignated paragraph of this
38 subdivision, no combined report covering any corporation not a taxpayer
39 shall be required unless the commissioner of finance deems such a report
40 necessary, because of inter-company transactions or some agreement,
41 understanding, arrangement or transaction referred to in subdivision
42 five of this section, in order properly to reflect the tax liability
43 under this subchapter.
44 (4) A corporation organized under the laws of a country other than the
45 United States shall not be required or permitted to make a report on a
46 combined basis.
47 (5)(i) For purposes of this subparagraph, the term "closest control-
48 ling stockholder" means the corporation that indirectly owns or controls
49 over fifty percent of the voting stock of a captive REIT or captive RIC,
50 is subject to tax under this subchapter or otherwise required to be
51 included in a combined report under this subchapter, and is the fewest
52 tiers of corporations away in the ownership structure from the captive
53 REIT or captive RIC. The commissioner is authorized to prescribe by
54 regulation or published guidance the criteria for determining the clos-
55 est controlling stockholder.
S. 8578 578
1 (ii) A captive REIT or a captive RIC must be included in a combined
2 report with the corporation that directly owns or controls over fifty
3 percent of the voting stock of the captive REIT or captive RIC if that
4 corporation is subject to tax or required to be included in a combined
5 report under this subchapter.
6 (iii) If over fifty percent of the voting stock of a captive REIT or
7 captive RIC is not directly owned or controlled by a corporation that is
8 subject to tax or required to be included in a combined report under
9 this subchapter, then the captive REIT or captive RIC must be included
10 in a combined report with the corporation that is the closest control-
11 ling stockholder of the captive REIT or captive RIC. If the closest
12 controlling stockholder of the captive REIT or captive RIC is subject to
13 tax or otherwise required to be included in a combined report under this
14 subchapter, then the captive REIT or captive RIC must be included in a
15 combined report under this subchapter.
16 (iv) If the corporation that directly owns or controls the voting
17 stock of the captive REIT or captive RIC is described in subparagraph
18 one, two or four of this paragraph as a corporation not permitted to
19 make a combined report, then the provisions in clause (iii) of this
20 subparagraph must be applied to determine the corporation in whose
21 combined report the captive REIT or captive RIC should be included. If,
22 under clause (iii) of this subparagraph, the corporation that is the
23 closest controlling stockholder of the captive REIT or captive RIC is
24 described in subparagraph one, two or four of this paragraph as a corpo-
25 ration not permitted to make a combined report, then that corporation is
26 deemed to not be in the ownership structure of the captive REIT or
27 captive RIC, and the closest controlling stockholder will be determined
28 without regard to that corporation.
29 (v) If a captive REIT owns the stock of a qualified REIT subsidiary,
30 as defined in paragraph two of subsection (i) of section eight hundred
31 fifty-six of the internal revenue code, then the qualified REIT subsid-
32 iary must be included in a combined report with the captive REIT.
33 (vi) If a captive REIT or a captive RIC is required under this subpar-
34 agraph to be included in a combined report with another corporation, and
35 that other corporation is also required to be included in a combined
36 report with another related corporation or corporations under this para-
37 graph, then the captive REIT or the captive RIC must be included in that
38 combined report with those corporations.
39 (vii) If a captive REIT or a captive RIC is not required to be
40 included in a combined report with another corporation under clause (ii)
41 or (iii) of this subparagraph, or in a combined return under the
42 provisions of subparagraph (v) of paragraph two of subdivision (f) of
43 section 11-646 of this chapter, then the captive REIT or captive RIC is
44 subject to the opening provisions of this paragraph and the provisions
45 of subparagraph three of this paragraph. The captive REIT or captive RIC
46 must be included in a combined report under this subchapter with another
47 corporation if either the substantial intercorporate transactions
48 requirement in the opening provisions of this paragraph or the inter-
49 company transactions or agreement, understanding, arrangement or trans-
50 action requirement of subparagraph three of this paragraph is satisfied
51 and more than fifty percent of the voting stock of the captive REIT or
52 the captive RIC and substantially all of the capital stock of that other
53 corporation are owned and controlled, directly or indirectly, by the
54 same corporation.
55 (b)(1)(i) In the case of a combined report the tax shall be measured
56 by the combined entire net income or combined capital of all the corpo-
S. 8578 579
1 rations included in the report, including any captive REIT or captive
2 RIC; provided, however, in no event shall the tax measured by combined
3 capital exceed the limitation provided for in paragraph F of subdivision
4 one of section 11-604 of this subchapter.
5 (ii) In the case of a captive REIT or captive RIC required under this
6 subdivision to be included in a combined report, entire net income must
7 be computed as required under subdivision seven, in the case of a
8 captive REIT, or subdivision eight, in the case of a captive RIC, of
9 section 11-603 of this chapter. However, the deduction under the inter-
10 nal revenue code for dividends paid by the captive REIT or captive RIC
11 to any member of the affiliated group that includes the corporation that
12 directly or indirectly owns over fifty percent of the voting stock of
13 the captive REIT or captive RIC shall not be allowed for taxable years
14 beginning on or after January first, two thousand nine. The term "affil-
15 iated group" means "affiliated group" as defined in section fifteen
16 hundred four of the internal revenue code, but without regard to the
17 exceptions provided for in subsection (b) of that section.
18 (2) In computing combined entire net income intercorporate dividends
19 shall be eliminated, in computing combined business and investment capi-
20 tal intercorporate stock holdings and intercorporate bills, notes and
21 accounts receivable and payable and other intercorporate indebtedness
22 shall be eliminated and in computing combined subsidiary capital inter-
23 corporate stockholdings shall be eliminated.
24 5. In case it shall appear to the commissioner of finance that any
25 agreement, understanding or arrangement exists between the taxpayer and
26 any other corporation or any person or firm, whereby the activity, busi-
27 ness, income or capital of the taxpayer within the city is improperly or
28 inaccurately reflected, the commissioner of finance is authorized and
29 empowered, in its discretion and in such manner as it may determine, to
30 adjust items of income, deductions and capital, and to eliminate assets
31 in computing any allocation percentage provided only that any income
32 directly traceable thereto be also excluded from entire net income, so
33 as equitably to determine the tax. Where (a) any taxpayer conducts its
34 activity or business under any agreement, arrangement or understanding
35 in such manner as either directly or indirectly to benefit its members
36 or stockholders, or any of them, or any person or persons directly or
37 indirectly interested in such activity or business, by entering into any
38 transaction at more or less than a fair price which, but for such agree-
39 ment, arrangement or understanding, might have been paid or received
40 therefor, or (b) any taxpayer, a substantial portion of whose capital
41 stock is owned either directly or indirectly by another corporation,
42 enters into any transaction with such other corporation on such terms as
43 to create an improper loss or net income, the commissioner of finance
44 may include in the entire net income of the taxpayer the fair profits,
45 which, but for such agreement, arrangement or understanding, the taxpay-
46 er might have derived from such transaction.
47 6. An action may be brought at any time by the corporation counsel at
48 the instance of the commissioner of finance to compel the filing of
49 reports due under this subchapter.
50 7. Reports shall be preserved for five years, and thereafter until the
51 commissioner of finance orders them to be destroyed.
52 8. Where the state tax commission changes or corrects a taxpayer's
53 sales and compensating use tax liability with respect to the purchase or
54 use of items for which a sales or compensating use tax credit against
55 the tax imposed by this chapter was claimed, the taxpayer shall report
56 such change or correction to the commissioner of finance within ninety
S. 8578 580
1 days of the final determination of such change or correction, or as
2 required by the commissioner of finance, and shall concede the accuracy
3 of such determination or state wherein it is erroneous. Any taxpayer
4 filing an amended return or report relating to the purchase or use of
5 such items shall also file within ninety days thereafter a copy of such
6 amended return or report with the commissioner of finance.
7 § 11-606 Payment and lien of tax. 1. To the extent the tax imposed by
8 section 11-603 of this subchapter shall not have been previously paid
9 pursuant to section 11-608 of this subchapter,
10 (a) such tax, or the balance thereof, shall be payable to the commis-
11 sioner of finance in full at the time the report is required to be
12 filed, and
13 (b) such tax, or the balance thereof, imposed on any taxpayer which
14 ceases to do business in the city or to be subject to the tax imposed by
15 this subchapter shall be payable to the commissioner of finance at the
16 time the report is required to be filed; all other taxes of any such
17 taxpayer, which pursuant to the provisions of this section would other-
18 wise be payable subsequent to the time such report is required to be
19 filed, shall nevertheless be payable at such time.
20 If the taxpayer, within the time prescribed by section 11-605 of this
21 subchapter, shall have applied for an automatic extension of time to
22 file its annual report and shall have paid to the commissioner of
23 finance on or before the date such application is filed an amount prop-
24 erly estimated as provided by said section, the only amount payable in
25 addition to the tax shall be interest at the underpayment rate set by
26 the commissioner of finance pursuant to section 11-687 of this chapter,
27 or, if no rate is set, at the rate of seven and one-half percent per
28 annum upon the amount by which the tax, or the portion thereof payable
29 on or before the date the report was required to be filed, exceeds the
30 amount so paid. For purposes of this paragraph:
31 (1) an amount so paid shall be deemed properly estimated if it is
32 either: (A) not less than ninety percent of the tax as finally deter-
33 mined, computed without regard to any credit allowable under subdivision
34 eleven of section 11-604 of this subchapter, or (B) not less than the
35 tax shown, computed without regard to any credit allowable under subdi-
36 vision eleven of section 11-604 of this subchapter, on the taxpayer's
37 report for the preceding taxable year, if such preceding year was a
38 taxable year of twelve months; and
39 (2) the time when a report is required to be filed shall be determined
40 without regard to any extension of time for filing such report.
41 2. The commissioner of finance may grant a reasonable extension of
42 time for payment of any tax imposed by this subchapter under such condi-
43 tions as it deems just and proper.
44 3. Subdivision one of this section shall apply to a taxpayer which has
45 a right to a credit pursuant to subdivision eleven of section 11-604 of
46 this subchapter, except that the tax, or balance thereof, payable to the
47 commissioner of finance in full pursuant to subdivision one of this
48 section, at the time the report is required to be filed, shall be calcu-
49 lated and paid at such time as if the credit provided for in subdivision
50 eleven of section 11-604 of this subchapter were not allowed.
51 § 11-607 Declaration of estimated tax. 1. Every taxpayer subject to
52 the tax imposed by section 11-603 of this subchapter shall make a decla-
53 ration of its estimated tax for the current privilege period, containing
54 such information as the commissioner of finance may prescribe by regu-
55 lations or instructions, if such estimated tax can reasonably be
56 expected to exceed one thousand dollars.
S. 8578 581
1 2. The term "estimated tax" means the amount which a taxpayer esti-
2 mates to be the tax imposed by section 11-603 of this subchapter for the
3 current privilege period, less the amount which it estimates to be the
4 sum of any credits allowable against the tax other than the credit
5 allowable under subdivision eleven of section 11-604 of this subchapter.
6 3. In the case of a taxpayer which reports on the basis of a calendar
7 year, a declaration of estimated tax shall be filed on or before June
8 fifteenth of the current privilege period, except that if the require-
9 ments of subdivision one are first met:
10 (a) after May thirty-first and before September first of such
11 current privilege period, the declaration shall be filed on or before
12 September fifteenth, or
13 (b) after August thirty-first and before December first of such
14 current privilege period, the declaration shall be filed on or before
15 December fifteenth.
16 4. A taxpayer may amend a declaration under regulations of the
17 commissioner of finance.
18 5. If, on or before February fifteenth of the succeeding year in the
19 case of a taxpayer which reports on the basis of a calendar year, a
20 taxpayer files its report for the year for which the declaration is
21 required, and pays therewith the balance, if any, of the full amount
22 of the tax shown to be due on the report,
23 (a) such report shall be considered as its declaration if no decla-
24 ration is required to be filed during the calendar or fiscal year for
25 which the tax was imposed, but is otherwise required to be filed on or
26 before December fifteenth pursuant to subdivision three of this
27 section, and
28 (b) such report shall be considered as the amendment permitted by
29 subdivision four of this section to be filed on or before December
30 fifteenth if the tax shown on the report is greater than the estimated
31 tax shown on a declaration previously made.
32 6. This section shall apply to privilege periods of twelve months
33 other than a calendar year by the substitution of the months of such
34 fiscal year for the corresponding months specified in this section.
35 7. If the privilege period for which a tax is imposed by section
36 11-603 of this subchapter is less than twelve months, every taxpayer
37 required to make a declaration of estimated tax for such privilege
38 period shall make such a declaration in accordance with regulations of
39 the commissioner of finance.
40 8. The commissioner of finance may grant a reasonable extension of
41 time, not to exceed three months, for the filing of any declaration
42 required pursuant to this section, on such terms and conditions as it
43 may require.
44 § 11-608 Payments on account of estimated tax. 1. Every taxpayer
45 subject to the tax imposed by section 11-603 of this subchapter shall
46 pay with the report required to be filed for the preceding privilege
47 period, if any, or with an application for extension of the time and
48 filing such report, an amount equal to twenty-five per centum of the
49 preceding year's tax, computed without regard to the credit provided for
50 in subdivision twelve of section 11-604 of this subchapter, if such
51 preceding year's tax exceeded one thousand dollars.
52 2. The estimated tax with respect to which a declaration for such
53 privilege period is required shall be paid, in the case of a taxpayer
54 which reports on the basis of a calendar year, as follows:
55 (a) If the declaration is filed on or before June fifteenth, the esti-
56 mated tax shown thereon, after applying thereto the amount, if any, paid
S. 8578 582
1 during the same privilege period pursuant to subdivision one of this
2 section, shall be paid in three equal installments. One of such
3 installments shall be paid at the time of the filing of the declaration,
4 one shall be paid on the following September fifteenth, and one on the
5 following December fifteenth.
6 (b) If the declaration is filed after June fifteenth and not after
7 September fifteenth of such privilege period, and is not required to be
8 filed on or before June fifteenth of such period, the estimated tax
9 shown on such declaration, after applying thereto the amount, if any,
10 paid during the same privilege period pursuant to subdivision one of
11 this section, shall be paid in two equal installments. One of such
12 installments shall be paid at the time of the filing of the declaration
13 and one shall be paid on the following December fifteenth.
14 (c) If the declaration is filed after September fifteenth of such
15 privilege period, and is not required to be filed on or before September
16 fifteenth of such privilege period, the estimated tax shown on such
17 declaration, after applying thereto the amount, if any, paid in respect
18 to such privilege period pursuant to subdivision one of this section,
19 shall be paid in full at the time of the filing of the declaration.
20 (d) If the declaration is filed after the time prescribed therefor, or
21 after the expiration of any extension of time therefor, paragraphs (b)
22 and (c) of this subdivision shall not apply, and there shall be paid at
23 the time of such filing all installments of estimated tax payable at or
24 before such time, and the remaining installments shall be paid at the
25 times at which, and in the amounts in which, they would have been paya-
26 ble if the declaration had been filed when due.
27 3. If any amendment of a declaration is filed, the remaining install-
28 ments, if any, shall be ratably increased or decreased, as the case may
29 be, to reflect any increase or decrease in the estimated tax by reason
30 of such amendment, and if any amendment is made after September
31 fifteenth of the privilege period, any increase in the estimated tax by
32 reason thereof shall be paid at the time of making such amendment.
33 4. Any amount paid shall be applied after payment as a first install-
34 ment against the estimated tax of the taxpayer for the current privilege
35 period shown on the declaration required to be filed pursuant to section
36 11-607 of this subchapter or, if no declaration of estimated tax is
37 required to be filed by the taxpayer to such section, any such amount
38 shall be considered a payment on account of the tax shown on the report
39 required to be filed by the taxpayer for such privilege period.
40 5. Notwithstanding the provisions of section 11-679 of this chapter or
41 of section three-a of the general municipal law, if an amount paid
42 pursuant to subdivision one of this section exceeds the tax shown on the
43 report required to be filed by the taxpayer for the privilege period
44 during which the amount was paid, interest shall be allowed and paid on
45 the amount by which the amount so paid pursuant to such subdivision
46 exceeds such tax, at the overpayment rate set by the commissioner of
47 finance pursuant to section 11-687 of this chapter, or, if no rate is
48 set, at the rate of four percent per annum from the date of payment of
49 the amount so paid pursuant to such subdivision to the fifteenth day of
50 the third month following the close of the privilege period, provided,
51 however, that no interest shall be allowed or paid under this subdivi-
52 sion if the amount thereof is less than one dollar or if such interest
53 becomes payable solely because of a carryback of a net operating loss in
54 a subsequent privilege period.
55 6. As used in this section, "the preceding year's tax" means the tax
56 imposed upon the taxpayer by section 11-603 of this subchapter for the
S. 8578 583
1 preceding calendar or fiscal year, or, for purposes of computing the
2 first installment of estimated tax when an application has been filed
3 for extension of the time for filing the report required to be filed for
4 such preceding calendar or fiscal year, the amount properly estimated
5 pursuant to section 11-607 of this subchapter as the tax imposed upon
6 the taxpayer for such calendar or fiscal year.
7 7. This section shall apply to a privilege period of less than twelve
8 months in accordance with regulations of the commissioner of finance.
9 8. The provisions of this section shall apply to privilege periods of
10 twelve months other than a calendar year by the substitution of the
11 months of such fiscal year for the corresponding months specified in
12 such provisions.
13 9. The commissioner of finance may grant a reasonable extension of
14 time, not to exceed six months, for payment of any installment of esti-
15 mated tax required pursuant to this section, on such terms and condi-
16 tions as the commissioner may require including the furnishing of a bond
17 or other security by the taxpayer in an amount not exceeding twice the
18 amount for which any extension of time for payment is granted, provided
19 however that interest at the underpayment rate set by the commissioner
20 of finance pursuant to section 11-687 of this chapter, or, if no rate is
21 set, at the rate of seven and one-half percent per annum for the period
22 of the extension shall be charged and collected on the amount for which
23 any extension of time for payment is granted under this subdivision.
24 10. A taxpayer may elect to pay any installment of estimated tax prior
25 to the date prescribed in this section for payment thereof.
26 11. The portion of an overpayment attributable to a credit allowable
27 pursuant to subdivision eleven of section 11-604 of this subchapter may
28 not be credited against any payment due under this section.
29 § 11-609 Collection of taxes. Every foreign corporation, other than
30 a moneyed corporation, subject to the provisions of this subchapter,
31 except a corporation having authority to do business by virtue of
32 section thirteen hundred five of the business corporation law, shall
33 file in the department of state a certificate of designation in its
34 corporate name, signed and acknowledged by its president or a vice-pre-
35 sident or its secretary or treasurer, under its corporate seal, desig-
36 nating the secretary of state as its agent upon whom process in any
37 action provided for by this subchapter may be served within this state,
38 and setting forth an address to which the secretary of state shall mail
39 a copy of any such process against the corporation which may be served
40 upon the secretary of state. In case any such corporation shall have
41 failed to file such certificate of designation, it shall be deemed to
42 have designated the secretary of state as its agent upon whom such proc-
43 ess against it may be served; and until a certificate of designation
44 shall have been filed, the corporation shall be deemed to have directed
45 the secretary of state to mail copies of process served upon him or her
46 to the corporation at its last known office address within or without
47 the state. When a certificate of designation has been filed by such
48 corporation the secretary of state shall mail copies of process there-
49 after served upon the secretary of state to the address set forth in
50 such certificate. Any such corporation, from time to time, may change
51 the address to which the secretary of state is directed to mail copies
52 of process, by filing a certificate to that effect executed, signed and
53 acknowledged in like manner as a certificate of designation as provided
54 in this section. Service of process upon any such corporation or upon
55 any corporation having authority to do business by virtue of section
56 thirteen hundred five of the business corporation law, in any action
S. 8578 584
1 commenced at any time pursuant to the provisions of this subchapter, may
2 be made by either: (a) personally delivering to and leaving with the
3 secretary of state, a deputy secretary of state or with any person
4 authorized by the secretary of state to receive such service duplicate
5 copies thereof at the office of the department of state in the city of
6 Albany, in which event the secretary of state shall forthwith send by
7 registered mail, return receipt requested, one of such copies to the
8 corporation at the address designated by it or at its last known office
9 address within or without the state, or (b) personally delivering to and
10 leaving with the secretary of state, a deputy secretary of state or with
11 any person authorized by the secretary of state to receive such service,
12 a copy thereof at the office of the department of state in the city of
13 Albany and by delivering a copy thereof to, and leaving such copy with,
14 the president, vice-president, secretary, assistant secretary, treasur-
15 er, assistant treasurer, or cashier of such corporation, or the officer
16 performing corresponding functions under another name, or a director or
17 managing agent of such corporation, personally without the state. Proof
18 of such personal service without the state shall be filed with the clerk
19 of the court in which the action is pending within thirty days after
20 such service, and such service shall be complete ten days after proof
21 thereof is filed.
22 § 11-610 Limitations of time. The provisions of the civil practice
23 law and rules relative to the limitation of time enforcing a civil reme-
24 dy shall not apply to any proceeding or action taken to levy, appraise,
25 assess, determine or enforce the collection of any tax or penalty
26 prescribed by this subchapter, provided, however, that as to real estate
27 in the hands of persons who are owners thereof who would be purchasers
28 in good faith but for such tax or penalty and as to the lien on real
29 estate of mortgages held by persons who would be holders thereof in good
30 faith but for such tax or penalty, all such taxes and penalties shall
31 cease to be a lien on such real estate as against such purchasers or
32 holders after the expiration of ten years from the date such taxes
33 became due and payable. The limitations provided for in this section
34 shall not apply to any transfer from a corporation to a person or corpo-
35 ration with intent to avoid payment of any taxes, or where with like
36 intent the transfer is made to a grantee corporation, or any subsequent
37 grantee corporation, controlled by such grantor or which has any commu-
38 nity of interest with it, either through stock ownership or otherwise.
39 SUBCHAPTER 3
40 FINANCIAL CORPORATION TAX
41 PART 1
42 TAX ON STATE BANKS, TRUST COMPANIES, FINANCIAL
43 CORPORATIONS AND SAVINGS AND LOAN ASSOCIATIONS
44 § 11-611 Definitions. When used in this part:
45 1. The term "financial corporation" means every corporation doing a
46 banking business as defined in this section, other than a national bank-
47 ing association, a trust company all of the capital stock of which is
48 owned by not less than twenty savings banks organized under a law of
49 this state, or a corporation taxable under subchapter two of this chap-
50 ter, and shall include the mortgage facilities corporation created by
51 chapter five hundred sixty-four of the laws of nineteen hundred fifty-
52 six and any corporation eighty percent or more of whose voting stock is
53 beneficially owned by a corporation or corporations subject to article
54 three or article three-a of the banking law or a national banking asso-
S. 8578 585
1 ciation or associations, provided the corporation whose voting stock is
2 so owned is principally engaged in business which might be lawfully
3 conducted by a corporation subject to article three of the banking law
4 or a national banking association.
5 2. The word "paid", for the purpose of the deductions and credits
6 under this part, means "paid or accrued" or "paid or incurred," and the
7 terms "paid or incurred" and "paid or accrued" shall be construed
8 according to the method of accounting upon the basis of which the net
9 income is computed, under this part. The term "received," for the
10 purpose of the computation of net income under this part means "received
11 or accrued" and the term "received or accrued" shall be construed
12 according to the method of accounting upon the basis of which the net
13 income is computed under this part.
14 3. The word "dividend" means any distribution made by a corporation to
15 its shareholders or members, out of its earnings or profits, whether in
16 cash, or in property other than stock of the corporation.
17 4. The words "doing a banking business" means doing such business as a
18 corporation may be created to do under articles three, five, five-a, and
19 six of the banking law, or doing any business which a corporation is
20 authorized by such articles to do.
21 5. The words "foreign banker doing a banking business" in the city,
22 include every foreign corporation doing a banking business in the city,
23 except a national banking association.
24 6. The words "savings and loan association" mean every corporation
25 doing such business as a corporation may be created to do under article
26 ten of the banking law, including every federal savings and loan associ-
27 ation organized under authority of the United States.
28 § 11-612 Tax based on net income; imposition; minimum tax; new incor-
29 porations; dissolution; consolidations; mergers, etc.
30 1. For the privilege of doing business in the city:
31 (a) Every bank and savings and loan association organized under the
32 authority of this state;
33 (b) Every trust company incorporated, organized or formed under, by or
34 pursuant to a law of the state, other than a trust company all of the
35 stock of which is owned by not less than twenty savings banks organized
36 under a law of the state, and every domestic corporation authorized to
37 do a trust company's business solely or in connection with any other
38 business, under a general or special law of the state;
39 (c) Every other domestic financial corporation;
40 (d) Every incorporated foreign banker doing a banking business and
41 every other foreign financial corporation; and
42 (e) Every federal savings and loan association located within the
43 city, shall annually pay a tax at the rate of four and one-half per
44 centum except that for the years nineteen hundred seventy-one and those
45 following, the rate shall be five and sixty-three one hundredths per
46 centum, to be computed as provided in this part, upon the basis of its
47 net income for each calendar year, beginning with the calendar year
48 nineteen hundred sixty-six, next preceding the date when such tax
49 becomes due, if the taxpayer is required to file a declaration of esti-
50 mated tax and to make payments on account of such estimated tax as
51 provided by section 11-636 of this subchapter, upon the basis of its net
52 income for the calendar year with respect to which such declaration is
53 required to be filed.
54 2. Every such corporation for the privilege of doing business in the
55 city and every federal savings and loan association located in the city
56 shall be subject to a minimum tax of not less than ten dollars and not
S. 8578 586
1 less than one mill except that for the years nineteen hundred seventy-
2 one and those following such minimum tax shall be not less than twelve
3 and one-half dollars and not less than one and one-quarter mills upon
4 each dollar of such a part of its issued capital stock on the last day
5 of the calendar year preceding that in which such tax becomes due, at
6 its face value, as the gross income of such corporation derived from
7 business carried on within the city during such calendar year, bears to
8 its gross income derived from all business, both within and without the
9 city, during said year, but if such a corporation has stock without par
10 value, such stock shall be taken at its actual or market value, and not
11 less than five dollars per share, as may be determined by the commis-
12 sioner of finance; except that a savings bank and savings and loan asso-
13 ciation shall be subject to a minimum tax of not less than an amount
14 equal to two per centum of the amount of interest or dividends credited
15 by it to depositors or shareholders during the calendar year preceding
16 that in which such tax becomes due except that for the years nineteen
17 hundred seventy-one and those following such minimum tax shall be not
18 less than twelve and one-half dollars and not less than an amount equal
19 to two and one-half per centum of the amount of interest or dividends
20 credited by it to depositors or shareholders during the calendar year
21 preceding that in which such tax becomes due, provided that, in deter-
22 mining such amount each interest or dividend credit to a depositor or
23 shareholder shall be deemed to be the interest or dividend actually
24 credited or the interest or dividend which would have been credited if
25 it had been computed and credited at the rate of two per centum per
26 annum whichever is less and except also that in the case of a trust
27 company or savings bank incorporated in the calendar year preceding that
28 in which its first return under this part shall be due and after the
29 thirtieth day of June in such year, the minimum tax, computed as in this
30 subdivision provided, shall be reduced one-twelfth for each month, or
31 major portion thereof, subsequent to said thirtieth day of June during
32 which such trust company or savings bank did not exercise the privilege
33 of doing business in the city.
34 3. For the privilege of doing business in the city, every such domes-
35 tic corporation, except trust companies and savings banks, shall be
36 subject to a tax for the calendar year in which its organization certif-
37 icate is filed, and, for the privilege of doing business in the city,
38 every such foreign corporation shall be subject to a tax for the calen-
39 dar year in which it first does business in the city, and, every federal
40 savings and loan association located within the city shall be subject to
41 a tax for the calendar year in which it first becomes located within the
42 city, computed in the same manner and at the same rate as the minimum
43 tax under subdivision two of this section, except that the income form-
44 ing the basis for proration shall be the income for such calendar year,
45 and the issued capital stock shall be taken as of the last day of such
46 calendar year; provided, however, that the tax so computed shall be
47 reduced one-twelfth for each month, or major portion thereof, in such
48 calendar year, during which such corporation was not doing business in
49 the city, or, if a federal savings and loan association, was not located
50 in the city, and in no event shall the tax be less than ten dollars
51 except that for the year nineteen hundred seventy-one and those follow-
52 ing, in no event shall the tax be less than twelve and one-half dollars.
53 4. For the privilege of doing business in the city, every such trust
54 company and savings bank which shall become incorporated between the
55 thirty-first day of December and the succeeding first day of July, shall
56 be subject to a tax for such period, computed in the same manner and at
S. 8578 587
1 the same rate as the minimum tax under subdivision two of this section,
2 except that the income forming the basis for proration shall be the
3 income for such period; and the issued capital stock, or interest cred-
4 ited to depositors of a savings bank, shall be taken as of the last day
5 of such period; provided, however, that the tax so computed shall be
6 reduced one-half and an additional one-twelfth for each month, or major
7 portion thereof, in such period, during which such trust company or
8 savings bank was not doing business in the city, and in no event shall
9 the tax be less than ten dollars except that for the year nineteen
10 hundred seventy-one and those following, in no event shall the tax be
11 less than twelve and one-half dollars.
12 5. For the privilege of doing business in the city, every such corpo-
13 ration, except trust companies and savings banks, which shall be
14 dissolved between the thirty-first day of December and the succeeding
15 second day of September, and shall not become merged or consolidated
16 with another corporation taxable under this part and, every such foreign
17 corporation which shall cease to do business in the city during the same
18 period, and every federal savings and loan association which ceases to
19 be located in the city during the same period, and shall not become
20 merged or consolidated with another corporation taxable under this part,
21 shall pay a tax for the period from the thirty-first day of December up
22 to the time of dissolution, ceasing to do business in the city, or ceas-
23 ing to be located in the city, as the case may be, equal to that which
24 would have been payable had it not been dissolved, ceased to do business
25 in the city, or ceased to be located in the city, except that such tax
26 shall be reduced one-third and an additional one-twelfth for each month,
27 or major portion thereof, prior to such succeeding second day of Septem-
28 ber, during which such corporation was not doing business in the city,
29 or was not located in the city, and in no event shall the tax be less
30 than ten dollars except that for the year nineteen hundred seventy-one
31 and those following, in no event shall the tax be less than twelve and
32 one-half dollars. If such dissolution or cessation occurs between the
33 fifteenth day of March and the second day of September, and if such
34 corporation shall have filed its return on or before the fifteenth day
35 of March as required by section 11-633 of this subchapter, it may file a
36 claim for refund as provided in section 11-678 of this chapter, showing
37 any reduction in tax to which it may be entitled as provided in the
38 preceding sentence; and if it shall be made to appear that the amount of
39 tax due is less than the amount as computed on the basis of the original
40 return, the commissioner of finance shall adjust the computation of tax
41 accordingly. If the amount of tax as so adjusted shall be less than the
42 amount theretofore paid, the excess shall be refunded by the commission-
43 er of finance as provided in subdivision one of section 11-677 of this
44 chapter.
45 6. Every such trust company and savings bank, which shall be
46 dissolved, and shall not become merged or consolidated with another
47 corporation taxable under this part, shall, if dissolution takes place
48 between the thirtieth day of June and the succeeding first day of Janu-
49 ary, be subject to a tax, for that part of such period in which it had
50 been doing business, computed in the same manner and at the same rate as
51 the minimum tax under subdivision two of this section, except that the
52 income forming the basis for proration shall be the income for the
53 calendar year in which such dissolution occurs; and the issued capital
54 stock, or interest credited to depositors of a savings bank, shall be
55 taken as of the date of dissolution; provided, however, that the tax so
56 computed shall be reduced one-half and an additional one-twelfth for
S. 8578 588
1 each month, or major portion thereof, between the date of dissolution
2 and the succeeding first day of January. If dissolution occurs between
3 the thirty-first day of December and the succeeding sixteenth day of
4 March, such trust company and savings bank shall be subject to the same
5 tax that would have been due from it on or before the fifteenth day of
6 March had it not been dissolved, except that such tax shall be reduced
7 one-twelfth for each month, or major portion thereof, from the date of
8 dissolution to the succeeding first day of July, and shall be for the
9 period beginning on the preceding first day of July and ending on the
10 date of dissolution. In no event shall the tax under this subdivision
11 be less than ten dollars except that for the year nineteen hundred
12 seventy-one and those following, in no event shall the tax under this
13 subdivision be less than twelve and one-half dollars.
14 7. In the case of a consolidation or merger of taxpayers, or in case a
15 national bank taxable under part two of this subchapter shall be consol-
16 idated or merged with a taxpayer under this part, or in case of a series
17 of such transactions, there shall be added to the net income of the
18 taxpayer resulting from such consolidations or mergers the net income of
19 the taxpayers which are consolidated or merged for the period for which
20 the taxpayer resulting from such consolidation or merger is required to
21 render any return under this part, and if such resulting taxpayer is a
22 savings bank or savings and loan association, there shall be added to
23 the interest or dividends credited by it to depositors or shareholders
24 the amount of interest or dividends credited to depositors or sharehold-
25 ers during such period by the taxpayers which are consolidated or
26 merged, except that net income, interest or dividends shall not be
27 included if they have already been used as the basis for a tax under
28 this part, and the tax payable on filing such return shall be based upon
29 the entire net income reported therein or upon the entire amount of
30 interest or dividends so reported, as the case may be. The acquisition
31 by a taxpayer, directly or indirectly, of the assets or franchises of
32 another taxpayer or national bank shall be deemed a merger for the
33 purposes of this section.
34 8. The tax imposed by this part shall be for the calendar year next
35 preceding the year in which it becomes due; except that with respect to
36 corporations subject to a tax imposed under subdivision three, four,
37 five or six of this section, the tax shall be for the period therein
38 specified, and except that with respect to corporations required to file
39 a declaration of estimated tax and to make payments on account of such
40 estimated tax as provided by section 11-636 of this subchapter, all
41 payments of tax within a calendar year, whether computed on the basis of
42 net income for the current calendar year or on the basis of net income
43 for the preceding calendar year, shall be for the calendar year in which
44 the payments are required to be made.
45 9. In the event that it shall be finally determined by a court of
46 competent jurisdiction that the taxes imposed on national banking asso-
47 ciations by part two of this subchapter are unconstitutional or invalid
48 for the reason that they are not in conformity with the provisions of
49 section fifty-two hundred nineteen of the United States revised stat-
50 utes, then, in lieu of the taxes imposed by the provisions of this part,
51 every corporation that otherwise would have been subject to tax under
52 this part shall be subject to the tax imposed under subchapter two as of
53 July thirteenth, nineteen hundred sixty-six, and all of the provisions
54 of subchapter two, unless clearly inappropriate, shall be applicable
55 except subdivision four of section 11-603 of this chapter; and, in such
56 event, any payments made, reports or returns filed or any act of the
S. 8578 589
1 commissioner of finance or of a taxpayer purportedly under this subchap-
2 ter shall be treated as though made, filed or done pursuant to subchap-
3 ter two.
4 10. Cross reference. For years for which tax is imposed, see section
5 11-613 of this part.
6 § 11-613 Years for which imposed. 1. The tax imposed by section
7 11-612 of this part is imposed for each calendar year included within
8 the period beginning January first, nineteen hundred sixty-six and
9 ending December thirty-first, nineteen hundred seventy-two.
10 2. Cross reference. For tax imposed for years or periods subsequent to
11 nineteen hundred seventy-two, see part four of this subchapter.
12 § 11-614 Ascertainment of gain or loss. 1. For the purpose of ascer-
13 taining the gain derived or loss sustained from the sale or other dispo-
14 sition of property, real, personal or mixed, the basis shall be the cost
15 thereof, or the inventoried value if the inventory is made in accordance
16 with section 11-617 of this part.
17 2. Notwithstanding subdivision one of this section, with respect to
18 gain derived from the sale or other disposition of any property acquired
19 prior to January first, nineteen hundred sixty-six, except stock in
20 trade of the taxpayer or other property of a kind which would properly
21 be included in the inventory of the taxpayer if on hand at the close of
22 the taxable year, or property held by the taxpayer primarily for sale to
23 customers in the ordinary course of its trade or business, and accounts
24 or notes receivable acquired in the ordinary course of trade or business
25 from the sale of such stock in trade or property, or for services
26 rendered, net income shall not include:
27 (a) That portion of the gain included in determining net income pursu-
28 ant to subdivision one of this section with respect to each such proper-
29 ty, which exceeds:
30 (b) The amount of gain that would be included in determining net
31 income pursuant to subdivision one of this section with respect to each
32 such property if the basis of such property on the date of sale or other
33 disposition were equal to its fair market value on January first, nine-
34 teen hundred sixty-six, plus or minus all adjustments to basis made with
35 respect to each such property in computing net income for periods on or
36 after January first, nineteen hundred sixty-six provided that the total
37 adjustment to net income provided by this subdivision shall not exceed
38 the amount of the taxpayer's net gain from the sale or other disposition
39 of all such property, as determined pursuant to subdivision one of this
40 section.
41 3. In the case of any bond, with respect to which a deduction for
42 amortizable bond premium is allowable under subdivision nine of section
43 11-621 of this part, the basis for determining gain or loss shall be
44 reduced by the total amount of such deductions so allowable.
45 § 11-615 Exchange of property. Upon the sale or exchange of property
46 the entire amount of the gain or loss, determined under section 11-614
47 of this part, shall be recognized, except as provided in this section:
48 1. No gain or loss shall be recognized if common stock in a corpo-
49 ration is exchanged solely for common stock in the same corporation, or
50 if preferred stock in a corporation is exchanged solely for preferred
51 stock in the same corporation;
52 2. No gain or loss shall be recognized if stock or securities in a
53 corporation, a party to a reorganization are, in pursuance of the plan
54 or reorganization, exchanged solely for stock or securities in such
55 corporation or in another corporation a party to such reorganization;
S. 8578 590
1 3. No gain or loss shall be recognized if a taxpayer, a party to a
2 reorganization, exchanges property, in pursuance of the plan of reorgan-
3 ization, solely for stock or securities in another corporation a party
4 to such reorganization; and
5 4. No gain or loss shall be recognized if property is transferred to a
6 corporation by a taxpayer solely in exchange for stock or securities in
7 such corporation, and immediately after the exchange such taxpayer is in
8 control of the corporation; but in the case of an exchange by a taxpayer
9 and one or more other corporations or persons this subdivision shall
10 apply only if the amount of the stock and securities received by each is
11 substantially in proportion to its interest in the property prior to the
12 exchange.
13 5. If property, as a result of its destruction in whole or in part,
14 theft or seizure, or an exercise of the power of requisition or condem-
15 nation, or the threat of imminence thereof, is compulsorily or involun-
16 tarily converted into property similar or related in service or use to
17 the property so converted, or into money which is forthwith in good
18 faith, under regulations prescribed by the commissioner of finance,
19 expended in the acquisition of other property similar or related in
20 service or use to the property so converted, or in the acquisition of
21 control of a corporation owning such other property, or in the estab-
22 lishment of a replacement fund, no gain or loss shall be recognized. If
23 any part of the money is not so expended, the gain, if any, shall be
24 recognized, but in an amount not in excess of the money which is not so
25 expended.
26 6. If there is distributed, in pursuance of a plan of reorganization,
27 to a taxpayer shareholder in a corporation a party to the reorganiza-
28 tion, stock or securities in such corporation or in another corporation
29 a party to the reorganization, without the surrender by such taxpayer
30 shareholder of stock or securities in such a corporation, no gain to the
31 distributee from the receipt of such stock or securities shall be recog-
32 nized.
33 7. If an exchange would be within the provisions of subdivision one,
34 two, or four of this section if it were not for the fact that the prop-
35 erty received in exchange consists not only of property permitted by
36 such subdivision to be received without the recognition of gain, but
37 also of other property or money, then the gain, if any, to the recipient
38 shall be recognized, but in an amount not in excess of the sum of such
39 money and the fair market value of such other property.
40 8. If an exchange would be within the provisions of subdivision three
41 of this section if it were not for the fact that the property received
42 in exchange consists not only of stock or securities permitted by such
43 subdivision to be received without the recognition of gain, but also of
44 other property or money, then:
45 (a) If the taxpayer receiving such other property or money distributes
46 it in pursuance of the plan of reorganization, no gain to the taxpayer
47 shall be recognized from the exchange, but
48 (b) If the taxpayer receiving such other property or money does not
49 distribute it in pursuance of the plan of reorganization, the gain, if
50 any, to the taxpayer shall be recognized, but in an amount not in excess
51 of the sum of such money and the fair market value of such other proper-
52 ty so received, which is not so distributed.
53 9. If an exchange would be within the provisions of subdivision one,
54 two, three, or four of this section if it were not for the fact that the
55 property received in exchange consists not only of property permitted by
56 such subdivision to be received without the recognition of gain or loss,
S. 8578 591
1 but also of other property or money, then no loss from the exchange
2 shall be recognized.
3 10. As used in this section:
4 (a) The term "reorganization" means (i) a merger or consolidation,
5 including the acquisition by one corporation of at least a majority of
6 the voting stock and at least a majority of the total number of shares
7 of all other classes of stock of another corporation, or substantially
8 all the properties of another corporation, or (ii) a transfer by a
9 corporation of all or a part of its assets to another corporation if
10 immediately after the transfer the transferor or its stockholders or
11 both are in control of the corporation to which the assets are trans-
12 ferred, or (iii) a recapitalization, or (iv) a mere change in identity,
13 form or place of organization, however effected;
14 (b) The term "a party to a reorganization" includes a corporation
15 resulting from a reorganization and includes both corporations in the
16 case of an acquisition by one corporation of at least a majority of the
17 voting stock and at least a majority of the total number of shares of
18 all other classes of stock of another corporation; and
19 (c) The term "control" means the ownership of at least eighty per
20 centum of the voting stock and at least eighty per centum of the total
21 number of shares of all other classes of stock of the corporation.
22 11. No gain or loss shall be recognized upon the receipt by a taxpayer
23 of property distributed in complete liquidation of a corporation. For
24 the purposes of this subdivision a distribution shall be considered to
25 be in complete liquidation only if:
26 (a) the taxpayer receiving such property was, on the date of the
27 adoption of the plan of liquidation, and has continued to be at all
28 times until the receipt of the property, the owner of stock, in such
29 corporation, possessing at least eighty per centum of the total combined
30 voting power of all classes of stock entitled to vote and the owner of
31 at least eighty per centum of the total number of shares of all other
32 classes of stock, except non-voting stock which is limited and preferred
33 as to dividends, and was at no time on or after the date of the adoption
34 of the plan of liquidation and until the receipt of the property the
35 owner of a greater percentage of any class of stock than the percentage
36 of such class owned at the time of the receipt of the property; and
37 either:
38 (b) the distribution is by such corporation in complete cancellation
39 or redemption of all its stock, and the transfer of all the property
40 occurs within the base year; in such case the adoption by the sharehold-
41 ers of the resolution under which is authorized the distribution of all
42 the assets of the corporation in complete cancellation or redemption of
43 all its stock, shall be considered an adoption of a plan of liquidation,
44 even though no time for the completion of the transfer of the property
45 is specified on such resolution; or
46 (c) such distribution is one of a series of distributions by such
47 corporation in complete cancellation or redemption of all its stock in
48 accordance with a plan of liquidation under which the transfer of all
49 the property under the liquidation is to be completed within three years
50 from the close of the year during which is made the first of the series
51 of distributions under the plan, except that if such transfer is not
52 completed within such period, or if the taxpayer does not continue qual-
53 ified under paragraph (a) of this subdivision until the completion of
54 such transfer, no distribution under the plan shall be considered a
55 distribution in complete liquidation.
S. 8578 592
1 If such transfer of all the property does not occur within the year,
2 the commissioner of finance may require of the taxpayer such bond, or
3 waiver of the statute of limitations on assessment and collection, or
4 both, as the commissioner may deem necessary to insure, if the transfer
5 of the property is not completed within such three year period, or if
6 the taxpayer does not continue qualified under paragraph (a) of this
7 subdivision until the completion of such transfer, the assessment and
8 collection of all taxes then imposed under this part for such year or
9 subsequent years, to the extent attributable to property so received. A
10 distribution otherwise constituting a distribution in complete liqui-
11 dation within the meaning of this paragraph shall not be considered as
12 not constituting such a distribution merely because it does not consti-
13 tute a distribution or liquidation within the meaning of the corporate
14 law under which the distribution is made; and for the purposes of this
15 paragraph a transfer of property of such corporation to the taxpayer
16 shall not be considered as not constituting a distribution, or one of a
17 series of distributions, in complete cancellation or redemption of all
18 the stock of such corporation, merely because the carrying out of the
19 plan involves: (1) the transfer under the plan to the taxpayer by such
20 corporation of property, not attributable to shares owned by the taxpay-
21 er, upon an exchange described in subdivision three of this section, and
22 (2) the complete cancellation or redemption under the plan, as a result
23 of exchanges described in subdivision two of this section, of the shares
24 not owned by the taxpayers.
25 § 11-616 Exchange of property when no gain or loss is realized. When
26 property is exchanged for other property and no gain or loss is realized
27 under the provisions of the preceding section, the property received
28 shall be treated as taking the place of the property exchanged therefor.
29 Where no gain or loss is realized under the provisions of subdivision
30 eleven of section 11-615 of this part, the basis of the property
31 received shall be the same as it would be in the hands of the transferor
32 determined in accordance with the provisions of section 11-614 of this
33 part.
34 § 11-617 Inventory. Whenever in the opinion of the commissioner of
35 finance the use of inventories is necessary in order clearly to deter-
36 mine the income of any taxpayer, inventory shall be taken by such
37 taxpayer upon such basis as the commissioner of finance may prescribe,
38 conforming as nearly as may be to the best accounting practice in the
39 banking business most clearly reflecting the income.
40 § 11-618 Net income defined. The term "net income" means the gross
41 income of a taxpayer less the deductions allowed by this part.
42 § 11-619 Computation of net income. The net income shall be computed
43 in accordance with the method of accounting regularly employed in keep-
44 ing the books of such taxpayer; but if no such method of accounting has
45 been so employed, or if the method employed does not clearly reflect the
46 income, the computation shall be made upon such basis and in such manner
47 as in the opinion of the commissioner of finance does clearly reflect
48 the income. In determining net income, war losses, taxation of property
49 recovered, and basis of property shall be treated in substantially the
50 same manner as such losses, recoveries and basis are treated under the
51 applicable provisions of section thirteen hundred thirty-one of the
52 internal revenue code.
53 § 11-620 Gross income defined. 1. The term "gross income" includes
54 gains, profits and income derived from the business, of whatever kind
55 and in whatever form paid, including gains, profits or income from deal-
56 ings in property, whether real or personal, or gains, profits or income
S. 8578 593
1 received as compensation for services, as interest, rents, commissions,
2 brokerage or other fees, or otherwise in carrying on such business,
3 including all dividends received on stocks and all interest received
4 from federal, state, municipal or other bonds.
5 2. If the gross income of a taxpayer is derived from business carried
6 on both within and without the city, "gross income" means that propor-
7 tion thereof which is derived from business carried on within the city,
8 to be allocated and determined on the basis of separate accounting for
9 each office or branch or, at the election of the taxpayer, under rules
10 and regulations prescribed by the commissioner of finance.
11 3. "Gross income" of a savings bank shall include the amount received
12 by it in any taxable year as a distribution in liquidation of the mutual
13 savings bank fund.
14 § 11-621 Deductions. In computing net income there shall be allowed as
15 deductions:
16 1. All the ordinary and necessary expenses paid or incurred during the
17 year in carrying on business, including a reasonable allowance for sala-
18 ries or other compensation for personal services actually rendered, and
19 including rentals or other payments required to be made as a condition
20 to the continued use or possession for business purposes of property to
21 which the taxpayer has not taken or is not taking title or in which such
22 taxpayer has no equity.
23 2. All interest paid or accrued during the year on indebtedness.
24 3. Taxes, other than taxes on income or profits paid or accrued within
25 the year, imposed, first, by the authority of the United States, or of
26 any of its possessions, or, second, by the authority of any state, or
27 territory, or any county, school district, municipality, or other taxing
28 subdivisions of any state or territory, not including those assessed
29 against local benefits of a kind tending to increase the value of the
30 property assessed, or, third, by the authority of any foreign govern-
31 ment.
32 4. Losses sustained during the year and not compensated for by insur-
33 ance or otherwise, if incurred in business; unless in order to clearly
34 reflect the income the losses should in the opinion of the commissioner
35 of finance be accounted for as of a different period. No deduction shall
36 be allowed for any loss claimed to have been sustained in any sale or
37 other disposition of shares of stock or securities where it appears that
38 within thirty days before or after the date such sale or other disposi-
39 tion the taxpayer has acquired substantially identical property, and the
40 property so acquired is held by the taxpayer for any period after such
41 sale or other disposition, unless such claim is made with respect to a
42 transaction made in the ordinary course of business. If such acquisi-
43 tion is to the extent of part only of substantially identical property,
44 only a proportionate part of the loss shall be disallowed.
45 5. Debts ascertained to be worthless and charged off within the year;
46 or in the discretion of the commissioner of finance a reasonable addi-
47 tion to a reserve for bad debts. When satisfied that a debt is recovera-
48 ble only in part, the commissioner of finance may allow such debt to be
49 charged off in part.
50 6. A reasonable allowance for the exhaustion, wear and tear of proper-
51 ty used in business, including a reasonable allowance for obsolescence.
52 In the case of any such property acquired before January first, nineteen
53 hundred sixty-six, the amount of such deduction shall be equal to the
54 deduction properly taken for such property in reporting the tax due
55 pursuant to the former article nine-b of the tax law. With respect to
S. 8578 594
1 property such as described in subdivision twelve of this section, this
2 deduction may be computed and allowed as provided therein.
3 7. If the gross income be derived from business carried on within and
4 without the city, the deductions allowed by this section shall be allo-
5 cated and determined on the basis of separate accounting for each office
6 or branch or, at the election of the taxpayer, under rules and regu-
7 lations to be prescribed by the commissioner of finance.
8 8. In the case of any taxpayer who establishes or maintains a pension
9 trust to provide for the payment of reasonable pensions to its employ-
10 ees, there shall be allowed as a deduction, in addition to the contrib-
11 utions to such trust during the taxable year to cover the pension
12 liability accruing during the year, allowed as a deduction under subdi-
13 vision one of this section, a reasonable amount transferred or paid into
14 such trust during the taxable year in excess of such contributions, but
15 only if such amount (a) has not theretofore been allowable as a
16 deduction, and (b) is apportioned in equal parts over a period of ten
17 consecutive years beginning with the year in which the transfer or
18 payment is made or, under regulations of the commissioner of finance,
19 covers not more than one-tenth of the total pension liability with
20 respect to services rendered prior to such taxable year; provided that
21 said deduction shall be allowable only with respect to a taxable year,
22 whether the year of the transfer or payment or a subsequent year, of the
23 taxpayer ending within or with a taxable year of the trust with respect
24 to which the trust, by reason of its purposes or activities, is exempt
25 from federal income tax.
26 9. The amount of the amortizable bond premium on a bond for the year
27 shall be allowed as a deduction as hereinafter provided. In computing
28 such deduction: (a) the amount of the bond premium shall be determined
29 with reference to the amount of the basis, for determining loss on sale
30 or exchange, of such bond, and with reference to the amount payable on
31 maturity or on earlier call date, with adjustments proper to reflect
32 unamortized bond premium with respect to the bond, for the period prior
33 to July thirteenth, nineteen hundred sixty-six with respect to the
34 taxpayer with respect to such bond, and (b) the amortizable bond premium
35 of the year shall be the amount of the bond premium attributable to such
36 year. Accordingly, such determination shall be made in accordance with
37 the method of amortizing bond premium regularly employed by the holder
38 of such bond, if such method is reasonable, and in all other cases in
39 accordance with regulations of the commissioner of finance prescribing
40 reasonable methods of amortizing bond premium. This subdivision shall
41 apply only if the taxpayer shall so elect, in accordance with regu-
42 lations of the commissioner of finance, and such election shall be made
43 separately with respect to (1) bonds, the interest of which is wholly
44 taxable, and (2) bonds, the interest of which is wholly or partially tax
45 exempt, for purposes of the income tax imposed by chapter one of the
46 internal revenue code. If such election is made with respect to any bond
47 of the taxpayer described in clauses one or two of this subdivision, it
48 shall also apply to all bonds in the same class held by the taxpayer at
49 the beginning of the first year to which the election applies and to all
50 such bonds thereafter acquired by it and shall be binding for all subse-
51 quent years with respect to all such bonds of the taxpayer, unless upon
52 the application by the taxpayer, the commissioner of finance permits the
53 taxpayer, subject to such conditions as the commissioner of finance
54 deems necessary, to revoke such election. As used in this subdivision
55 the term "bond" means any bond, debenture, note or certificate or other
56 evidence of indebtedness, issued by any corporation and bearing inter-
S. 8578 595
1 est, including any like obligation issued by a government or political
2 subdivision thereof, with interest coupons or in registered form, but
3 does not include any such obligation which constitutes stock in trade of
4 the taxpayer or any such obligation of a kind which would properly be
5 included in the inventory of the taxpayer if on hand at the close of the
6 year, or any such obligation held by the taxpayer primarily for sale to
7 customers in the ordinary course of its trade or business.
8 10. In the case of a savings bank and savings and loan association,
9 amounts paid or credited to depositors or holders of accounts as inter-
10 est or dividends on their deposits or withdrawable accounts, if such
11 amounts are withdrawable on demand subject only to customary notice of
12 intention to withdraw.
13 11. A savings bank and savings and loan association may deduct in any
14 taxable year the amount of the repayment of any loan or advance from the
15 mutual savings bank fund in computing its net income and the amount of
16 interest or dividends subject to the minimum tax under subdivision three
17 of section 11-612 of this part.
18 12. (a) At the election of the taxpayer there shall be deducted from
19 gross income, or if gross income is derived from business carried on
20 within and without this city, from the portion thereof allocated within
21 the city, depreciation with respect to any property such as described in
22 paragraph (b) of this subdivision, not exceeding twice the depreciation
23 allowed with respect to the same property for federal income tax
24 purposes.
25 (b) Such deduction shall be allowed only with respect to tangible
26 property which is depreciable pursuant to section one hundred sixty-sev-
27 en of the internal revenue code, having a situs in this city and used in
28 the taxpayer's business, (i) constructed, reconstructed or erected after
29 December thirty-first, nineteen hundred sixty-five, pursuant to a
30 contract which was on or before December thirty-first, nineteen hundred
31 sixty-seven, and at all times thereafter, binding on the taxpayer or,
32 property, the physical construction, reconstruction or erection of which
33 began on or before December thirty-first, nineteen hundred sixty-seven
34 or which began after such date pursuant to an order placed on or before
35 December thirty-first, nineteen hundred sixty-seven, and then only with
36 respect to that portion of the basis thereof which is properly attribut-
37 able to such construction, reconstruction or erection after December
38 thirty-first, nineteen hundred sixty-five, or (ii) acquired after Decem-
39 ber thirty-first, nineteen hundred sixty-five, pursuant to a contract
40 which was, on or before December thirty-first, nineteen hundred sixty-
41 seven, and at all times thereafter, binding on the taxpayer or pursuant
42 to an order placed on or before December thirty-first, nineteen hundred
43 sixty-seven, by purchase as defined in section one hundred seventy-nine
44 (d) of the internal revenue code, if the original use of such property
45 commenced with the taxpayer, commenced in this city and commenced after
46 December thirty-first, nineteen hundred sixty-five, or (iii) acquired,
47 constructed, reconstructed or erected subsequent to December thirty-
48 first, nineteen hundred sixty-seven, if such acquisition, construction,
49 reconstruction or erection is pursuant to a plan of the taxpayer which
50 was in existence December thirty-first, nineteen hundred sixty-seven and
51 not thereafter substantially modified, and such acquisition,
52 construction, reconstruction or erection would qualify under the rules
53 in paragraph four, five or six of subsection (h) of section forty-eight
54 of the internal revenue code provided all references in such paragraphs
55 four, five and six to the dates October nine, nineteen hundred sixty-six
56 and October ten, nineteen hundred sixty-six shall be read as December
S. 8578 596
1 thirty-first, nineteen hundred sixty-seven. A taxpayer shall be allowed
2 a deduction under clause (i), (ii) or (iii) of this paragraph only if
3 the tangible property shall be delivered or the construction, recon-
4 struction or erection shall be completed on or before December thirty-
5 first, nineteen hundred sixty-nine, except in the case of tangible prop-
6 erty which is acquired, constructed, reconstructed or erected pursuant
7 to a contract which was, on or before December thirty-first, nineteen
8 hundred sixty-seven, and at all times thereafter, binding on the taxpay-
9 er. Provided, however, for any taxable year beginning on or after Janu-
10 ary first, nineteen hundred sixty-eight, a taxpayer shall not be allowed
11 a deduction under paragraph (a) of this subdivision with respect to
12 tangible personal property leased by it to any other person or corpo-
13 ration. Accordingly, any contract or agreement to lease or rent or for a
14 license to use such property shall be considered a lease. With respect
15 to property which the taxpayer uses itself for purposes other than leas-
16 ing for part of a taxable year and leases for a part of a taxable year,
17 the taxpayer shall be allowed a deduction under paragraph (a) of this
18 subdivision in proportion to the part of the year it uses such property.
19 (c) If the deduction allowable for any taxable year pursuant to this
20 subdivision exceeds the taxpayer's net income computed without the
21 allowance of such deduction and without the allowance of any deduction
22 pursuant to subdivision six of this section with references to the same
23 property, the excess may be carried over to the following taxable year
24 or years and may be deducted in computing net income for such year or
25 years.
26 (d) In any taxable year when property is sold or otherwise disposed
27 of, with respect to which a deduction has been allowed pursuant to this
28 subdivision, the gain or loss thereon shall be computed by adjusting the
29 basis of such property to reflect the deductions so allowed, and if the
30 taxpayer's gross income is derived from business carried on both within
31 and without the city, shall be allocated within the city. Provided,
32 however, that no loss shall be recognized for the purposes of this para-
33 graph with respect to a sale or other disposition of property to a
34 person whose acquisition thereof is not a purchase as defined in section
35 one hundred seventy-nine (d) of the internal revenue code.
36 § 11-622 Items not deductible. In computing net income no deduction
37 shall in any case be allowed in respect of:
38 (a) Any amount paid out for new buildings or for permanent improve-
39 ments or betterments made to increase the value of any property.
40 (b) Any amount expended in restoring property or in making good the
41 exhaustion thereof for which an allowance is or has been made.
42 PART 2
43 TAX ON NATIONAL BANKING ASSOCIATIONS
44 AND PRODUCTION CREDIT ASSOCIATIONS
45 § 11-623 Imposition of tax. 1. Pursuant to the authority conferred by
46 section fifty-two hundred nineteen of the United States revised statutes
47 and in conformity with the provisions contained in subdivision c of
48 clause one of such section, every national banking association organized
49 under authority of the United States and located within the city, shall
50 annually pay a tax, measured by its net income, to be computed, as
51 provided in this part, at the rate of four and one-half per centum
52 except that for the year nineteen hundred seventy-one and those follow-
53 ing the rate shall be five and sixty-three one hundredths per centum,
54 upon the basis of its net income for the calendar year next preceding
S. 8578 597
1 the date when such tax becomes due. Such tax shall be for the calendar
2 year next preceding the year in which it becomes due; except that with
3 respect to national banking associations required to file a declaration
4 of estimated tax and to make payments on account of such estimated tax
5 in accordance with the provisions of section 11-636 of this subchapter,
6 all payments of tax within a calendar year, whether computed on the
7 basis of net income for the current calendar year or on the basis of net
8 income for the preceding calendar year, shall be for the calendar year
9 in which the payments are required to be made. If, however, such a
10 national banking association shall be dissolved between the thirty-first
11 day of December and the succeeding second day of September, and shall
12 not become merged or consolidated with a corporation taxable under part
13 one of this subchapter, it shall pay a tax for the period from the thir-
14 ty-first day of December up to the time of dissolution equal to that
15 which would have been payable had it not been dissolved, except that
16 such tax shall be reduced by one-third and an additional one-twelfth for
17 each month, or major portion thereof, prior to such succeeding second
18 day of September, during which such corporation was so dissolved. If
19 such dissolution occurs between the fifteenth day of March and the
20 second day of September, and if such corporation shall have filed its
21 return on or before the fifteenth day of March as required by sections
22 11-630 and 11-633 of this subchapter, it may file a claim for refund as
23 provided in section 11-678 of this chapter, showing any reduction in tax
24 to which it may be entitled as provided by this section; and if it shall
25 be made to appear that the amount of tax due is less than the amount as
26 computed on the basis of the original return, the commissioner of
27 finance shall adjust the computation of tax accordingly. If the amount
28 of tax as so adjusted shall be less than the amount theretofore paid,
29 the excess shall be refunded by the commissioner of finance as provided
30 in subdivision one of section 11-677 of this chapter.
31 2. In the event that the taxes imposed by this part shall be finally
32 determined to be unconstitutional or invalid for the reason that they do
33 not conform with the provisions of section fifty-two hundred nineteen of
34 the United States revised statutes, then, in lieu of the taxes imposed
35 by the provisions of this part, every national banking association and
36 every production credit association that otherwise would have been
37 subject to tax under this part shall be subject to the tax imposed under
38 subchapter two as of July thirteenth, nineteen hundred sixty-six, and
39 all of the provisions of subchapter two, unless clearly inappropriate,
40 shall be applicable except subdivision four of section 11-603 of this
41 chapter; and, in such event, any payments made, reports or returns filed
42 or any act of the commissioner of finance or of a taxpayer purportedly
43 under this subchapter shall be treated as though made, filed or done
44 pursuant to subchapter two.
45 3. Cross reference. For years for which tax is imposed, see section
46 11-624 of this part.
47 § 11-624 Years for which imposed. 1. The tax imposed by section
48 11-623 of this part is imposed for each calendar year included within
49 the period beginning January first, nineteen hundred sixty-six and
50 ending December thirty-first, nineteen hundred seventy-two.
51 2. Cross reference. For tax imposed for years or periods subsequent to
52 nineteen hundred seventy-two, see part four of this subchapter.
53 § 11-625 Ascertainment of gain or loss; exchange of property. 1.
54 For the purpose of ascertaining the gain derived or loss sustained from
55 the sale or other disposition of property, real, personal or mixed, the
S. 8578 598
1 basis shall be the cost thereof, or the inventoried value if the inven-
2 tory is made in accordance with section 11-626 of this part.
3 2. Notwithstanding subdivision one of this section, with respect to
4 gain derived from the sale or other disposition of any property acquired
5 prior to January first, nineteen hundred sixty-six, except stock in
6 trade of the taxpayer or other property of a kind which would properly
7 be included in the inventory of the taxpayer if on hand at the close of
8 the taxable year, or property held by the taxpayer primarily for sale to
9 customers in the ordinary course of its trade or business and accounts
10 or notes receivable acquired in the ordinary course of trade or business
11 from the sale of such stock in trade or property, or for services
12 rendered, net income shall not include:
13 (a) That portion of the gain included in determining net income pursu-
14 ant to subdivision one of this section with respect to each such proper-
15 ty which exceeds:
16 (b) The amount of gain, if any, that would be included in determining
17 net income pursuant to subdivision one of this section with respect to
18 each such property if the basis of such property on the date of sale or
19 other disposition were equal to its fair market value on January first,
20 nineteen hundred sixty-six, plus or minus all adjustments to basis made
21 with respect to each such property in computing net income for periods
22 on or after January first, nineteen hundred sixty-six; provided that the
23 total adjustment to net income provided by this subdivision shall not
24 exceed the amount of the taxpayer's net gain from the sale or other
25 disposition of all such property, as determined pursuant to subdivision
26 one of this section.
27 3. Upon the sale or exchange of property the amount of the gain or
28 loss shall be determined in the manner prescribed by section 11-615 of
29 this subchapter and the basis of such property shall be determined in
30 the manner prescribed by section 11-616 of this subchapter.
31 4. In the case of any bond, with respect to which a deduction for
32 amortizable bond premium is allowable under paragraph (i) of subdivision
33 one of section 11-629 of this part, the basis for determining gain or
34 loss shall be reduced by the total amount of such deductions so allow-
35 able.
36 § 11-626 Inventory. Whenever in the opinion of the commissioner of
37 finance the use of inventories is necessary in order clearly to deter-
38 mine the income of any taxpayer, inventory shall be taken by such
39 taxpayer upon such basis as the commissioner of finance may prescribe,
40 conforming as nearly as may be to the best accounting practice in the
41 banking business and most clearly reflecting the income.
42 § 11-627 Net income defined; computation. The term "net income"
43 means the gross income of a taxpayer less the deductions allowed by this
44 part. The net income shall be computed in accordance with the method of
45 accounting regularly employed in keeping the books of such taxpayer; but
46 if no such method of accounting has been so employed, or if the method
47 employed does not clearly reflect the income, the computation shall be
48 made upon such basis and in such manner as in the opinion of the commis-
49 sioner of finance does clearly reflect the income. In determining net
50 income, war losses, taxation of property recovered, and basis of proper-
51 ty shall be treated in substantially the same manner as such losses,
52 recoveries and basis are treated under the applicable provisions of
53 section thirteen hundred thirty-one of the internal revenue code.
54 § 11-628 Gross income defined. 1. The term "gross income" includes
55 gains, profit and income derived from the business, of whatever kind and
56 in whatever form paid, including gains, profits or income from dealings
S. 8578 599
1 in property, whether real or personal, or gains, profits, or income
2 received as compensation for services, as interest, rents, commissions,
3 brokerage or other fees, or otherwise in carrying on such business,
4 including all dividends received on stocks and all interest received
5 from federal, state, municipal or other bonds.
6 2. If the gross income of such an association is derived from business
7 carried on both within and without the city, "gross income" means that
8 proportion thereof which is derived from business carried on within the
9 city, to be allocated and determined on the basis of separate accounting
10 for each office or branch or, at the election of the taxpayer, under
11 rules and regulations prescribed by the commissioner of finance.
12 § 11-629 Deductions. 1. In computing net income there shall be
13 allowed as deductions:
14 (a) All the ordinary and necessary expenses paid or incurred during
15 the year in carrying on business, including a reasonable allowance for
16 salaries or other compensation for personal services actually rendered,
17 and including rentals or other payments required to be made as a condi-
18 tion to the continued use or possession for business purposes of proper-
19 ty to which the taxpayer has not taken or is not taking title or in
20 which such taxpayer has no equity;
21 (b) All interest paid or accrued during the year on indebtedness;
22 (c) Taxes, other than taxes on income or profits paid or accrued with-
23 in the year, imposed, first, by the authority of the United States, or
24 of any of its possessions, or, second, by the authority of any state, or
25 territory, or any county, school district, municipality, or other taxing
26 subdivisions of any state or territory, not including those assessed
27 against local benefits of a kind tending to increase the value of the
28 property assessed, or, third, by the authority of any foreign govern-
29 ment;
30 (d) Losses sustained during the year and not compensated for by insur-
31 ance or otherwise, if incurred in business; unless in order to clearly
32 reflect the income the losses should in the opinion of the commissioner
33 of finance be accounted for as of a different period. No deduction
34 shall be allowed for any loss claimed to have been sustained in any sale
35 or other disposition of shares of stock or securities where it appears
36 that within thirty days before or after the date of such sale or other
37 disposition the taxpayer has acquired substantially identical property,
38 and the property so acquired is held by the taxpayer for any period
39 after such sale or other disposition, unless such claim is made with
40 respect to a transaction made in the ordinary course of business. If
41 such acquisition is to the extent of part only of substantially identi-
42 cal property, only a proportionate part of the loss shall be disallowed;
43 (e) Debts ascertained to be worthless and charged off within the year;
44 or in the discretion of the commissioner of finance a reasonable addi-
45 tion to a reserve for bad debts. When satisfied that a debt is recover-
46 able only in part, the commissioner of finance may allow such debt to be
47 charged off in part;
48 (f) A reasonable allowance for the exhaustion, wear and tear of prop-
49 erty used in business, including a reasonable allowance for obsoles-
50 cence. In the case of any such property acquired before January first,
51 nineteen hundred sixty-six, the amount of such deduction shall be equal
52 to the deduction properly taken for such property in reporting the tax
53 due. With respect to property such as described in paragraph (j) of
54 this subdivision, this deduction may be computed and allowed as provided
55 therein;
S. 8578 600
1 (g) If the gross income be derived from business carried on within and
2 without the city, the deductions allowed by this section shall be allo-
3 cated and determined on the basis of separate accounting for each office
4 or branch or, at the election of the taxpayer, under rules and regu-
5 lations to be prescribed by the commissioner of finance;
6 (h) In the case of any taxpayer, who establishes or maintains a
7 pension trust to provide for the payment of reasonable pensions to its
8 employees, there shall be allowed as a deduction, in addition to the
9 contributions to such trust during the taxable years, to cover the
10 pension liability accruing during the year, allowed as a deduction under
11 paragraph (a) of this subdivision, a reasonable amount transferred or
12 paid into such trust during the taxable year in excess of such contrib-
13 utions, but only if such amount: (1) has not theretofore been allowable
14 as a deduction, and (2) is apportioned in equal parts over a period of
15 ten consecutive years beginning with the year in which the transfer of
16 payment is made; provided that said deduction shall be allowable only
17 with respect to a taxable year, whether the year of the transfer or
18 payment or a subsequent year, of the taxpayer ending within or with a
19 taxable year of the trust with respect to which the trust, by reason of
20 its purposes or activities is exempt from federal income tax;
21 (i) The amount of the amortizable bond premium on a bond for the year
22 shall be allowed as a deduction as provided in this paragraph. In
23 computing such deduction, (a) the amount of the bond premium shall be
24 determined with reference to the amount of the basis, for determining
25 loss on sale or exchange, of such bond, and with reference to the amount
26 payable on maturity or on earlier call date, with adjustments proper to
27 reflect unamortized bond premium with respect to the bond, for the peri-
28 od prior to July thirteenth, nineteen hundred sixty-six with respect to
29 the taxpayer with respect to such bond, and (b) the amortizable bond
30 premium of the year shall be the amount of the bond premium attributable
31 to such year. Such determinations shall be made in accordance with the
32 method of amortizing bond premium regularly employed by the holder of
33 such bond, if such method is reasonable, and in all other cases in
34 accordance with regulations of the commissioner of finance prescribing
35 reasonable methods of amortizing bond premium. This paragraph shall
36 apply only if the taxpayer shall so elect, in accordance with regu-
37 lations of the commissioner of finance, and such election shall be made
38 separately with respect to: (1) bonds, the interest of which is wholly
39 taxable, and (2) bonds, the interest of which is wholly or partially tax
40 exempt, for purposes of the income tax imposed by chapter one of the
41 internal revenue code. If such election is made with respect to any bond
42 of the taxpayer described in clauses one or two of this subparagraph, it
43 shall also apply to all bonds in the same class held by the taxpayer at
44 the beginning of the first year to which the election applies and to all
45 such bonds thereafter acquired by it and shall be binding for all subse-
46 quent years with respect to all such bonds of the taxpayer, unless, upon
47 application by the taxpayer, the commissioner of finance permits the
48 taxpayer, subject to such conditions as the commissioner of finance
49 deems necessary, to revoke such election. As used in this paragraph,
50 the term "bond" means any bond, debenture, note, or certificate or other
51 evidence of indebtedness, issued by any corporation and bearing inter-
52 est, including any like obligation issued by a government or political
53 subdivision thereof, with interest coupons or in registered form, but
54 does not include any such obligation which constitutes stock in trade of
55 the taxpayer or any such obligation of a kind which would properly be
56 included in the inventory of the taxpayer if on hand at the close of the
S. 8578 601
1 year, or any such obligation held by the taxpayer primarily for sale to
2 customers in the ordinary course of its trade or business; and
3 (j) (1) At the election of the taxpayer there shall be deducted from
4 gross income, or if gross income is derived from business carried on
5 within and without this city, from the portion thereof allocated within
6 the city, depreciation with respect to any property such as described in
7 subparagraph two of this paragraph, not exceeding twice the depreciation
8 allowed with respect to the same property for federal income tax
9 purposes.
10 (2) Such deduction shall be allowed only with respect to tangible
11 property which is depreciable pursuant to section one hundred sixty-sev-
12 en of the internal revenue code, having a situs in this city and used in
13 the taxpayer's business, (i) constructed, reconstructed or erected after
14 December thirty-first, nineteen hundred sixty-five, pursuant to a
15 contract which was, on or before December thirty-first, nineteen hundred
16 sixty-seven, and at all times thereafter, binding on the taxpayer or
17 pursuant to an order placed on or before December thirty-first, nineteen
18 hundred sixty-seven, by purchase as defined in section one hundred
19 seventy-nine (d), of the internal revenue code, if the original use of
20 such property commenced with the taxpayer, commenced in this city and
21 commenced after December thirty-first, nineteen hundred sixty-five or
22 (ii) acquired, constructed, reconstructed, or erected subsequent to
23 December thirty-first, nineteen hundred sixty-seven, if such acquisi-
24 tion, construction, reconstruction or erection is pursuant to a plan of
25 the taxpayer which was in existence December thirty-first, nineteen
26 hundred sixty-seven and not thereafter substantially modified, and such
27 acquisition, construction, reconstruction or erection would qualify
28 under the rules in paragraph four, five or six of subsection (h) of
29 section forty-eight of the internal revenue code provided all references
30 in such paragraphs four, five and six to the dates October nine, nine-
31 teen hundred sixty-six, and October ten, nineteen hundred sixty-six,
32 shall read as December thirty-first, nineteen hundred sixty-seven. A
33 taxpayer shall be allowed a deduction under clause (i) or (ii) of this
34 subparagraph only if the tangible property shall be delivered or the
35 construction, reconstruction or erection shall be completed on or before
36 December thirty-first, nineteen hundred sixty-nine, except in the case
37 of tangible property which is acquired, constructed, reconstructed or
38 erected pursuant to a contract which was, on or before December thirty-
39 first, nineteen hundred sixty-seven, and at all times thereafter, bind-
40 ing on the taxpayer. Provided, however, for any taxable year beginning
41 on or after January first, nineteen hundred sixty-eight, a taxpayer
42 shall not be allowed a deduction under paragraph (a) of this subdivision
43 with respect to tangible personal property leased by it to any other
44 person or corporation. Any such contract or agreement to lease or rent
45 or for a license to use such property shall be considered a lease. With
46 respect to property which the taxpayer uses itself for purposes other
47 than leasing for part of a taxable year and leases for a part of a taxa-
48 ble year, the taxpayer shall be allowed a deduction under paragraph (a)
49 of this subdivision in proportion to the part of the year it uses such
50 property.
51 (3) If the deduction allowable for any taxable year pursuant to this
52 subdivision exceeds the taxpayer's net income computed without the
53 allowance of such deduction and without the allowance of any deduction
54 pursuant to paragraph (f) of this subdivision with reference to the same
55 property, the excess may be carried over to the following taxable year
S. 8578 602
1 or years and may be deducted in computing net income for such year or
2 years.
3 (4) In any taxable year when property is sold or otherwise disposed
4 of, with respect to which a deduction has been allowed pursuant to this
5 paragraph, the gain or loss thereon shall be computed by adjusting the
6 basis of such property to reflect the deductions so allowed, and if the
7 taxpayer's gross income is derived from business carried on both within
8 and without the city, shall be allocated within the city. Provided,
9 however, that no loss shall be recognized for the purposes of this para-
10 graph with respect to a sale or other disposition of property to a
11 person whose acquisition thereof is not a purchase as defined in section
12 one hundred seventy-nine (d) of the internal revenue code.
13 2. In computing net income no deduction shall in any case be allowed
14 in respect of:
15 (a) Any amount paid out for new buildings or for permanent improve-
16 ments or betterments made to increase the value of any property.
17 (b) Any amount expended in restoring or in making good the exhaustion
18 thereof for which an allowance is or has been made.
19 § 11-630 Administration; procedure; provisions of law applicable.
20 For the purpose of carrying into effect the provisions of this part, and
21 except as otherwise provided in this part, income shall be computed,
22 gain or loss ascertained, deductions made, apportionments and allo-
23 cations determined, at the same time and subject to the same limitations
24 and conditions, in so far as practicable, as is provided by part one of
25 this subchapter in relation to the tax imposed by such part.
26 § 11-631 Tax on production credit associations. Pursuant to the
27 authority conferred by the federal farm credit act of nineteen hundred
28 thirty-three, every production credit association organized under the
29 authority of the United States and located within the city after the
30 stock held in it by the federal production credit corporation has been
31 retired shall annually pay a tax measured by its net income, which shall
32 be computed in the same manner as the tax imposed upon national banking
33 associations by section 11-623 of this part and shall be subject to the
34 provisions of sections 11-624 of this part to 11-630 of this part inclu-
35 sive.
36 § 11-632 Applicability of part three. 1. This part shall be applica-
37 ble only to the taxes imposed by parts one and two of this subchapter.
38 2. Cross reference. For years for which parts one and two of this
39 subchapter impose a tax, see sections 11-613 and 11-624 of this subchap-
40 ter.
41 PART 3
42 ADMINISTRATION FOR PARTS 1 AND 2
43 § 11-633 Taxpayer's returns. 1. Every taxpayer, on or before March
44 fifteenth of each year, beginning with the year nineteen hundred sixty-
45 seven and ending with the year nineteen hundred seventy-three, shall
46 make a return subscribed by the taxpayer and affirmed by the taxpayer to
47 be true under the penalties of perjury to the commissioner of finance,
48 for the calendar year next preceding, as to the business or that portion
49 of the business of such taxpayer the income from which is the basis of
50 taxation under part one or two of this subchapter, except that every
51 trust company and savings bank which shall become incorporated between
52 the thirty-first day of December and the succeeding first day of July,
53 shall make its return for such period on or before September first, and
54 every taxpayer, other than a trust company and savings bank, which shall
S. 8578 603
1 commence to do business in the city or become located in the city, shall
2 make its return for the calendar year in which it commences to do busi-
3 ness or becomes located, on or before the twentieth day of January of
4 the year succeeding such calendar year, and except that every taxpayer,
5 other than a trust company and savings bank, which shall be dissolved,
6 cease to do business in the city or cease to be located in the city,
7 between the thirty-first day of December and the succeeding sixteenth
8 day of March and shall not become merged or consolidated with another
9 corporation taxable under the same part, shall make its return for such
10 period on or before the date of such dissolution, or cessation of busi-
11 ness, and every trust company and savings bank which shall be dissolved,
12 and shall not become merged or consolidated with another corporation
13 taxable under the same part, shall make its return, for the period for
14 which it is taxable under subdivision six of section 11-612 of this
15 subchapter on or before the date of such dissolution. Such return shall
16 be in such form and contain such information as the commissioner of
17 finance may require for the purpose of making any computation or other-
18 wise performing its duty under parts one, two, and three of this
19 subchapter. Such return shall state specifically the items of gross
20 income derived from such business and the deductions allowed by the part
21 for which the return is filed, the net income which is the basis of the
22 tax, and the amount of tax due. The return shall be subscribed by the
23 president, vice-president, treasurer, assistant treasurer, chief
24 accounting officer or any other officer of the taxpayer duly authorized
25 so to act. The fact that an individual's name is signed on the return
26 shall be prima facie evidence that such individual is authorized to
27 subscribe and affirm the return on behalf of the corporation. Blank
28 forms of return shall be furnished by the commissioner of finance upon
29 application, but failure to secure the form shall not relieve any
30 taxpayer from the obligation of making any return herein required. An
31 automatic extension of three months for the filing of its annual return
32 shall be allowed for any taxpayer if, within the time prescribed under
33 this subdivision for the filing thereof, such taxpayer files with the
34 commissioner of finance an application for extension in such form as the
35 commissioner of finance may prescribe by regulation and pays on or
36 before the date of such filing the amount properly estimated as its tax.
37 The commissioner of finance may grant a reasonable extension of time for
38 filing a return, which may be in addition to any three-month automatic
39 extension allowed, whenever in the commissioner's judgment good cause
40 exists and shall keep a record of every such extension and the reason
41 therefor. No such extension or extensions shall aggregate more than
42 three months, exclusive of any automatic extension.
43 2. If the amount of taxable income for any year of any taxpayer as
44 returned to the United States treasury department or the New York state
45 tax department is changed or corrected by the commissioner of internal
46 revenue or other officer of the United States or the New York state tax
47 commission or other competent authority; or if a taxpayer, pursuant to
48 subsection (d) of section sixty-two hundred thirteen of the internal
49 revenue code, executes a notice of waiver of the restrictions provided
50 in subsection (a) of such section, or if a taxpayer, pursuant to subdi-
51 vision (f) of section one thousand eighty-one of the tax law, executes a
52 notice of waiver of the restrictions provided in subdivision (c) of such
53 section, such taxpayer shall report such change or corrected taxable
54 income or such execution of such notice of waiver and the changes or
55 corrections of such taxpayer's federal or New York state taxable income
56 on which it is based, within ninety days after such execution or the
S. 8578 604
1 final determination of such change or correction, or as required by the
2 commissioner of finance, and shall concede the accuracy of such determi-
3 nation or state wherein it is erroneous. Any taxpayer filing an amended
4 return with such department shall also file within ninety days thereaft-
5 er an amended return with the commissioner of finance which shall
6 contain such information as it shall require.
7 § 11-634 Consolidated returns. Corporations which are affiliated
8 may, if authorized, and shall, if required, by the commissioner of
9 finance, under regulations prescribed by the commissioner of finance,
10 make a consolidated return for the purpose of parts one, two and three
11 of this subchapter. The commissioner of finance may, in his or her
12 discretion, authorize bank holding companies as defined in article
13 three-a of the banking law to make a consolidated return with affiliated
14 corporations taxable under part one and under part two of this subchap-
15 ter in which case the consolidated tax will be computed in accordance
16 with the provisions of part one of this subchapter. In all other cases
17 in which a corporation taxable under part two of this subchapter makes a
18 consolidated return with corporations taxable under part one of this
19 subchapter, the consolidated tax will be computed in accordance with the
20 provisions of part one of this subchapter. In any case in which a tax is
21 assessed upon the basis of a consolidated return, the total tax shall be
22 computed in the first instance as a unit and shall then be assessed upon
23 the respective affiliated corporations in such proportions as may be
24 agreed upon among them, or in the absence of any such agreement, then on
25 the basis of the net income properly assignable to each.
26 § 11-635 Payment of tax. Each taxpayer shall, at the time of filing
27 its return, pay to the commissioner of finance:
28 (a) the amount of tax payable under part one or two of this subchapter
29 as the same shall appear from the face of the return, or
30 (b) if payments of estimated tax have been made pursuant to section
31 11-636 of this part, the balance, if any, of the tax payable under part
32 one or two of this subchapter, as the same shall appear from the face of
33 the return, after applying thereto any payments made pursuant to said
34 section.
35 If the time for filing the return shall be extended, the taxpayer
36 shall pay in addition interest at the rate of six per centum per annum
37 from the time when the return was originally required to be filed to the
38 time of payment upon the amount by which the tax, or the portion thereof
39 payable when the return was required to be filed, exceeds the amount
40 then paid:
41 (1) a payment made on or before the date of filing of an application
42 for an automatic extension shall be deemed properly estimated if its
43 either: (A) not less than ninety per centum of the tax as finally
44 determined, or (B) not less than the tax shown on the taxpayer's return
45 for the preceding taxable year, if such preceding year was a taxable
46 year of twelve months; and
47 (2) the time when a return is required to be filed shall be determined
48 without regard to any extension of time for filing such return.
49 § 11-636 Declaration of estimated tax; payments on account of esti-
50 mated tax. 1. Every taxpayer subject to the tax imposed by part one or
51 two of this subchapter shall make a declaration of the estimated tax
52 upon the basis of its net income for the current calendar year, contain-
53 ing such information as the commissioner of finance may prescribe by
54 regulations or instructions, if such estimated tax can reasonably be
55 expected to exceed one thousand dollars.
S. 8578 605
1 2. The term "estimated tax" means the amount which a taxpayer esti-
2 mates to be the tax imposed upon it by part one or two of this subchap-
3 ter upon the basis of its net income for the current calendar year, less
4 the amount which it estimates to be the sum of any credits allowable
5 against the tax.
6 3. A declaration of estimated tax shall be filed on or before June
7 fifteenth of the calendar year upon the net income of which the tax is
8 based, except that if the requirements of subdivision one of this
9 section are first met:
10 (a) after June first and before October second of such calendar year,
11 the declaration shall be filed on or before October fifteenth, or
12 (b) after October first of such calendar year, the declaration shall
13 be filed on or before January fifteenth of the succeeding calendar year.
14 Notwithstanding any other provision of this subdivision, no declara-
15 tion need be filed prior to September eleventh, nineteen hundred sixty-
16 six.
17 4. A taxpayer may amend a declaration under regulations of the commis-
18 sioner of finance.
19 5. If, on or before February fifteenth of the succeeding year, a
20 taxpayer files its return for the calendar year upon the net income of
21 which the declaration is required to be based, and pays therewith the
22 balance, if any, of the full amount of the tax shown to be due on the
23 return,
24 (a) such return shall be considered as its declaration if no declara-
25 tion was required to be filed during such calendar year, but is other-
26 wise required to be filed on or before January fifteenth of the succeed-
27 ing year pursuant to subdivision three of this section,
28 (b) such return shall be considered as an amendment permitted by
29 subdivision four of this section to be filed on or before January
30 fifteenth if the tax shown on the return is greater than the estimated
31 tax shown on a declaration previously made.
32 6. The commissioner of finance may grant a reasonable extension of
33 time, not to exceed three months, for the filing of any declaration
34 required pursuant to this section, on such terms and conditions as the
35 commissioner may require.
36 7. Every taxpayer subject to the tax imposed by part one or two of
37 this subchapter shall pay with the return of tax, if any, required to be
38 filed upon the basis of its net income for the preceding calendar year,
39 or with an application for extension of the time for filing such return,
40 an amount equal to twenty-five per centum of the preceding year's tax,
41 if such preceding year's tax exceeded one thousand dollars.
42 8. The estimated tax with respect to which a declaration for such
43 calendar year is required pursuant to this section shall be paid as
44 follows:
45 (a) If the declaration is filed on or before June fifteenth, the esti-
46 mated tax shown thereon, after applying thereto the amount if any, paid
47 during the same calendar year pursuant to subdivision seven of this
48 section, shall be paid in three equal installments. One of such
49 installments shall be paid at the time of the filing of the declaration,
50 one shall be paid on the following October fifteenth, and one on the
51 following January fifteenth.
52 (b) If the declaration is filed after June fifteenth, and not after
53 October fifteenth of such calendar year, and is not required to be filed
54 on or before June fifteenth of such calendar year, the estimated tax
55 shown on such declaration, after applying thereto the amount, if any,
56 paid during the same calendar year pursuant to subdivision seven of this
S. 8578 606
1 section, shall be paid in two equal installments. One of such install-
2 ments shall be paid at the time of the filing of the declaration and one
3 shall be paid on the following January fifteenth.
4 (c) If the declaration is filed after October fifteenth of such calen-
5 dar year, and is not required to be filed on or before October fifteenth
6 of such calendar year, the estimated tax shown on such declaration,
7 after applying thereto the amount, if any, paid in respect of such
8 calendar year pursuant to subdivision seven of this section, shall be
9 paid in full at the time of the filing of the declaration.
10 (d) If the declaration is filed after the time prescribed therefor, or
11 after the expiration of any extension of time therefor, paragraphs (b)
12 and (c) of this subdivision shall not apply, and there shall be paid at
13 the time of such filing all installments of estimated tax payable at or
14 before such time, and the remaining installments shall be paid at the
15 times at which, and in the amounts in which, they would have been paya-
16 ble if the declaration had been filed when due.
17 9. If any amendment of a declaration is filed, the remaining install-
18 ments, if any, shall be ratably increased or decreased, as the case may
19 be, to reflect any increase or decrease in the estimated tax by reason
20 of such amendment, and if any amendment is made after October fifteenth
21 of the calendar year, any increase in the estimated tax by reason there-
22 of shall be paid at the time of making such amendment.
23 10. Any amount paid pursuant to subdivision seven of this section
24 shall be applied after payment as a first installment against the esti-
25 mated tax of the taxpayer shown on the declaration next required to be
26 filed pursuant to this section or, if no declaration of estimated tax is
27 required to be filed by the taxpayer pursuant to this section, any such
28 amount shall be considered a payment on account of the tax shown on the
29 return of tax required to be filed by the taxpayer upon the basis of its
30 net income for the calendar year during which such amount was paid.
31 11. Notwithstanding the provisions of section 11-679 of this chapter
32 or of section three-a of the general municipal law, if any amount paid
33 pursuant to subdivision seven of this section, exceeds the tax shown on
34 the return required to be filed by the taxpayer upon the basis of its
35 net income for the calendar year during which the amount was paid,
36 interest shall be allowed and paid on the amount by which the amount so
37 paid pursuant to such subdivision exceeds such tax, at the rate of six
38 per centum per annum from the date of payment of the amount so paid
39 pursuant to such subdivision to March fifteenth of the succeeding calen-
40 dar year, provided, however, that no interest shall be allowed or paid
41 under this subdivision if the amount thereof is less than one dollar.
42 12. As used in this section, "the preceding year's tax" means the tax
43 imposed upon the taxpayer by part one or two of this subchapter upon the
44 basis of its net income for the preceding calendar year, or, for
45 purposes of computing the first installment of estimated tax when an
46 application has been filed for extension of time for filing the return
47 required to be filed for such preceding calendar year, the amount prop-
48 erly estimated pursuant to section 11-635 of this part as the tax
49 imposed upon the basis of its net income for such calendar year.
50 13. This section shall apply to an income period of less than twelve
51 months in accordance with regulations of the commissioner of finance.
52 14. The commissioner of finance may grant a reasonable extension of
53 time, not to exceed six months, for payment of any installment of esti-
54 mated tax required pursuant to this section, on such terms and condi-
55 tions as the commissioner may require, including the furnishing of a
56 bond or other security by the taxpayer in an amount not exceeding twice
S. 8578 607
1 the amount for which any extension of time for payment is granted,
2 provided however, that interest at the rate of six per centum per annum
3 for the period of the extension shall be charged and collected on the
4 amount for which any extension of time for payment is granted under this
5 subdivision.
6 15. A taxpayer may elect to pay any installment of estimated tax prior
7 to the date prescribed in this section for payment thereof.
8 § 11-637 Real property taxable. Nothing in this subchapter shall be
9 construed to exempt the real property of any taxpayer from taxation to
10 the same extent, according to its value, as other real property is
11 taxed.
12 PART 4
13 BANKING CORPORATION TAX
14 § 11-638 General definitions. As used in this part:
15 (a) The word "taxpayer" means a corporation or association subject to
16 a tax imposed by this part.
17 (b) The phrase "taxable year" means the taxpayer's taxable year for
18 federal income tax purposes, or the part thereof during which the
19 taxpayer is subject to the tax imposed by this part.
20 (c) The term "international banking facility" shall mean an interna-
21 tional banking facility located in New York state and shall have the
22 same meaning as is set forth in the New York state banking law or regu-
23 lations of the New York state banking department or as is set forth in
24 the laws of the United States or regulations of the board of governors
25 of the federal reserve system.
26 (d) The term "subsidiary" means a corporation or association of which
27 over fifty percent of the number of shares of stock entitling the hold-
28 ers thereof to vote for the election of directors or trustees is owned
29 by the taxpayer.
30 (e) The term "subsidiary capital" means investments in the stock of
31 subsidiaries and any indebtedness from subsidiaries, exclusive of
32 accounts receivable acquired in the ordinary course of trade or business
33 for services rendered or for sales of property held primarily for sale
34 to customers, whether or not evidenced by written instrument, on which
35 interest is not claimed and deducted by the subsidiary for purposes of
36 taxation under this part or subchapter two of this chapter, provided,
37 however, there shall be deducted from subsidiary capital any liabilities
38 payable by their terms on demand or within one year from the date
39 incurred, other than loans or advances outstanding for more than a year
40 as of any date during the year covered by the return, which are attrib-
41 utable to subsidiary capital.
42 (f) The term "financial holding company" means a corporation that,
43 pursuant to subsection (l) of section four of the federal bank holding
44 company act of nineteen hundred fifty-six, as amended, has filed with
45 the federal reserve board a written declaration that the corporation
46 elects to be a financial holding company and whose election has not been
47 found to be ineffective by the federal reserve board.
48 § 11-639 Imposition of tax. (a) (1) For the privilege of doing busi-
49 ness in the city in a corporate or organized capacity, a tax, computed
50 under section 11-643 of this part, is hereby annually imposed on every
51 banking corporation for each of its taxable years, or any part thereof,
52 beginning on or after January first, nineteen hundred seventy-three and
53 before January first, two thousand fifteen.
S. 8578 608
1 (2) For the privilege of doing business in the city in a corporate or
2 organized capacity, a tax, computed under section 11-643 of this part,
3 is hereby annually imposed on every banking corporation for each taxable
4 year, or any part thereof, commencing on or after January first, two
5 thousand fifteen, where such banking corporation (i) has an election in
6 effect under subsection (a) of section thirteen hundred sixty-two of the
7 internal revenue code of 1986, as amended, or (ii) is a qualified
8 subchapter S subsidiary within the meaning of paragraph three of
9 subsection (b) of section thirteen hundred sixty-one of the internal
10 revenue code of nineteen eighty-six, as amended.
11 (b) In the case of a taxpayer whose taxable year is other than a
12 calendar year, there is hereby imposed a tax for the privilege of doing
13 business in the city in a corporate or organized capacity for the period
14 beginning January first, nineteen hundred seventy-three and extending
15 through the subsequent part of its first such taxable year ending after
16 such date. Such tax shall be computed under section 11-643 of this part
17 on the basis of such taxpayer's entire net income, or other applicable
18 basis as the case may be, for such period and shall be paid with a
19 return which shall be separately filed with the department of finance
20 not later than the fifteenth day of the third month succeeding the close
21 of such period. The requirements of sections 11-644 and 11-645 of this
22 part, relating to declarations and payments of estimated tax, except
23 subdivision (a) of section 11-645 of this part, shall not be applicable
24 to the tax imposed by this subdivision.
25 (c) For taxable years beginning on or after January first, two thou-
26 sand eleven, (1) a banking corporation is doing business in the city in
27 a corporate or organized capacity if (i) it has issued credit cards to
28 one thousand or more customers who have a mailing address within the
29 city as of the last day of its taxable year, or (ii) it has merchant
30 customer contracts with merchants and the total number of locations
31 covered by those contracts equals one thousand or more locations in the
32 city to whom the banking corporation remitted payments for credit card
33 transactions during the taxable year, or (iii) it has receipts of one
34 million dollars or more in the taxable year from its customers who have
35 been issued credit cards by the banking corporation and have a mailing
36 address within the city, or (iv) it has receipts of one million dollars
37 or more arising from merchant customer contracts with merchants relating
38 to locations in the city, or (v) the sum of the number of customers
39 described in subparagraph (i) of this paragraph plus the number of
40 locations covered by its contracts described in subparagraph (ii) of
41 this paragraph equals one thousand or more, or the amount of its
42 receipts described in subparagraphs (iii) and (iv) of this paragraph
43 equals one million dollars or more. For purposes of this paragraph,
44 receipts from processing credit card transactions for merchants include
45 merchant discount fees received by the banking corporation.
46 (2) As used in this subdivision, the term "credit card" includes bank,
47 credit, travel and entertainment cards.
48 (d) Cross-Reference. For the taxation of corporations that are not
49 described in paragraph two of subdivision (a) of this section, that were
50 taxable under this subchapter for tax years beginning before January
51 first, two thousand fifteen, see subchapter three-A of this chapter.
52 § 11-640 Banking, corporation defined; exempt corporations. (a) For
53 the purpose of this part, a banking corporation means:
54 (1) every corporation or association organized under the laws of this
55 state which is authorized to do a banking business or which is doing a
56 banking business;
S. 8578 609
1 (2) every corporation or association organized under the laws of any
2 other state or country which is doing a banking business;
3 (3) every national banking association organized under the authority
4 of the United States which is doing a banking business;
5 (4) every federal savings bank which is doing a banking business;
6 (5) every federal savings and loan association which is doing a bank-
7 ing business;
8 (6) a production credit association organized under the federal farm
9 credit act of nineteen hundred thirty-three, which is doing a banking
10 business and all of whose stock held by the federal production credit
11 corporation has been retired;
12 (7) every other corporation or association organized under the author-
13 ity of the United States which is doing a banking business;
14 (8) the mortgage facilities corporation created in article seven of
15 the private housing finance law;
16 (9) any corporation sixty-five percent or more of whose voting stock
17 is owned or controlled, directly or indirectly, by a corporation or
18 corporations subject to article three-a of the banking law, or regis-
19 tered under the federal bank holding company act of nineteen hundred
20 fifty-six, as amended, or registered as a savings and loan holding
21 company, but excluding a diversified savings and loan holding company,
22 under the federal national housing act, as amended, or by a corporation
23 or corporations described in paragraphs one through eight of this subdi-
24 vision, provided the corporation whose voting stock is so owned or
25 controlled is principally engaged in a business, regardless of where
26 conducted, which (i) might be lawfully conducted by a corporation
27 subject to article three of the banking law or by a national banking
28 association or (ii) is so closely related to banking or managing or
29 controlling banks as to be a proper incident thereto, as set forth in
30 paragraph eight of subsection (c) or subparagraph (F) of paragraph four
31 of subsection (k) of section four of the federal bank holding company
32 act of nineteen hundred fifty-six, as amended, or (iii) holds and
33 manages investment assets, including but not limited to bonds, notes,
34 debentures and other obligations for the payment of money, stocks, part-
35 nership interests or other equity interests, and other investment secu-
36 rities, and which is not a business described in subparagraph (i) or
37 (ii) of this paragraph.
38 (b) Banking business defined. The words "banking business" as used in
39 this section mean such business as a corporation or association may be
40 created to do under article three, three-B, five, five-A, six or ten of
41 the banking law or any business which a corporation or association is
42 authorized by such article to do. However, with respect to a national
43 banking association organized under the authority of the United States,
44 a federal savings bank, a federal savings and loan association or a
45 production credit association, the words "banking business" as used in
46 this section mean such business as a national banking association,
47 federal savings bank, federal savings and loan association or production
48 credit association, respectively, may be created to do or is authorized
49 to do under the laws of the United States or this state. The words
50 "banking business" as used in this section shall also mean such business
51 as any corporation or association organized under the authority of the
52 United States or organized under the laws of any other state or country
53 has authority to do which is substantially similar to the business which
54 a corporation or association may be created to do under article three,
55 three-B, five, five-A, six or ten of the banking law or any business
56 which a corporation or association is authorized by such article to do.
S. 8578 610
1 (c) Exempt corporations. A trust company all of whose capital stock is
2 owned by twenty or more savings banks organized under New York law shall
3 be exempt from the tax under this part.
4 (d) Corporations taxable under subchapter two. Notwithstanding the
5 provisions of this part, all corporations of classes now or heretofore
6 taxable under subchapter two of this chapter shall continue to be taxa-
7 ble under subchapter two of this chapter, except: (1) corporations
8 organized under article five-A of the banking law; (2) corporations
9 subject to article three-A of the banking law, or registered under the
10 federal bank holding company act of nineteen hundred fifty-six, as
11 amended, or registered as a savings and loan holding company, but
12 excluding a diversified savings and loan holding company, under the
13 federal national housing act, as amended, which make a combined return
14 under the provisions of subdivision (f) of section 11-646 of this part;
15 (3) banking corporations described in paragraph nine of subdivision (a)
16 of this section; and (4) any captive REIT or captive RIC that is
17 required to be included in a combined return under the provisions of
18 section 11-646 of this part. Provided, however, that a corporation
19 described in paragraph three of this subdivision which was subject to
20 the tax imposed by subchapter two of this chapter for its taxable year
21 ending during nineteen hundred eighty-four may, on or before the due
22 date for filing its return, determined with regard to extensions, for
23 its taxable year ending during nineteen hundred eighty-five, make a one
24 time election to continue to be taxable under such subchapter two. Such
25 election shall continue to be in effect until revoked by the taxpayer.
26 In no event shall such election or revocation be for a part of a taxable
27 year.
28 (e) Corporations taxable under article thirty-three of the tax law.
29 Except for corporations described in subsection (l) of section fourteen
30 hundred fifty-three of the tax law, corporations liable to tax under
31 article thirty-three of the tax law shall not be subject to tax under
32 this part.
33 (f) A banking corporation organized under the laws of a country, or
34 any political subdivision thereof, other than the United States shall
35 not be deemed to be doing business in the city under this subchapter if
36 its activities in the city are limited solely to (1) investing or trad-
37 ing in stocks and securities for its own account within the meaning of
38 clause (ii) of subparagraph (A) of paragraph two of subsection (b) of
39 section eight hundred sixty-four of the internal revenue code or (2)
40 investing or trading in commodities for its own account within the mean-
41 ing of clause (ii) of subparagraph (B) of paragraph two of subsection
42 (b) of section eight hundred sixty-four of the internal revenue code or
43 (3) any combination of activities described in paragraphs one and two of
44 this subdivision.
45 (g) Transitional provisions relating to the enactment and implementa-
46 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding
47 anything to the contrary contained in this section other than subdivi-
48 sion (m) of this section, a corporation that was in existence before
49 January first, two thousand and was subject to tax under subchapter two
50 of this chapter for its last taxable year beginning before January
51 first, two thousand, shall continue to be taxable under subchapter two
52 of this chapter for all taxable years beginning on or after January
53 first, two thousand and before January first, two thousand one;
54 provided, however, this shall not apply to any taxable year during which
55 such corporation is a banking corporation described in paragraphs one
56 through eight of subdivision (a) of this section. Notwithstanding
S. 8578 611
1 anything to the contrary contained in this section other than subdivi-
2 sion (m) of this section, a banking corporation that was in existence
3 before January first, two thousand and was subject to tax under this
4 subchapter for its last taxable year beginning before January first, two
5 thousand, shall continue to be taxable under this subchapter for all
6 taxable years beginning on or after January first, two thousand and
7 before January first, two thousand one. Provided, however, that nothing
8 in this subdivision shall prohibit a corporation that elected pursuant
9 to subdivision (d) of this section to be taxable under subchapter two of
10 this chapter from revoking that election in accordance with such subdi-
11 vision (d).
12 For purposes of this paragraph, a corporation shall be considered to
13 be subject to tax under subchapter two of this chapter for a taxable
14 year if such corporation was not a taxpayer but was properly included in
15 a combined report filed pursuant to subdivision four of section 11-605
16 of this chapter for such taxable year and a corporation shall be consid-
17 ered to be subject to tax under this subchapter for a taxable year if
18 such corporation was not a taxpayer but was properly included in a
19 combined report filed pursuant to subdivision (f) or (g) of section
20 11-646 of this chapter for such taxable year. A corporation that was in
21 existence before January first, two thousand but first becomes a taxpay-
22 er in a taxable year beginning on or after January first, two thousand
23 and before January first, two thousand one, shall be considered for
24 purposes of this paragraph to have been subject to tax under subchapter
25 two of this chapter for its last taxable year beginning before January
26 first, two thousand if such corporation would have been subject to tax
27 under such subchapter for such taxable year if it had been a taxpayer
28 during such taxable year. A corporation that was in existence before
29 January first, two thousand but first becomes a taxpayer in a taxable
30 year beginning on or after January first, two thousand and before Janu-
31 ary first, two thousand one, shall be considered for purposes of this
32 paragraph to have been subject to tax under this subchapter for its last
33 taxable year beginning before January first, two thousand if such corpo-
34 ration would have been subject to tax under this subchapter for such
35 taxable year if it had been a taxpayer during such taxable year.
36 (2) Notwithstanding anything to the contrary contained in this section
37 other than subdivision (m) of this section, a corporation formed on or
38 after January first, two thousand and before January first, two thousand
39 one may elect to be subject to tax under this subchapter or under
40 subchapter two of this chapter for its first taxable year beginning on
41 or after January first, two thousand and before January first, two thou-
42 sand one in which either (i) sixty-five percent or more of its voting
43 stock is owned or controlled, directly or indirectly by a financial
44 holding company, provided the corporation whose voting stock is so owned
45 or controlled is principally engaged in activities that are described in
46 paragraph four or five of subdivision (k) of section four of the federal
47 bank holding company act of nineteen hundred fifty-six, as amended and
48 the regulations promulgated pursuant to the authority of such section or
49 (ii) it is a financial subsidiary. An election under this paragraph may
50 not be made by a corporation described in paragraphs one through eight
51 of subdivision (a) of this section or in subdivision (e) of this
52 section. In addition, an election under this paragraph may not be made
53 by a corporation that is a party to a reorganization, as defined in
54 subsection (a) of section three hundred sixty-eight of the internal
55 revenue code of nineteen hundred eighty-six, as amended, of a corpo-
56 ration described in paragraph one of this subdivision if both corpo-
S. 8578 612
1 rations were sixty-five percent or more owned or controlled, directly or
2 indirectly by the same interests at the time of the reorganization.
3 An election under this paragraph must be made by the taxpayer on or
4 before the due date for filing its return, determined with regard to
5 extensions of time for filing, for the applicable taxable year. The
6 election to be taxed under subchapter two of this chapter shall be made
7 by the taxpayer by filing the return required pursuant to subdivision
8 one of section 11-605 of this chapter and the election to be taxed under
9 this subchapter shall be made by the taxpayer by filing the return
10 required pursuant to subdivision (a) of section 11-646 of this chapter.
11 Any election made pursuant to this paragraph shall be irrevocable and
12 shall apply to each subsequent taxable year beginning on or after Janu-
13 ary first, two thousand and before January first, two thousand one,
14 provided that the stock ownership requirements described in subparagraph
15 (i) of this paragraph are met or such corporation described in subpara-
16 graph (ii) of this paragraph continues as a financial subsidiary.
17 (3) For purposes of this section, a financial subsidiary means a
18 corporation (i) sixty-five percent or more of whose voting stock is
19 owned or controlled, directly or indirectly by a banking corporation
20 described in paragraph one, two or three of subdivision (a) of this
21 section and (ii) is described in subdivision (g) of section five thou-
22 sand one hundred thirty-six-A of the revised statutes of the United
23 States or section forty-six of the federal deposit insurance act. For
24 purposes of this subchapter, the term "banking corporation" shall
25 include a corporation electing to be taxed under this subchapter pursu-
26 ant to paragraph two of this subdivision for so long as such election
27 shall be in effect.
28 (4) The provisions of this subdivision shall not apply to a captive
29 REIT or a captive RIC.
30 (h) Transitional provisions relating to the enactment and implementa-
31 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
32 to the contrary contained in this section other than subdivision (m) of
33 this section, a corporation that was in existence before January first,
34 two thousand one and was subject to tax under subchapter two of this
35 chapter for its last taxable year beginning before January first, two
36 thousand one, shall continue to be taxable under subchapter two for all
37 taxable years beginning on or after January first, two thousand one and
38 before January first, two thousand three, provided, however, this shall
39 not apply to any taxable year during which such corporation is a banking
40 corporation described in paragraphs one through eight of subdivision (a)
41 of this section. Notwithstanding anything to the contrary contained in
42 this section other than subdivision (m) of this section, a banking
43 corporation that was in existence before January first, two thousand one
44 and was subject to tax under this subchapter for its last taxable year
45 beginning before January first, two thousand one, shall continue to be
46 taxable under this subchapter for all taxable years beginning on or
47 after January first, two thousand one and before January first, two
48 thousand three. Provided, however, that nothing in this subdivision
49 shall prohibit a corporation that elected pursuant to subdivision (d) of
50 this section to be taxable under subchapter two of this chapter from
51 revoking that election in accordance with subdivision (d) of this
52 section.
53 For purposes of this paragraph, a corporation shall be considered to
54 be subject to tax under subchapter two of this chapter for a taxable
55 year if such corporation was not a taxpayer but was properly included in
56 a combined report filed pursuant to subdivision four of section 11-605
S. 8578 613
1 of this chapter for such taxable year and a corporation shall be consid-
2 ered to be subject to tax under this subchapter for a taxable year if
3 such corporation was not a taxpayer but was properly included in a
4 combined report filed pursuant to subdivision (f) or (g) of section
5 11-646 of this chapter for such taxable year. A corporation that was in
6 existence before January first, two thousand one but first becomes a
7 taxpayer in a taxable year beginning on or after January first, two
8 thousand one and before January first, two thousand three, shall be
9 considered for purposes of this paragraph to have been subject to tax
10 under subchapter two of this chapter for its last taxable year beginning
11 before January first, two thousand one if such corporation would have
12 been subject to tax under such subchapter for such taxable year if it
13 had been a taxpayer during such taxable year. A corporation that was in
14 existence before January first, two thousand one but first becomes a
15 taxpayer in a taxable year beginning on or after January first, two
16 thousand one and before January first, two thousand three, shall be
17 considered for purposes of this paragraph to have been subject to tax
18 under this subchapter for its last taxable year beginning before January
19 first, two thousand one if such corporation would have been subject to
20 tax under this subchapter for such taxable year if it had been a taxpay-
21 er during such taxable year.
22 (2) Notwithstanding anything to the contrary contained in this section
23 other than subdivision (m) of this section, a corporation formed on or
24 after January first, two thousand one and before January first, two
25 thousand three may elect to be subject to tax under this subchapter or
26 under subchapter two of this chapter for its first taxable year begin-
27 ning on or after January first, two thousand one and before January
28 first, two thousand three in which either (i) sixty-five percent or more
29 of its voting stock is owned or controlled, directly or indirectly by a
30 financial holding company, provided the corporation whose voting stock
31 is so owned or controlled is principally engaged in activities that are
32 described in paragraph four or five of subdivision (k) of section four
33 of the federal bank holding company act of nineteen hundred fifty-six,
34 as amended and the regulations promulgated pursuant to the authority of
35 such section or (ii) it is a financial subsidiary. An election under
36 this paragraph may not be made by a corporation described in paragraphs
37 one through eight of subdivision (a) of this section or in subdivision
38 (e) of this section. In addition, an election under this paragraph may
39 not be made by a corporation that is a party to a reorganization, as
40 defined in subsection (a) of section three hundred sixty-eight of the
41 internal revenue code of nineteen hundred eighty-six, as amended, of a
42 corporation described in paragraph one of this subdivision if both
43 corporations were sixty-five percent or more owned or controlled,
44 directly or indirectly by the same interests at the time of the reorgan-
45 ization.
46 An election under this paragraph must be made by the taxpayer on or
47 before the due date for filing its return, determined with regard to
48 extensions of time for filing, for the applicable taxable year. The
49 election to be taxed under subchapter two of this chapter shall be made
50 by the taxpayer by filing the return required pursuant to subdivision
51 one of section 11-605 of this chapter and the election to be taxed under
52 this subchapter shall be made by the taxpayer by filing the return
53 required pursuant to subdivision (a) of section 11-646 of this chapter.
54 Any election made pursuant to this paragraph shall be irrevocable and
55 shall apply to each subsequent taxable year beginning on or after Janu-
56 ary first, two thousand one and before January first, two thousand
S. 8578 614
1 three, provided that the stock ownership requirements described in
2 subparagraph (i) of this paragraph are met or such corporation described
3 in subparagraph (ii) of this paragraph continues as a financial subsid-
4 iary.
5 (3) For purposes of this section, a financial subsidiary means a
6 corporation (i) sixty-five percent or more of whose voting stock is
7 owned or controlled, directly or indirectly by a banking corporation
8 described in paragraph one, two or three of subdivision (a) of this
9 section and (ii) is described in subdivision (g) of section five thou-
10 sand one hundred thirty-six-A of the revised statutes of the United
11 States or section forty-six of the federal deposit insurance act. For
12 purposes of this subchapter, the term "banking corporation" shall
13 include a corporation electing to be taxed under this subchapter pursu-
14 ant to paragraph two of this subdivision for so long as such election
15 shall be in effect.
16 (i) Transitional provisions relating to the enactment and implementa-
17 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
18 to the contrary contained in this section other than subdivision (m) of
19 this section, a corporation that was in existence before January first,
20 two thousand three and was subject to tax under subchapter two of this
21 chapter for its last taxable year beginning before January first, two
22 thousand three, shall continue to be taxable under subchapter two for
23 all taxable years beginning on or after January first, two thousand
24 three and before January first, two thousand four provided, however,
25 this shall not apply to any taxable year during which such corporation
26 is a banking corporation described in paragraphs one through eight of
27 subdivision (a) of this section. Notwithstanding anything to the contra-
28 ry contained in this section other than subdivision (m) of this section,
29 a banking corporation that was in existence before January first, two
30 thousand three and was subject to tax under this subchapter for its last
31 taxable year beginning before January first, two thousand three, shall
32 continue to be taxable under this subchapter for all taxable years
33 beginning on or after January first, two thousand three and before Janu-
34 ary first, two thousand four. Provided, however, that nothing in this
35 subdivision shall prohibit a corporation that elected pursuant to subdi-
36 vision (d) of this section to be taxable under subchapter two of this
37 chapter from revoking that election in accordance with subdivision (d)
38 of this section.
39 For purposes of this paragraph, a corporation shall be considered to
40 be subject to tax under subchapter two of this chapter for a taxable
41 year if such corporation was not a taxpayer but was properly included in
42 a combined report filed pursuant to subdivision four of section 11-605
43 of this chapter for such taxable year and a corporation shall be consid-
44 ered to be subject to tax under this subchapter for a taxable year if
45 such corporation was not a taxpayer but was properly included in a
46 combined report filed pursuant to subdivision (f) or (g) of section
47 11-646 of this chapter for such taxable year. A corporation that was in
48 existence before January first, two thousand three but first becomes a
49 taxpayer in a taxable year beginning on or after January first, two
50 thousand three and before January first, two thousand four, shall be
51 considered for purposes of this paragraph to have been subject to tax
52 under subchapter two of this chapter for its last taxable year beginning
53 before January first, two thousand three if such corporation would have
54 been subject to tax under such subchapter for such taxable year if it
55 had been a taxpayer during such taxable year. A corporation that was in
56 existence before January first, two thousand three but first becomes a
S. 8578 615
1 taxpayer in a taxable year beginning on or after January first, two
2 thousand three and before January first, two thousand four, shall be
3 considered for purposes of this paragraph to have been subject to tax
4 under this subchapter for its last taxable year beginning before January
5 first, two thousand three if such corporation would have been subject to
6 tax under this subchapter for such taxable year if it had been a taxpay-
7 er during such taxable year.
8 (2) Notwithstanding anything to the contrary contained in this section
9 other than subdivision (m) of this section, a corporation formed on or
10 after January first, two thousand three and before January first, two
11 thousand four may elect to be subject to tax under this subchapter or
12 under subchapter two of this chapter for its first taxable year begin-
13 ning on or after January first, two thousand three and before January
14 first, two thousand four in which either (i) sixty-five percent or more
15 of its voting stock is owned or controlled, directly or indirectly by a
16 financial holding company, provided the corporation whose voting stock
17 is so owned or controlled is principally engaged in activities that are
18 described in paragraphs four or five of subdivision (k) of section four
19 of the federal bank holding company act of nineteen hundred fifty-six,
20 as amended and the regulations promulgated pursuant to the authority of
21 such section or (ii) it is a financial subsidiary. An election under
22 this paragraph may not be made by a corporation described in paragraphs
23 one through eight of subdivision (a) of this section or in subdivision
24 (e) of this section. In addition, an election under this paragraph may
25 not be made by a corporation that is a party to a reorganization, as
26 defined in subsection (a) of section three hundred sixty-eight of the
27 internal revenue code of nineteen hundred eighty-six, as amended, of a
28 corporation described in paragraph one of this subdivision if both
29 corporations were sixty-five percent or more owned or controlled,
30 directly or indirectly by the same interests at the time of the reorgan-
31 ization.
32 An election under this paragraph must be made by the taxpayer on or
33 before the due date for filing its return, determined with regard to
34 extensions of time for filing, for the applicable taxable year. The
35 election to be taxed under subchapter two of this chapter shall be made
36 by the taxpayer by filing the return required pursuant to subdivision
37 one of section 11-605 of this chapter and the election to be taxed under
38 this subchapter shall be made by the taxpayer by filing the return
39 required pursuant to subdivision (a) of section 11-646 of this chapter.
40 Any election made pursuant to this paragraph shall be irrevocable and
41 shall apply to each subsequent taxable year beginning on or after Janu-
42 ary first, two thousand three and before January first, two thousand
43 four, provided that the stock ownership requirements described in
44 subparagraph (i) of this paragraph are met or such corporation described
45 in subparagraph (ii) of this paragraph continues as a financial subsid-
46 iary.
47 (3) For purposes of this section, a financial subsidiary means a
48 corporation (i) sixty-five percent or more of whose voting stock is
49 owned or controlled, directly or indirectly by a banking corporation
50 described in paragraph one, two or three of subdivision (a) of this
51 section and (ii) is described in subdivision (g) of section five thou-
52 sand one hundred thirty-six-A of the revised statutes of the United
53 States or section forty-six of the federal deposit insurance act. For
54 purposes of this subchapter, the term "banking corporation" shall
55 include a corporation electing to be taxed under this subchapter pursu-
S. 8578 616
1 ant to paragraph two of this subdivision for so long as such election
2 shall be in effect.
3 (j) Transitional provisions relating to the enactment and implementa-
4 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
5 to the contrary contained in this section other than subdivision (m) of
6 this section, a corporation that was in existence before January first,
7 two thousand four and was subject to tax under subchapter two of this
8 chapter for its last taxable year beginning before January first, two
9 thousand four, shall continue to be taxable under subchapter two for all
10 taxable years beginning on or after January first, two thousand four and
11 before January first, two thousand six. The preceding sentence shall not
12 apply to any taxable year during which such corporation is a banking
13 corporation described in paragraphs one through eight of subdivision (a)
14 of this section. Notwithstanding anything to the contrary contained in
15 this section other than subdivision (m) of this section, a banking
16 corporation that was in existence before January first, two thousand
17 four and was subject to tax under this subchapter for its last taxable
18 year beginning before January first, two thousand four, shall continue
19 to be taxable under this subchapter for all taxable years beginning on
20 or after January first, two thousand four and before January first, two
21 thousand six. Provided, however, that nothing in this subdivision shall
22 prohibit a corporation that elected pursuant to subdivision (d) of this
23 section to be taxable under subchapter two of this chapter from revoking
24 that election in accordance with subdivision (d) of this section.
25 For purposes of this paragraph, a corporation shall be considered to
26 be subject to tax under subchapter two of this chapter for a taxable
27 year if such corporation was not a taxpayer but was properly included in
28 a combined report filed pursuant to subdivision four of section 11-605
29 of this chapter for such taxable year and a corporation shall be consid-
30 ered to be subject to tax under this subchapter for a taxable year if
31 such corporation was not a taxpayer but was properly included in a
32 combined report filed pursuant to subdivision (f) or (g) of section
33 11-646 of this chapter for such taxable year. A corporation that was in
34 existence before January first, two thousand four but first becomes a
35 taxpayer in a taxable year beginning on or after January first, two
36 thousand four and before January first, two thousand six, shall be
37 considered for purposes of this paragraph to have been subject to tax
38 under subchapter two of this chapter for its last taxable year beginning
39 before January first, two thousand four if such corporation would have
40 been subject to tax under such subchapter for such taxable year if it
41 had been a taxpayer during such taxable year. A corporation that was in
42 existence before January first, two thousand four but first becomes a
43 taxpayer in a taxable year beginning on or after January first, two
44 thousand four and before January first, two thousand six, shall be
45 considered for purposes of this paragraph to have been subject to tax
46 under this subchapter for its last taxable year beginning before January
47 first, two thousand four if such corporation would have been subject to
48 tax under this subchapter for such taxable year if it had been a taxpay-
49 er during such taxable year.
50 (2) Notwithstanding anything to the contrary contained in this section
51 other than subdivision (m) of this section, a corporation formed on or
52 after January first, two thousand four and before January first, two
53 thousand six may elect to be subject to tax under this subchapter or
54 under subchapter two of this chapter for its first taxable year begin-
55 ning on or after January first, two thousand four and before January
56 first, two thousand six in which either (i) sixty-five percent or more
S. 8578 617
1 of its voting stock is owned or controlled, directly or indirectly by a
2 financial holding company, provided the corporation whose voting stock
3 is so owned or controlled is principally engaged in activities that are
4 described in paragraph four or five of subdivision (k) of section four
5 of the federal bank holding company act of nineteen hundred fifty-six,
6 as amended and the regulations promulgated pursuant to the authority of
7 such section or (ii) it is a financial subsidiary. An election under
8 this paragraph may not be made by a corporation described in paragraphs
9 one through eight of subdivision (a) of this section or in subdivision
10 (e) of this section. In addition, an election under this paragraph may
11 not be made by a corporation that is a party to a reorganization, as
12 defined in subsection (a) of section three hundred sixty-eight of the
13 internal revenue code of nineteen hundred eighty-six, as amended, of a
14 corporation described in paragraph one of this subdivision if both
15 corporations were sixty-five percent or more owned or controlled,
16 directly or indirectly by the same interests at the time of the reorgan-
17 ization.
18 An election under this paragraph must be made by the taxpayer on or
19 before the due date for filing its return, determined with regard to
20 extensions of time for filing, for the applicable taxable year. The
21 election to be taxed under subchapter two of this chapter shall be made
22 by the taxpayer by filing the return required pursuant to subdivision
23 one of section 11-605 of this chapter and the election to be taxed under
24 this subchapter shall be made by the taxpayer by filing the return
25 required pursuant to subdivision (a) of section 11-646 of this chapter.
26 Any election made pursuant to this paragraph shall be irrevocable and
27 shall apply to each subsequent taxable year beginning on or after Janu-
28 ary first, two thousand four and before January first, two thousand six,
29 provided that the stock ownership requirements described in subparagraph
30 (i) of this paragraph are met or such corporation described in subpara-
31 graph (ii) of this paragraph continues as a financial subsidiary.
32 (3) For purposes of this section, a financial subsidiary means a
33 corporation (i) sixty-five percent or more of whose voting stock is
34 owned or controlled, directly or indirectly by a banking corporation
35 described in paragraph one, two or three of subdivision (a) of this
36 section and (ii) is described in subdivision (g) of section five thou-
37 sand one hundred thirty-six-A of the revised statutes of the United
38 States or section forty-six of the federal deposit insurance act. For
39 purposes of this subchapter, the term "banking corporation" shall
40 include a corporation electing to be taxed under this subchapter pursu-
41 ant to paragraph two of this subdivision for so long as such election
42 shall be in effect.
43 (k) Transitional provisions relating to the enactment and implementa-
44 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
45 to the contrary contained in this section other than subdivision (m) of
46 this section, a corporation that was in existence before January first,
47 two thousand six and was subject to tax under subchapter two of this
48 chapter for its last taxable year beginning before January first, two
49 thousand six, shall continue to be taxable under subchapter two of this
50 chapter for all taxable years beginning on or after January first, two
51 thousand six and before January first, two thousand eight, provided,
52 however, this shall not apply to any taxable year during which such
53 corporation is a banking corporation described in paragraphs one through
54 eight of subdivision (a) of this section. Notwithstanding anything to
55 the contrary contained in this section other than subdivision (m) of
56 this section, a banking corporation that was in existence before January
S. 8578 618
1 first, two thousand six and was subject to tax under this subchapter for
2 its last taxable year beginning before January first, two thousand six,
3 shall continue to be taxable under this subchapter for all taxable years
4 beginning on or after January first, two thousand six and before January
5 first, two thousand eight. Provided, however, that nothing in this
6 subdivision shall prohibit a corporation that elected pursuant to subdi-
7 vision (d) of this section to be taxable under subchapter two of this
8 chapter from revoking that election in accordance with subdivision (d)
9 of this section.
10 For purposes of this paragraph, a corporation shall be considered to
11 be subject to tax under subchapter two of this chapter for a taxable
12 year if such corporation was not a taxpayer but was properly included in
13 a combined report filed pursuant to subdivision four of section 11-605
14 of this chapter for such taxable year and a corporation shall be consid-
15 ered to be subject to tax under this subchapter for a taxable year if
16 such corporation was not a taxpayer but was properly included in a
17 combined report filed pursuant to subdivision (f) or (g) of section
18 11-646 of this part for such taxable year. A corporation that was in
19 existence before January first, two thousand six but first becomes a
20 taxpayer in a taxable year beginning on or after January first, two
21 thousand six and before January first, two thousand eight, shall be
22 considered for purposes of this paragraph to have been subject to tax
23 under subchapter two of this chapter for its last taxable year beginning
24 before January first, two thousand six if such corporation would have
25 been subject to tax under such subchapter for such taxable year if it
26 had been a taxpayer during such taxable year. A corporation that was in
27 existence before January first, two thousand six but first becomes a
28 taxpayer in a taxable year beginning on or after January first, two
29 thousand six and before January first, two thousand eight, shall be
30 considered for purposes of this paragraph to have been subject to tax
31 under this subchapter for its last taxable year beginning before January
32 first, two thousand six if such corporation would have been subject to
33 tax under this subchapter for such taxable year if it had been a taxpay-
34 er during such taxable year.
35 (2) Notwithstanding anything to the contrary contained in this section
36 other than subdivision (m) of this section, a corporation formed on or
37 after January first, two thousand six and before January first, two
38 thousand eight may elect to be subject to tax under this subchapter or
39 under subchapter two of this chapter for its first taxable year begin-
40 ning on or after January first, two thousand six and before January
41 first, two thousand eight in which either (i) sixty-five percent or more
42 of its voting stock is owned or controlled, directly or indirectly by a
43 financial holding company, provided the corporation whose voting stock
44 is so owned or controlled is principally engaged in activities that are
45 described in paragraph four or five of subdivision (k) of section four
46 of the federal bank holding company act of nineteen hundred fifty-six,
47 as amended and the regulations promulgated pursuant to the authority of
48 such section or (ii) it is a financial subsidiary. An election under
49 this paragraph may not be made by a corporation described in paragraphs
50 one through eight of subdivision (a) of this section or in subdivision
51 (e) of this section. In addition, an election under this paragraph may
52 not be made by a corporation that is a party to a reorganization, as
53 defined in subsection (a) of section three hundred sixty-eight of the
54 internal revenue code of nineteen hundred eighty-six, as amended, of a
55 corporation described in paragraph one of this subdivision if both
56 corporations were sixty-five percent or more owned or controlled,
S. 8578 619
1 directly or indirectly by the same interests at the time of the reorgan-
2 ization.
3 An election under this paragraph must be made by the taxpayer on or
4 before the due date for filing its return, determined with regard to
5 extensions of time for filing, for the applicable taxable year. The
6 election to be taxed under subchapter two of this chapter shall be made
7 by the taxpayer by filing the return required pursuant to subdivision
8 one of section 11-605 of this chapter and the election to be taxed under
9 this subchapter shall be made by the taxpayer by filing the return
10 required pursuant to subdivision (a) of section 11-646 of this part. Any
11 election made pursuant to this paragraph shall be irrevocable and shall
12 apply to each subsequent taxable year beginning on or after January
13 first, two thousand six and before January first, two thousand eight,
14 provided that the stock ownership requirements described in subparagraph
15 (i) of this paragraph are met or such corporation described in subpara-
16 graph (ii) of this paragraph continues as a financial subsidiary.
17 (3) For purposes of this section, a financial subsidiary means a
18 corporation (i) sixty-five percent or more of whose voting stock is
19 owned or controlled, directly or indirectly by a banking corporation
20 described in paragraph one, two or three of subdivision (a) of this
21 section and (ii) is described in subdivision (g) of section five thou-
22 sand one hundred thirty-six-A of the revised statutes of the United
23 States or section forty-six of the federal deposit insurance act. For
24 purposes of this subchapter, the term "banking corporation" shall
25 include a corporation electing to be taxed under this subchapter pursu-
26 ant to paragraph two of this subdivision for so long as such election
27 shall be in effect.
28 (l) Transitional provisions relating to the enactment and implementa-
29 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
30 to the contrary contained in this section other than subdivision (m) of
31 this section, a corporation that was in existence before January first,
32 two thousand fourteen and was subject to tax under subchapter two of
33 this chapter for its last taxable year beginning before January first,
34 two thousand fourteen, shall continue to be taxable under such subchap-
35 ter for all taxable years beginning on or after January first, two thou-
36 sand fourteen and before January first, two thousand seventeen,
37 provided, however, this shall not apply to any taxable year during which
38 such corporation is a banking corporation described in paragraphs one
39 through eight of subdivision (a) of this section. Notwithstanding
40 anything to the contrary contained in this section other than subdivi-
41 sion (m) of this section, a banking corporation or corporation that was
42 in existence before January first, two thousand fourteen and was subject
43 to tax under this subchapter for its last taxable year beginning before
44 January first, two thousand fourteen, shall continue to be taxable under
45 this subchapter for all taxable years beginning on or after January
46 first, two thousand fourteen and before January first, two thousand
47 seventeen only if the corporation is a banking corporation as defined in
48 subdivision (a) of this section or the corporation satisfies the
49 requirements for a corporation to elect to be taxable under this
50 subchapter. Provided further, that nothing in this subdivision shall
51 prohibit a corporation that elected pursuant to subdivision (d) of this
52 section to be taxable under subchapter two of this chapter from revoking
53 that election in accordance with subdivision (d) of this section. For
54 purposes of this paragraph, a corporation shall be considered to be
55 subject to tax under subchapter two of this chapter for a taxable year
56 if such corporation was not a taxpayer but was properly included in a
S. 8578 620
1 combined report filed pursuant to subdivision four of section 11-605 of
2 this chapter for such taxable year and a corporation shall be considered
3 to be subject to tax under this subchapter for a taxable year if such
4 corporation was not a taxpayer but was properly included in a combined
5 report filed pursuant to subdivision (f) or (g) of section 11-646 of
6 this part for such taxable year. A corporation that was in existence
7 before January first, two thousand fourteen but first becomes a taxpayer
8 in a taxable year beginning on or after January first, two thousand
9 fourteen and before January first, two thousand seventeen, shall be
10 considered for purposes of this paragraph to have been subject to tax
11 under subchapter two of this chapter for its last taxable year beginning
12 before January first, two thousand fourteen if such corporation would
13 have been subject to tax under such subchapter for such taxable year if
14 it had been a taxpayer during such taxable year. A corporation that was
15 in existence before January first, two thousand fourteen but first
16 becomes a taxpayer in a taxable year beginning on or after January
17 first, two thousand fourteen and before January first, two thousand
18 seventeen, shall be considered for purposes of this paragraph to have
19 been subject to tax under this subchapter for its last taxable year
20 beginning before January first, two thousand fourteen if such corpo-
21 ration would have been subject to tax under this subchapter for such
22 taxable year if it had been a taxpayer during such taxable year.
23 (2) Notwithstanding anything to the contrary contained in this section
24 other than subdivision (m) of this section, a corporation formed on or
25 after January first, two thousand fourteen and before January first, two
26 thousand seventeen may elect to be subject to tax under this subchapter
27 or under subchapter two of this chapter for its first taxable year
28 beginning on or after January first, two thousand fourteen and before
29 January first, two thousand seventeen in which either (i) sixty-five
30 percent or more of its voting stock is owned or controlled, directly or
31 indirectly by a financial holding company, provided the corporation
32 whose voting stock is so owned or controlled is principally engaged in
33 activities that are described in paragraph four or five of subdivision
34 (k) of section four of the federal bank holding company act of nineteen
35 hundred fifty-six, as amended and the regulations promulgated pursuant
36 to the authority of such section or (ii) it is a financial subsidiary.
37 An election under this paragraph may not be made by a corporation
38 described in paragraphs one through eight of subdivision (a) of this
39 section or in subdivision (e) of this section. In addition, an election
40 under this paragraph may not be made by a corporation that is a party to
41 a reorganization, as defined in subsection (a) of section three hundred
42 sixty-eight of the internal revenue code of nineteen hundred eighty-six,
43 as amended, of a corporation described in paragraph one of this subdivi-
44 sion if both corporations were sixty-five percent or more owned or
45 controlled, directly or indirectly by the same interests at the time of
46 the reorganization.
47 An election under this paragraph must be made by the taxpayer on or
48 before the due date for filing its return, determined with regard to
49 extensions of time for filing, for the applicable taxable year. The
50 election to be taxed under subchapter two of this chapter shall be made
51 by the taxpayer by filing the return required pursuant to subdivision
52 one of section 11-605 of this chapter and the election to be taxed under
53 this subchapter shall be made by the taxpayer by filing the return
54 required pursuant to subdivision (a) of section 11-646 of this part. Any
55 election made pursuant to this paragraph shall be irrevocable and shall
56 apply to each subsequent taxable year beginning on or after January
S. 8578 621
1 first, two thousand fourteen and before January first, two thousand
2 seventeen, provided that the stock ownership and activities requirements
3 described in subparagraph (i) of this paragraph are met or such corpo-
4 ration described in subparagraph (ii) of this paragraph continues as a
5 financial subsidiary.
6 (3) For purposes of this section, a financial subsidiary means a
7 corporation (i) sixty-five percent or more of whose voting stock is
8 owned or controlled, directly or indirectly by a banking corporation
9 described in paragraph one, two or three of subdivision (a) of this
10 section and (ii) is described in subdivision (g) of section five thou-
11 sand one hundred thirty-six-A of the revised statutes of the United
12 States or section forty-six of the federal deposit insurance act. For
13 purposes of this subchapter, the term "banking corporation" shall
14 include a corporation electing to be taxed under this subchapter pursu-
15 ant to paragraph two of this subdivision for so long as such election
16 shall be in effect.
17 (m) (1) Notwithstanding anything in this part to the contrary, if any
18 of the conditions described in paragraph three of this subdivision apply
19 to a corporation that has made either the election to be taxable under
20 subchapter two of chapter six of this title pursuant to the Gramm-Leach-
21 Bliley transitional provisions in this section, or the election pursuant
22 to subdivision (d) of this section to continue to be taxable under
23 subchapter two of chapter six of this title, hereinafter the "electing
24 corporation", then such corporation shall be deemed to have revoked the
25 election as of the first day of the taxable year in which such condition
26 applied.
27 (2) Notwithstanding anything in this part to the contrary, if any of
28 the conditions described in paragraph three of this subdivision apply to
29 a corporation required to be taxable under subchapter two of chapter six
30 of this title pursuant to the Gramm-Leach-Bliley transitional provisions
31 in this section, hereinafter the "grandfathered corporation", such
32 corporation, if it is otherwise described in subdivision (a) of this
33 section, shall be taxable under this part as of the first day of the
34 taxable year in which such condition applied.
35 (3) The provisions of paragraph one and paragraph two of this subdivi-
36 sion shall apply if any of the following conditions exist or occur with
37 respect to the electing corporation or the grandfathered corporation in
38 a taxable year, including any short taxable year, beginning on or after
39 January first, two thousand nine:
40 (A) the corporation ceases to be a taxpayer under subchapter two of
41 chapter six of this title;
42 (B) the corporation becomes subject to the fixed dollar minimum tax
43 under clause four of subparagraph a of paragraph (E) of subdivision one
44 of section 11-604 of this chapter;
45 (C) the corporation has no wages or receipts allocable to the city
46 pursuant to subdivision three of section 11-604 of this chapter, or is
47 otherwise inactive; provided that this subparagraph shall not apply to a
48 corporation which is engaged in the active conduct of a trade or busi-
49 ness, or substantially all of the assets of which are stock and securi-
50 ties of corporations which are directly or indirectly controlled by it
51 and are engaged in the active conduct of a trade or business;
52 (D) sixty-five percent or more of the voting stock of the corporation
53 becomes owned or controlled directly by a corporation that acquired the
54 stock in a transaction, or series of related transactions, that quali-
55 fies as a purchase within the meaning of paragraph three of subsection
56 (h) of section three hundred thirty-eight of the internal revenue code
S. 8578 622
1 unless the corporation whose stock was acquired and the corporation
2 acquiring the stock were, immediately prior to such purchase, members of
3 the same affiliated group, as such term is defined in section fifteen
4 hundred four of the internal revenue code without regard to the exclu-
5 sions provided for in subsection (b) of such section; or
6 (E) the corporation, in a transaction or series of related trans-
7 actions, acquires assets, whether by contribution, purchase, or other-
8 wise, having an average value, determined in accordance with subdivision
9 two of section 11-604 of this chapter, or, if greater, a total tax
10 basis, in excess of forty percent of the average value, or, if greater,
11 the total tax basis, of all the assets of the corporation immediately
12 prior to such acquisition and as a result of such acquisition the corpo-
13 ration is principally engaged in a business that is different from the
14 business immediately prior to such acquisition, provided that such
15 different business is described in subparagraph (i) or (ii) of paragraph
16 nine of subdivision (a) of this section.
17 (n) Transitional provisions relating to the enactment and implementa-
18 tion of the federal Gramm-Leach-Bliley act. (1) Notwithstanding anything
19 to the contrary contained in this section other than subdivision (m) of
20 this section, a corporation that was in existence before January first,
21 two thousand seventeen and was subject to tax under subchapter two of
22 this chapter for its last taxable year beginning before January first,
23 two thousand seventeen, shall continue to be taxable under such subchap-
24 ter for all taxable years beginning on or after January first, two thou-
25 sand seventeen and before January first, two thousand twenty, provided,
26 however, this shall not apply to any taxable year during which such
27 corporation is a banking corporation described in paragraphs one through
28 eight of subdivision (a) of this section. Notwithstanding anything to
29 the contrary contained in this section other than subdivision (m) of
30 this section, a banking corporation or corporation that was in existence
31 before January first, two thousand seventeen and was subject to tax
32 under this subchapter for its last taxable year beginning before January
33 first, two thousand seventeen, shall continue to be taxable under this
34 subchapter for all taxable years beginning on or after January first,
35 two thousand seventeen and before January first, two thousand twenty
36 only if the corporation is a banking corporation as defined in subdivi-
37 sion (a) of this section or the corporation satisfies the requirements
38 for a corporation to elect to be taxable under this subchapter. Provided
39 further, that nothing in this subdivision shall prohibit a corporation
40 that elected pursuant to subdivision (d) of this section to be taxable
41 under subchapter two of this chapter from revoking that election in
42 accordance with subdivision (d) of this section.
43 For purposes of this paragraph, a corporation shall be considered to
44 be subject to tax under subchapter two of this chapter for a taxable
45 year if such corporation was not a taxpayer but was properly included in
46 a combined report filed pursuant to subdivision four of section 11-605
47 of this chapter for such taxable year and a corporation shall be consid-
48 ered to be subject to tax under this subchapter for a taxable year if
49 such corporation was not a taxpayer but was properly included in a
50 combined report filed pursuant to subdivision (f) or (g) of section
51 11-646 of this part for such taxable year. A corporation that was in
52 existence before January first, two thousand seventeen but first becomes
53 a taxpayer in a taxable year beginning on or after January first, two
54 thousand seventeen and before January first, two thousand twenty, shall
55 be considered for purposes of this paragraph to have been subject to tax
56 under subchapter two of this chapter for its last taxable year beginning
S. 8578 623
1 before January first, two thousand seventeen if such corporation would
2 have been subject to tax under such subchapter for such taxable year if
3 it had been a taxpayer during such taxable year. A corporation that was
4 in existence before January first, two thousand seventeen but first
5 becomes a taxpayer in a taxable year beginning on or after January
6 first, two thousand seventeen and before January first, two thousand
7 twenty, shall be considered for purposes of this paragraph to have been
8 subject to tax under this subchapter for its last taxable year beginning
9 before January first, two thousand seventeen if such corporation would
10 have been subject to tax under this subchapter for such taxable year if
11 it had been a taxpayer during such taxable year.
12 (2) Notwithstanding anything to the contrary contained in this section
13 other than subdivision (m) of this section, a corporation formed on or
14 after January first, two thousand seventeen and before January first,
15 two thousand twenty may elect to be subject to tax under this subchapter
16 or under subchapter two of this chapter for its first taxable year
17 beginning on or after January first, two thousand seventeen and before
18 January first, two thousand twenty in which either (i) sixty-five
19 percent or more of its voting stock is owned or controlled, directly or
20 indirectly by a financial holding company, provided the corporation
21 whose voting stock is so owned or controlled is principally engaged in
22 activities that are described in paragraphs four or five of subdivision
23 (k) of section four of the federal bank holding company act of nineteen
24 hundred fifty-six, as amended, and the regulations promulgated pursuant
25 to the authority of such section or (ii) it is a financial subsidiary.
26 An election under this paragraph may not be made by a corporation
27 described in paragraphs one through eight of subdivision (a) of this
28 section or in subdivision (e) of this section. In addition, an election
29 under this paragraph may not be made by a corporation that is a party to
30 a reorganization, as defined in subsection (a) of section three hundred
31 sixty-eight of the internal revenue code of nineteen hundred eighty-six,
32 as amended, of a corporation described in paragraph one of this subdivi-
33 sion if both corporations were sixty-five percent or more owned or
34 controlled, directly or indirectly, by the same interests at the time of
35 the reorganization.
36 An election under this paragraph shall be made by the taxpayer on or
37 before the due date for filing its return, determined with regard to
38 extensions of time for filing, for the applicable taxable year. The
39 election to be taxed under subchapter two of this chapter shall be made
40 by the taxpayer by filing the return required pursuant to subdivision
41 one of section 11-605 of this chapter and the election to be taxed under
42 this subchapter shall be made by the taxpayer by filing the return
43 required pursuant to subdivision (a) of section 11-646 of this part. Any
44 election made pursuant to this paragraph shall be irrevocable and shall
45 apply to each subsequent taxable year beginning on or after January
46 first, two thousand seventeen and before January first, two thousand
47 twenty, provided that the stock ownership and activities requirements
48 described in subparagraph (i) of this paragraph are met or such corpo-
49 ration described in subparagraph (ii) of this paragraph continues as a
50 financial subsidiary.
51 (3) For purposes of this subdivision, a financial subsidiary means a
52 corporation (i) sixty-five percent or more of whose voting stock is
53 owned or controlled, directly or indirectly by a banking corporation
54 described in paragraph one, two or three of subdivision (a) of this
55 section and (ii) is described in subdivision (g) of section five thou-
56 sand one hundred thirty-six-A of the revised statutes of the United
S. 8578 624
1 States or section forty-six of the federal deposit insurance act. For
2 purposes of this subchapter, the term "banking corporation" shall
3 include a corporation electing to be taxed under this subchapter pursu-
4 ant to paragraph two of this subdivision for so long as such election
5 shall be in effect.
6 § 11-641 Computations of entire net income. (a) Entire net income
7 means total net income from all sources which shall be the same as the
8 entire taxable income, but not alternative minimum taxable income,
9 (1) which the taxpayer is required to report to the United States
10 treasury department, or
11 (2) which the taxpayer, in the case of a corporation which is exempt
12 from federal income tax, other than the tax on unrelated business taxa-
13 ble income imposed under section five hundred eleven of the internal
14 revenue code, but which is subject to tax under this part, would have
15 been required to report to the United States treasury department but for
16 such exemption, or
17 (3) which, in the case of a corporation organized under the laws of a
18 country other than the United States, is effectively connected with the
19 conduct of a trade or business within the United States as determined
20 under section eight hundred eighty-two of the internal revenue code, or
21 (4) which the taxpayer would have been required to report to the
22 United States treasury department if the taxpayer had not elected to be
23 taxed under subchapter s of chapter one of the internal revenue code, or
24 (5) which the taxpayer would have been required to report to the
25 United States treasury department if no election had been made to treat
26 the taxpayer as a qualified subchapter s subsidiary under paragraph
27 three of subsection (b) of section thirteen hundred sixty-one of the
28 internal revenue code, subject to the modifications and adjustments
29 provided in this section.
30 (b) Entire net income shall be computed without the deduction or
31 exclusion of:
32 (1) (A) in the case of a corporation organized under the laws of a
33 country other than the United States, (i) any part of any income from
34 dividends or interest on any kind of stock, securities or indebtedness,
35 but only if such income is treated as effectively connected with the
36 conduct of a trade or business in the United States pursuant to section
37 eight hundred sixty-four of the internal revenue code, (ii) any income
38 exempt from federal taxable income under any treaty obligation of the
39 United States, but only if such income would be treated as effectively
40 connected in the absence of such exemption, provided that such treaty
41 obligation does not preclude the taxation of such income by a state, or
42 (iii) any income which would be treated as effectively connected if such
43 income were not excluded from gross income pursuant to subsection (a) of
44 section one hundred three of the internal revenue code; (B) in the case
45 of any other corporation, any part of any income from dividends or
46 interest on any kind of stock, securities or indebtedness; (C) except
47 that for purposes of subparagraphs (A) and (B) of this paragraph there
48 shall be excluded any amounts treated as dividends pursuant to section
49 seventy-eight of the internal revenue code and any amounts described in
50 paragraphs eleven and twelve of subdivision (e) of this section;
51 (2) taxes on or measured by income or profits paid or accrued within
52 the taxable year to the United States, or any of its possessions or to
53 any foreign country, taxes on or measured by income or profits paid or
54 accrued to the state or any subdivision thereof, including taxes imposed
55 under article nine, nine-A, thirteen-A, twenty-four-A, twenty-four-B of
56 the tax law, or under article thirty-two of the tax law as such article
S. 8578 625
1 was in effect on December thirty-first, two thousand fourteen and any
2 tax imposed under this part or subchapter two or three-A of this chap-
3 ter;
4 (4) for taxable years beginning after December thirty-first, nineteen
5 hundred eighty-one, except with respect to property which is a qualified
6 mass commuting vehicle described in subparagraph (D) of paragraph eight
7 of subsection (f) of section one hundred sixty-eight of the internal
8 revenue code, relating to qualified mass commuting vehicles, any amount
9 which the taxpayer claimed as a deduction in computing its federal taxa-
10 ble income solely as a result of an election made pursuant to the
11 provisions of such paragraph eight as it was in effect for agreements
12 entered into prior to January first, nineteen hundred eighty-four;
13 (5) for taxable years beginning after December thirty-first, nineteen
14 hundred eighty-one, except with respect to property which is a qualified
15 mass commuting vehicle described in subparagraph (D) of paragraph eight
16 of subsection (f) of section one hundred sixty-eight of the internal
17 revenue code, relating to qualified mass commuting vehicles, any amount
18 which the taxpayer would have been required to include in the computa-
19 tion of its federal taxable income had it not made the election permit-
20 ted pursuant to such paragraph eight as it was in effect for agreements
21 entered into prior to January first, nineteen hundred eighty-four;
22 (6) in the case of property placed in service in taxable years begin-
23 ning before nineteen hundred ninety-four, for taxable years beginning
24 after December thirty-first, nineteen hundred eighty-one, except with
25 respect to property subject to the provisions of section two hundred
26 eighty-F of the internal revenue code and property subject to the
27 provisions of section one hundred sixty-eight of the internal revenue
28 code which is placed in service in this state in taxable years beginning
29 after December thirty-first, nineteen hundred eighty-four, the amount
30 allowable as a deduction determined under section one hundred sixty-
31 eight of the internal revenue code;
32 (7) upon the disposition of property to which paragraph seven of
33 subdivision (e) of this section applies, the amount, if any, by which
34 the aggregate of the amounts described in such paragraph seven attribut-
35 able to such property exceeds the aggregate of the amounts described in
36 paragraph six of this subdivision attributable to such property;
37 (11) for taxable years beginning before January first, two thousand
38 ten, in the case of a taxpayer subject to the provisions of subdivision
39 (c) of section five hundred eighty-five of the internal revenue code,
40 the amount allowed as a deduction pursuant to section one hundred
41 sixty-six of such code; and
42 (12) for taxable years beginning before January first, two thousand
43 ten, for taxpayers subject to the provisions of subdivision (i) of this
44 section, twenty percent of the excess of (A) the amount determined
45 pursuant to such subdivision (i) over (B) the amount which would have
46 been allowable had such institution maintained its bad debt reserve for
47 all taxable years on the basis of actual experience.
48 (13) for taxable years ending after September tenth, two thousand one,
49 in the case of qualified property described in paragraph two of
50 subsection k of section one hundred sixty-eight of the internal revenue
51 code, other than qualified resurgence zone property defined in subdivi-
52 sion (p) of this section, and other than qualified New York Liberty Zone
53 property described in paragraph two of subsection b of section fourteen
54 hundred-L of the internal revenue code, without regard to clause (i) of
55 subparagraph (C) of such paragraph, the amount allowable as a deduction
56 under section one hundred sixty-seven of the internal revenue code.
S. 8578 626
1 (14) for taxable years beginning on or after January first, two thou-
2 sand four, in the case of a taxpayer that is not an eligible farmer as
3 defined in subsection (n) of section six hundred six of the tax law, the
4 amount allowable as a deduction under sections one hundred seventy-nine,
5 one hundred sixty-seven and one hundred sixty-eight of the internal
6 revenue code with respect to a sport utility vehicle that is not a
7 passenger automobile as defined in paragraph five of subsection (d) of
8 section two hundred eighty-F of the internal revenue code.
9 (15) The amount of any deduction allowed pursuant to section one
10 hundred ninety-nine of the internal revenue code.
11 (16) The amount of any federal deduction for taxes imposed under arti-
12 cle twenty-three of the tax law.
13 (17) For taxable years beginning in two thousand nineteen and two
14 thousand twenty, the amount of the increase in the federal interest
15 deduction allowed pursuant to paragraph ten of subdivision (j) of
16 section one hundred sixty-three of the internal revenue code.
17 (c)(1) Except as otherwise provided in paragraphs two and three of
18 this subdivision, in the case of the sale or exchange of property by a
19 taxpayer which has been subject to part one or two of this subchapter
20 three where the property has a higher adjusted basis for city tax
21 purposes than for federal tax purposes, there shall be allowed as a
22 deduction from entire net income, the portion of any gain or loss on
23 such sale which equals the difference in such basis.
24 (2) In case of property of a taxpayer, other than a savings bank,
25 acquired prior to January first, nineteen hundred sixty-six, and
26 disposed of thereafter, the computation of entire net income shall be
27 modified as follows:
28 (i) no gain shall be deemed to have been derived if either the cost or
29 the fair market price or value on January first, nineteen hundred
30 sixty-six, exceeds the value realized;
31 (ii) no loss shall be deemed to have been sustained if either the cost
32 or the fair market price or value on January first, nineteen hundred
33 sixty-six, is less than the value realized;
34 (iii) where both the cost and the fair market price or value on Janu-
35 ary first, nineteen hundred sixty-six, are less than the value realized,
36 the basis for computing gain shall be the cost or the fair market price
37 or value on such date, whichever is higher;
38 (iv) where both the cost and the fair market price or value on January
39 first, nineteen hundred sixty-six, are in excess of the value realized,
40 the basis for computing loss shall be the cost or the fair market price
41 or value on such date, whichever is lower.
42 (3) In case of property of a savings bank acquired prior to January
43 first, nineteen hundred sixty-six, and disposed of thereafter, in
44 computing entire net income the basis of such property shall be the fair
45 market price or value on January first, nineteen hundred sixty-six.
46 (d) Entire net income shall not include any refund or credit of a tax
47 for which no exclusion or deduction was allowed in determining the
48 taxpayer's entire net income under this subchapter or subchapter two of
49 this chapter, or imposed by article twenty-three of the tax law for any
50 prior year.
51 (e) There shall be allowed as a deduction in determining entire net
52 income, to the extent not deductible in determining federal taxable
53 income:
54 (1) interest on indebtedness incurred or continued to purchase or
55 carry obligations or securities the income from which is subject to tax
56 under this part but exempt from federal income tax,
S. 8578 627
1 (2) ordinary and necessary expenses paid or incurred during the taxa-
2 ble year attributable to income which is subject to tax under this part
3 but exempt from federal income tax,
4 (3) the amortizable bond premium for the taxable year on any bond the
5 interest on which is subject to tax under this part but exempt from
6 federal income tax,
7 (4) that portion of wages or salaries paid or incurred for the taxable
8 year for which a deduction is not allowed pursuant to the provisions of
9 section two hundred eighty-C of the internal revenue code,
10 (5) for taxable years beginning after December thirty-first, nineteen
11 hundred eighty-one, except with respect to property which is a qualified
12 mass commuting vehicle described in subparagraph (D) of paragraph eight
13 of subsection (f) of section one hundred sixty-eight of the internal
14 revenue code, relating to qualified mass commuting vehicles, any amount
15 which is included in the taxpayer's federal taxable income solely as a
16 result of an election made pursuant to the provisions of such paragraph
17 eight as it was in effect for agreements entered into prior to January
18 first, nineteen hundred eighty-four,
19 (6) for taxable years beginning after December thirty-first, nineteen
20 hundred eighty-one, except with respect to property which is a qualified
21 mass commuting vehicle described in subparagraph (D) of paragraph eight
22 of subsection (f) of section one hundred sixty-eight of the internal
23 revenue code, relating to qualified mass commuting vehicles, any amount
24 which the taxpayer could have excluded from federal taxable income had
25 it not made the election provided for in such paragraph eight as it was
26 in effect for agreements entered into prior to January first, nineteen
27 hundred eighty-four,
28 (7) in the case of property placed in service in taxable years begin-
29 ning before nineteen hundred ninety-four, for taxable years beginning
30 after December thirty-first, nineteen hundred eighty-one, except with
31 respect to property subject to the provisions of section two hundred
32 eighty-F of the internal revenue code and property subject to the
33 provisions of section one hundred sixty-eight of the internal revenue
34 code which is placed in service in this state in taxable years beginning
35 after December thirty-first, nineteen hundred eighty-four, and provided
36 a deduction has not been excluded from entire net income pursuant to
37 paragraph four of subdivision (b) of this section, an amount with
38 respect to property which is subject to the provisions of section one
39 hundred sixty-eight of the internal revenue code equal to the amount
40 allowable as the depreciation deduction under section one hundred
41 sixty-seven of the internal revenue code as such section would have
42 applied to property placed in service on December thirty-first, nineteen
43 hundred eighty,
44 (8) upon the disposition of property to which paragraph seven of this
45 subdivision applies, the amount, if any, by which the aggregate of the
46 amounts described in paragraph six of subdivision (b) of this section
47 attributable to such property exceeds the aggregate of the amounts
48 described in paragraph seven of this subdivision attributable to such
49 property,
50 (9) any amount of money or other property received from the federal
51 deposit insurance corporation pursuant to subsection (c) of section
52 thirteen of the federal deposit insurance act, as amended, regardless of
53 whether any note or other instrument is issued in exchange therefor,
54 (10) any amount of money or other property received from the federal
55 savings and loan insurance corporation pursuant to paragraph one, two,
56 three or four of subsection (f) of section four hundred six of the
S. 8578 628
1 federal national housing act, as amended, regardless of whether any note
2 or other instrument is issued in exchange therefor,
3 (11) (i) seventeen percent of interest income from subsidiary capital,
4 and
5 (ii) sixty percent of dividend income from subsidiary capital, and
6 (iii) sixty percent of the amount by which gains from subsidiary capi-
7 tal exceed losses from subsidiary capital, to the extent such gains and
8 losses were taken into account in determining the entire taxable income
9 referred to in subdivision (a) of this section,
10 (12) twenty-two and one-half percent of interest income on obligations
11 of New York state, or of any political subdivision thereof, or on obli-
12 gations of the United States, other than obligations held for resale in
13 connection with regular trading activities,
14 (13) for the taxable years beginning before January first, two thou-
15 sand ten, in the case of a taxpayer which recaptures its balance of the
16 reserve for losses on loans for federal income tax purposes pursuant to
17 subdivision (c) of section five hundred eight-five of the internal
18 revenue code, any amount which is included in federal taxable income
19 pursuant to subdivision (c) of section five hundred eighty-five of such
20 code,
21 (14) for taxable years beginning before January first, two thousand
22 ten, in the case of a taxpayer subject to the provisions of subdivision
23 (c) of section five hundred eighty-five of the internal revenue code,
24 any amount which is included in federal taxable income as a result of a
25 recovery of a loan,
26 (15) for taxable years beginning before January first, two thousand
27 ten, in the case of a taxpayer which is currently or has previously been
28 subject to subdivision (h) of this section, any amount which is included
29 in federal taxable income pursuant to paragraph two of subdivision (e)
30 of section five hundred ninety-three of the internal revenue code, and
31 any other amount so included as a result of a recovery of or termination
32 from the use of a bad debt reserve as defined in section five hundred
33 ninety-three of such code as in existence on December thirty-first,
34 nineteen hundred ninety-five as a result of federal legislation enacted
35 after December thirty-first, nineteen hundred ninety-five,
36 (16) one hundred percent of dividend income from subsidiary capital
37 received during the taxable year if that dividend income is directly
38 attributable to a dividend from a captive REIT or captive RIC for which
39 the captive REIT or captive RIC claimed a federal dividends paid
40 deduction and that captive REIT or captive RIC is included in a combined
41 report or return under subchapter two or part four of subchapter three
42 of this chapter.
43 (f) Provided the taxpayer has not made an election pursuant to para-
44 graph two of subdivision (b) of section 11-642 of this part, there shall
45 be allowed as a deduction in determining entire net income, to the
46 extent not deductible in determining federal taxable income, the
47 adjusted eligible net income of an international banking facility deter-
48 mined as follows:
49 (1) The eligible net income of an international banking facility shall
50 be the amount remaining after subtracting from the eligible gross income
51 the applicable expenses.
52 (2) Eligible gross income shall be the gross income derived by an
53 international banking facility from:
54 (A) making, arranging for, placing or servicing loans to foreign
55 persons, provided, however, that in the case of a foreign person which
56 is an individual, or which is a foreign branch of a domestic corpo-
S. 8578 629
1 ration, other than a bank, or which is a foreign corporation or foreign
2 partnership which is eighty per centum or more owned or controlled,
3 either directly or indirectly, by one or more domestic corporations,
4 other than banks, domestic partnerships or resident individuals,
5 substantially all the proceeds of the loan are intended for use outside
6 of the United States;
7 (B) making or placing deposits with foreign persons which are banks or
8 foreign branches of banks, including foreign subsidiaries or foreign
9 branches of the taxpayer, or with other international banking facili-
10 ties; or
11 (C) entering into foreign exchange trading or hedging transactions
12 related to any of the transactions described in this paragraph.
13 (3) Applicable expenses shall be any expenses or other deductions
14 attributable, directly or indirectly, to the eligible gross income
15 described in paragraph two of this subdivision.
16 (4) Adjusted eligible net income shall be determined by subtracting
17 from eligible net income the ineligible funding amount, and by subtract-
18 ing from the amount then remaining the floor amount.
19 (5) The ineligible funding amount shall be the amount, if any, deter-
20 mined by multiplying eligible net income by a fraction, the numerator of
21 which is the average aggregate amount for the taxable year of all
22 liabilities, including deposits, and other sources of funds of the
23 international banking facility which were not owed to or received from
24 foreign persons, and the denominator of which is the average aggregate
25 amount for the taxable year of all liabilities, including deposits and
26 other sources of funds of the international banking facility.
27 (6) The floor amount shall be the amount, if any, determined by multi-
28 plying the amount remaining after subtracting the ineligible funding
29 amount from the eligible net income by a fraction, not greater than one,
30 which is determined as follows:
31 (A) The numerator shall be
32 (i) the percentage, as set forth in subparagraph (C) of this para-
33 graph, of the average aggregate amount of the taxpayer's loans to
34 foreign persons and deposits with foreign persons which are banks or
35 foreign branches of banks, including foreign subsidiaries or foreign
36 branches of the taxpayer, which loans and deposits were recorded in the
37 financial accounts of the taxpayer for its branches, agencies and
38 offices within the state for taxable years nineteen hundred seventy-
39 five, nineteen hundred seventy-six and nineteen hundred seventy-seven,
40 minus
41 (ii) the average aggregate amount of such loans and such deposits for
42 the taxable year of the taxpayer, other than such loans and deposits of
43 an international banking facility, provided, however, that in no case
44 shall the amount determined in this clause exceed the amount determined
45 in clause (i) of this subparagraph; and
46 (B) The denominator shall be the average aggregate amount of the loans
47 to foreign persons and deposits with foreign persons which are banks or
48 foreign branches of banks, including foreign subsidiaries or foreign
49 branches of the taxpayer, which loans and deposits were recorded in the
50 financial accounts of the taxpayer's international banking facility for
51 the taxable year.
52 (C) The percentage shall be one hundred percent for the first taxable
53 year in which the taxpayer establishes an international banking facility
54 and for the next succeeding four taxable years. The percentage shall be
55 eighty percent for the fifth, sixty percent for the sixth, forty percent
56 for the seventh, and twenty percent for the eighth taxable year next
S. 8578 630
1 succeeding the year such taxpayer establishes such international banking
2 facility, and zero in the ninth succeeding year and thereafter.
3 (7) In the event adjusted eligible net income is a loss, such loss
4 shall be added to entire net income.
5 (8) For purposes of this subdivision, the term "foreign person" means:
6 (A) an individual who is not a resident of the United States,
7 (B) a foreign corporation, a foreign partnership or a foreign trust,
8 as defined in section seventy-seven hundred one of the internal revenue
9 code, other than a domestic branch thereof,
10 (C) a foreign branch of a domestic corporation, including the taxpay-
11 er,
12 (D) a foreign government or an international organization or an agency
13 of either, or
14 (E) an international banking facility.
15 For purposes of this paragraph, the terms "foreign" and "domestic"
16 shall have the same meaning as set forth in section seventy-seven
17 hundred one of the internal revenue code.
18 (g) Entire net income shall be computed without regard to the
19 reduction in the basis of property that is required by section three
20 hundred sixty-two of the internal revenue code, because of any amount of
21 money or other property received from the federal deposit insurance
22 corporation pursuant to subsection (c) of section thirteen of the feder-
23 al deposit insurance act, as amended, or from the federal savings and
24 loan insurance corporation pursuant to paragraph one, two, three or four
25 of subsection (f) of section four hundred six of the federal national
26 housing act, as amended.
27 (h)(1) For purposes of this subdivision, a "thrift institution" is a
28 banking corporation which satisfies the requirements of subparagraphs
29 (A) and (B) of this paragraph.
30 (A) Such banking corporation must be (i) a banking corporation as
31 defined in paragraph one of subdivision (a) of section 11-640 of this
32 part created or authorized to do business under article six or ten of
33 the banking law, (ii) a banking corporation as defined in paragraph two
34 or seven of subdivision (a) of section 11-640 of this part which is
35 doing a business substantially similar to the business which a corpo-
36 ration or association may be created to do under article six or ten of
37 the banking law or any business which a corporation or association is
38 authorized by such article to do, or (iii) a banking corporation as
39 defined in paragraph four or five of subdivision (a) of section 11-640
40 of this part.
41 (B) At least sixty percent of the amount of the total assets, at the
42 close of the taxable year, of such banking corporation must consist of
43 (i) cash; (ii) obligations of the United States or of a state or poli-
44 tical subdivision thereof, and stock or obligations of a corporation
45 which is an instrumentality of the United States or of a state or poli-
46 tical subdivision thereof, but not including obligations the interest on
47 which is excludable from gross income under section one hundred three of
48 the internal revenue code; (iii) loans secured by a deposit or share of
49 a member; (iv) loans secured by an interest in real property which is,
50 or from the proceeds of the loan, will become, residential real property
51 or real property used primarily for church purposes, loans made for the
52 improvement of residential real property or real property used primarily
53 for church purposes, provided that for purposes of this clause, residen-
54 tial real property shall include single or multifamily dwellings, facil-
55 ities in residential developments dedicated to public use or property
56 used on a nonprofit basis for residents, and mobile homes not used on a
S. 8578 631
1 transient basis; (v) property acquired through the liquidation of
2 defaulted loans described in clause (iv) of this subparagraph; (vi) any
3 regular or residual interest in a REMIC, as such term is defined in
4 section eight hundred sixty-D of the internal revenue code and any regu-
5 lar interest in a FASIT, as such term is defined in section eight
6 hundred sixty-L of the internal revenue code, but only in the proportion
7 which the assets of such REMIC or FASIT consist of property described in
8 clauses (i) through (v) of this subparagraph, except that if ninety-five
9 percent or more of the assets of such REMIC or FASIT are assets
10 described in clauses (i) through (v) of this subparagraph, the entire
11 interest in the REMIC or FASIT shall qualify; (vii) any mortgage-backed
12 security which represents ownership of a fractional undivided interest
13 in a trust, the assets of which consist primarily of mortgage loans,
14 provided that the real property which serves as security for the loans
15 is, or from the proceeds of the loan, will become, the type of property
16 described in clause (iv) of this subparagraph and any collateralized
17 mortgage obligation, the security for which consists primarily of mort-
18 gage loans, provided that the real property which serves as security for
19 the loans is, or from the proceeds of the loan, will become, the type of
20 property described in clause (iv) of this subparagraph; (viii) certif-
21 icates of deposit in, or obligations of, a corporation organized under a
22 state law which specifically authorizes such corporation to insure the
23 deposits or share accounts of member associations; (ix) loans secured by
24 an interest in real property located within any urban renewal area to be
25 developed for predominantly residential use under an urban renewal plan
26 approved by the Secretary of Housing and Urban Development under part A
27 or part B of title I of the Housing Act of nineteen hundred forty-nine,
28 as amended, or located within any area covered by a program eligible for
29 assistance under section one hundred three of the Demonstration Cities
30 and Metropolitan Development Act of nineteen hundred sixty-six, as
31 amended, and loans made for the improvement of any such real property;
32 (x) loans secured by an interest in educational, health, or welfare
33 institutions or facilities, including structures designed or used prima-
34 rily for residential purposes for students, residents, and persons under
35 care, employees, or members of the staff of such institutions or facili-
36 ties; (xi) loans made for the payment of expenses of college or univer-
37 sity education or vocational training; (xii) property used by the
38 taxpayer in the conduct of business which consists principally of
39 acquiring the savings of the public and investing in loans; (xiii) loans
40 for which the taxpayer is the creditor and which are wholly secured by
41 loans described in clause (iv) of this subparagraph, but excluding loans
42 for which the taxpayer is the creditor to any banking corporation
43 described in paragraphs one through seven of subdivision (a) of section
44 11-640 of this part or a real estate investment trust, as such term is
45 defined in section eight hundred fifty-six of the internal revenue code,
46 and excluding loans which are treated by the taxpayer as subsidiary
47 capital for purposes of the deductions provided by paragraph eleven of
48 subdivision (e) of this section; (xiv) small business loans or small
49 farm loans located in low-income or moderate-income census tracts or
50 block numbering areas delineated by the United States bureau of the
51 census in the most recent decennial census; and (xv) community develop-
52 ment loans or community development investments. For purposes of clause
53 (xv) of this subparagraph, a "community development loan" is a loan that
54 (I) has as its primary purpose community development, (II) has not been
55 reported or collected by the taxpayer for consideration in the taxpay-
56 er's community reinvestment act evaluation pursuant to the federal
S. 8578 632
1 community reinvestment act of nineteen hundred seventy-seven, as
2 amended, or section twenty-eight-b of the banking law as a mortgage loan
3 described in clause (iv) of this subparagraph or a small business loan,
4 small farm loan, or consumer loan, (III) benefits the taxpayer's assess-
5 ment area or areas for purposes of the federal community reinvestment
6 act of nineteen hundred seventy-seven, as amended or section twenty-
7 eight-b of the banking law or a broader statewide or regional area that
8 includes the taxpayer's assessment area, and (IV) is identified in the
9 taxpayer's books and records as a community development loan for
10 purposes of its community reinvestment act evaluation pursuant to the
11 federal community reinvestment act of nineteen hundred seventy-seven, as
12 amended or section twenty-eight-b of the banking law. For purposes of
13 clause (xv) of this subparagraph, a "community development investment"
14 is an investment in a security which has as its primary purpose communi-
15 ty development and which is identified in the taxpayer's books and
16 records as a qualified investment for purposes of its community rein-
17 vestment act evaluation pursuant to the federal community reinvestment
18 act of nineteen hundred seventy-seven, as amended or section twenty-
19 eight-b of the banking law. For purposes of this subparagraph, "communi-
20 ty development" means (I) affordable housing, including multifamily
21 rental housing for low-income or moderate-income individuals; (II)
22 community services targeted to low-income or moderate-income individ-
23 uals; (III) activities that promote economic development by financing
24 businesses or farms that meet the size eligibility standards of the
25 small business administration's development company or small business
26 investment company programs or have gross annual revenues of one million
27 dollars or less; (IV) activities that revitalize or stabilize low-income
28 or moderate-income census tracts or block numbering areas delineated by
29 the United States bureau of the census in the most recent decennial
30 census; or (V) activities that seek to prevent defaults and/or foreclo-
31 sures in loans included in items (I) and (III) of this subclause.
32 (C) At the election of the taxpayer, the percentage specified in
33 subparagraph (B) of this paragraph shall be applied on the basis of the
34 average assets outstanding during the taxable year, in lieu of the close
35 of the taxable year. For purposes of clause (iv) of subparagraph (B) of
36 this paragraph, if a multifamily structure securing a loan is used in
37 part for nonresidential use purposes, the entire loan is deemed a resi-
38 dential real property loan if the planned residential use exceeds eighty
39 percent of the property's planned use, determined as of the time the
40 loan is made. Also, for purposes of clause (iv) of subparagraph (B) of
41 this paragraph, loans made to finance the acquisition or development of
42 land shall be deemed to be loans secured by an interest in residential
43 real property if there is a reasonable assurance that the property will
44 become residential real property within a period of three years from the
45 date of acquisition of such land; but this shall not apply for any taxa-
46 ble year unless, within such three year period, such land becomes resi-
47 dential real property. For purposes of determining whether any interest
48 in a REMIC qualifies under clause (vi) of subparagraph (B) of this para-
49 graph, any regular interest in another REMIC held by such REMIC shall be
50 treated as a loan described in clauses (i), (ii), (iii), (iv) or (v) of
51 subparagraph (B) of this paragraph under principles similar to the prin-
52 ciple of such clause (vi); except that if such REMICS are part of a
53 tiered structure, they shall be treated as one REMIC for purposes of
54 such clause (vi).
55 (2) For taxable years beginning before January first, two thousand
56 ten, a thrift institution must exclude from the computation of its
S. 8578 633
1 entire net income any amount allowed as a deduction for federal income
2 tax purposes pursuant to section one hundred sixty-six, five hundred
3 eight-five or five hundred ninety-three of the internal revenue code.
4 (3) For taxable years beginning before January first, two thousand
5 ten, a thrift institution shall be allowed as a deduction in computing
6 entire net income the amount of a reasonable addition to its reserve for
7 bad debts. This amount shall be equal to the sum of:
8 (A) the amount determined to be a reasonable addition to the reserve
9 for losses on nonqualifying loans, computed in the same manner as is
10 provided with respect to additions to the reserves for losses on loans
11 of banks under paragraph one of subdivision (i) of this section, plus
12 (B) the amount determined by the taxpayer to be a reasonable addition
13 to the reserve for losses on qualifying real property loans, but such
14 amount shall not exceed the amount determined under paragraph four or
15 five of this subdivision, whichever is the larger, but the amount deter-
16 mined under this subparagraph shall in no case be greater than the larg-
17 er of:
18 (i) the amount determined under paragraph five of this subdivision, or
19 (ii) the amount which, when added to the amount determined under
20 subparagraph (A) of this paragraph, equals the amount by which twelve
21 percent of the total deposits or withdrawable accounts of depositors of
22 the taxpayer at the close of such year exceeds the sum of its surplus,
23 undivided profits and reserves at the beginning of such year, taking
24 into account any portion thereof attributable to the period before the
25 first taxable year beginning after December thirty-first, nineteen
26 hundred fifty-one.
27 The taxpayer must include in its tax return for each year a computa-
28 tion of the amount of the addition to the bad debt reserve determined
29 under this subdivision. The use of a particular method in the return for
30 a taxable year is not a binding election by the taxpayer.
31 (4)(A) Subject to subparagraphs (B) and (C) of this paragraph, the
32 amount determined under this paragraph for the taxable year shall be an
33 amount equal to thirty-two percent of the entire net income for such
34 year.
35 (B) The amount determined under subparagraph (A) of this paragraph
36 shall be reduced, but not below zero, by the amount determined under
37 subparagraph (A) of paragraph three of this subdivision.
38 (C) The amount determined under this paragraph shall not exceed the
39 amount necessary to increase the balance at the close of the taxable
40 year of the reserve for losses on qualifying real property loans to six
41 percent of such loans outstanding at such time.
42 (D) For purposes of this paragraph, entire net income shall be
43 computed
44 (i) by excluding from income any amount included therein by reason of
45 subparagraph (B) of paragraph eight of this subdivision,
46 (ii) without regard to any deduction allowable for any addition to the
47 reserve for bad debts, and
48 (iii) by excluding from income an amount equal to the net gain for the
49 taxable year arising from the sale or exchange of stock of a corporation
50 or of obligations the interest on which is excludable from gross income
51 under section one hundred three of the internal revenue code.
52 (iv) Whenever a thrift institution is properly includable in a
53 combined return, entire net income, for purposes of this paragraph,
54 shall not exceed the lesser of the thrift institution's separately
55 computed entire net income as adjusted pursuant to clauses (i) through
S. 8578 634
1 (iii) of this subparagraph or the combined group's entire net income as
2 adjusted pursuant to clauses (i) through (iii) of this subparagraph.
3 (5) The amount determined under this paragraph for the taxable year
4 shall be computed in the same manner as is provided under paragraph one
5 of subdivision (i) of this section with respect to additions to reserves
6 for losses on loans of banks. Provided, however, that for any taxable
7 year beginning after nineteen hundred ninety-five, for purposes of such
8 computation, the base year shall be the later of (A) the last taxable
9 year beginning in nineteen hundred ninety-five or (B) the last taxable
10 year before the current year in which the amount determined under the
11 provisions of subparagraph (B) of paragraph three of this subdivision
12 exceeded the amount allowable under this paragraph.
13 (6) (A) (i) Each taxpayer described in paragraph one of this subdivi-
14 sion shall establish and maintain a New York reserve for losses on qual-
15 ifying real property loans, a New York reserve for losses on nonqualify-
16 ing loans and a supplemental reserve for losses on loans. Such reserves
17 shall be maintained for all subsequent taxable years that this subdivi-
18 sion applies to the taxpayer.
19 (ii) For purposes of this subdivision, such reserves shall be treated
20 as reserves for bad debts, but no deduction shall be allowed for any
21 addition to the supplemental reserve for losses on loans.
22 (iii) Except as provided in this clause, the balances of each such
23 reserve at the beginning of the first day of the first taxable year
24 beginning after December thirty-first, nineteen hundred ninety-five
25 shall be the same as the balances maintained for federal income tax
26 purposes in accordance with paragraph one of subdivision (c) of section
27 five hundred ninety-three of the internal revenue code as in existence
28 on December thirty-first, nineteen hundred ninety-five for the last day
29 of the last tax year beginning before January first, nineteen hundred
30 ninety-six. A taxpayer which maintained a New York reserve for loan
31 losses on qualifying real property loans in the last tax year beginning
32 before January first, nineteen hundred ninety-six shall have a continua-
33 tion of such New York reserve balance in lieu of the amount determined
34 under this clause.
35 (iv) Notwithstanding clause (ii) of this subparagraph, any amount
36 allocated to the reserve for losses on qualifying real property loans
37 pursuant to paragraph five of subdivision (c) of section five hundred
38 ninety-three of the internal revenue code as in effect immediately prior
39 to the enactment of the Tax Reform Act of nineteen hundred seventy six
40 shall not be treated as a reserve for bad debts for any purpose other
41 than determining the amount referred to in subparagraph (B) of paragraph
42 three of this subdivision, and for such purpose such amount shall be
43 treated as remaining in such reserve.
44 (B) Any debt becoming worthless or partially worthless in respect of a
45 qualifying real property loan shall be charged to the reserve for losses
46 on such loans and any debt becoming worthless or partially worthless in
47 respect of a nonqualifying loan shall be charged to the reserve for
48 losses on nonqualifying loans, except that any such debt may, at the
49 election of the taxpayer, be charged in whole or in part to the supple-
50 mental reserve for losses on loans.
51 (C) The New York reserve for losses on qualifying real property loans
52 shall be increased by the amount determined under subparagraph (B) of
53 paragraph three of this subdivision and the New York reserve for losses
54 on nonqualifying loans shall be increased by the amount determined under
55 subparagraph (A) of paragraph three of this subdivision.
S. 8578 635
1 (7)(A) For purposes of this subdivision, the term "qualifying real
2 property loan" shall mean any loan secured by an interest in improved
3 real property or secured by an interest in real property which is to be
4 improved out of the proceeds of the loan. Such term shall include any
5 mortgage-backed security which represents ownership of a fractional
6 undivided interest in a trust, the assets of which consist primarily of
7 mortgage loans, provided that the real property which serves as security
8 for the loans is, or from the proceeds of the loan, will become, the
9 type of property described in clauses (i) through (v) of subparagraph
10 (B) of paragraph one of this subdivision. However, such term shall not
11 include: (i) any loan evidenced by a security, as defined in subpara-
12 graph (C) of paragraph two of subdivision (g) of section one hundred
13 sixty-five of the internal revenue code; (ii) any loan, whether or not
14 evidenced by a security, as defined in such subparagraph (C) of para-
15 graph two of subdivision (g) of section one hundred sixty-five, the
16 primary obligor of which is (I) a government or political subdivision or
17 instrumentality thereof, (II) a banking corporation, or (III) any corpo-
18 ration sixty-five percent or more of whose voting stock is owned or
19 controlled, directly or indirectly, by the taxpayer or by a banking
20 corporation or bank holding company that owns or controls, directly or
21 indirectly, sixty-five percent or more of the voting stock of the
22 taxpayer; (iii) any loan, to the extent secured by a deposit in or share
23 of the taxpayer; or (iv) any loan which, within a sixty-day period
24 beginning in one taxable year of the creditor and ending in its next
25 taxable year, is made or acquired and then repaid or disposed of, unless
26 the transactions by which such loan was made or acquired and then repaid
27 or disposed of are established to be for bona fide business purposes.
28 (B) For purposes of this subdivision, the term "nonqualifying loan"
29 shall mean any loan which is not a qualifying real property loan.
30 (C) For purposes of this subdivision, the term "loan" shall mean debt,
31 as the term "debt" is used in section one hundred sixty-six of the
32 internal revenue code.
33 (D) A regular or residual interest in a REMIC, as such term is defined
34 in section eight hundred sixty-D of the internal revenue code, shall be
35 treated as a qualifying real property loan, except that, if less than
36 ninety-five percent of the assets of such REMIC are qualifying real
37 property loans, determined as if the taxpayer held the assets of the
38 REMIC, such interest shall be so treated only in the proportion which
39 the assets of such REMIC consist of such loans. For purposes of deter-
40 mining whether any interest in a REMIC qualifies under the provisions of
41 this paragraph, any interest in another REMIC held by such REMIC shall
42 be treated as a qualifying real property loan under principles similar
43 to the principles of this paragraph, except that if such REMICS are part
44 of a tiered structure, they shall be treated as one REMIC for purposes
45 of this paragraph.
46 (8)(A) Any distribution of property, as defined in subdivision (a) of
47 section three hundred seventeen of the internal revenue code, by a
48 thrift institution to a shareholder with respect to its stock, if such
49 distribution is not allowable as a deduction under section five hundred
50 ninety-one of such code, shall be treated as made
51 (i) first out of its New York earnings and profits accumulated in
52 taxable years beginning after December thirty-first, nineteen hundred
53 fifty-one, to the extent thereof,
54 (ii) then out of the New York reserve for losses on qualifying real
55 property loans, to the extent additions to such reserve exceed the addi-
S. 8578 636
1 tions which would have been allowed under paragraph five of this subdi-
2 vision,
3 (iii) then out of the supplemental reserve for losses on loans, to the
4 extent thereof,
5 (iv) then out of such other accounts as may be proper.
6 This subparagraph shall apply in the case of any distribution in redemp-
7 tion of stock or in partial or complete liquidation of a thrift institu-
8 tion, except that any such distribution shall be treated as made first
9 out of the amount referred to in clause (ii) of this subparagraph,
10 second out of the amount referred to in clause (iii) of this subpara-
11 graph, third out of the amount referred to in clause (i) of this subpar-
12 agraph and then out of such other accounts as may be proper. This
13 subparagraph shall not apply to any transaction to which section three
14 hundred eighty-one of such code, relating to carryovers and certain
15 corporate acquisitions, applies, or to any distribution to the federal
16 savings and loan insurance corporation or the federal deposit insurance
17 corporation in redemption of an interest in an association or institu-
18 tion, if such interest was originally received by the federal savings
19 and loan insurance corporation or the federal deposit insurance corpo-
20 ration in exchange for financial assistance pursuant to subdivision (f)
21 of section four hundred six of the federal national housing act or
22 pursuant to subsection (c) of section thirteen of the federal deposit
23 insurance act.
24 (B) If any distribution is treated under subparagraph (A) of this
25 paragraph as having been made out of the reserves described in clauses
26 (ii) and (iii) of such subparagraph, the amount charged against such
27 reserve shall be the amount which, when reduced by the amount of tax
28 imposed under the internal revenue code and attributable to the inclu-
29 sion of such amount in gross income, is equal to the amount of such
30 distribution; and the amount so charged against such reserve shall be
31 included in the entire net income of the taxpayer.
32 (C) (i) For purposes of clause (ii) of subparagraph (A) of this para-
33 graph, additions to the New York reserve for losses on qualifying real
34 property loans for the taxable year in which the distribution occurs
35 shall be taken into account.
36 (ii) For purposes of computing under this subdivision the amount of a
37 reasonable addition to the New York reserve for losses on qualifying
38 real property loans for any taxable year, the amount charged during any
39 year to such reserve pursuant to the provisions of subparagraph (B) of
40 this paragraph shall not be taken into account.
41 (9) A taxpayer which maintains a New York reserve for losses on quali-
42 fying real property loans and which ceases to meet the definition of a
43 thrift institution as defined in paragraph one of this subdivision, must
44 include in its entire net income for the last taxable year such para-
45 graph applied the excess of its New York reserve for losses on qualify-
46 ing real property loans over the greater of (A) its reserve for losses
47 on qualifying real property loans as of the last day of the last taxable
48 year such reserve is maintained for federal income tax purposes or (B)
49 the balance of the New York reserve for losses on qualifying real prop-
50 erty loans which would be allowable to the taxpayer for the last taxable
51 year such taxpayer met such definition of a thrift institution if the
52 taxpayer had computed its reserve balance pursuant to the method
53 described in subparagraph (A) of paragraph one of subdivision (i) of
54 this section.
55 (i) (1) For taxable years beginning before January first, two thousand
56 ten, a taxpayer subject to the provisions of subdivision (c) of section
S. 8578 637
1 five hundred eighty-five of the internal revenue code and not subject to
2 subdivision (h) of this section may, in computing entire net income,
3 deduct an amount equal to or less than the amount determined pursuant to
4 subparagraph (A) of this paragraph or subparagraph (B) of this para-
5 graph, whichever is greater. Provided, however, in no event shall the
6 deduction be less than the amount determined pursuant to such subpara-
7 graph (A).
8 (A) The amount determined pursuant to this subparagraph shall be the
9 amount necessary to increase the balance of its New York reserve for
10 losses on loans, at the close of the taxable year, to the amount which
11 bears the same ratio to loans outstanding at the close of the taxable
12 year as (i) the total bad debts sustained during the taxable year and
13 the five preceding taxable years, or, with the approval of the commis-
14 sioner of finance, a shorter period, adjusted for recoveries of bad
15 debts during such period, bears to (ii) the sum of the loans outstanding
16 at the close of such six or fewer taxable years.
17 (B)(i) The amount determined pursuant to this subparagraph shall be
18 the amount necessary to increase the balance of its New York reserve for
19 losses on loans, at the close of the taxable year, to the lower of:
20 (I) the balance of the reserve at the close of the base year, or
21 (II) if the amount of loans outstanding at the close of the taxable
22 year is less than the amount of loans outstanding at the close of the
23 base year, the amount which bears the same ratio to loans outstanding at
24 the close of the taxable year as the balance of the reserve at the close
25 of the base year bears to the amount of loans outstanding at the close
26 of the base year.
27 (ii) For purposes of this paragraph, the base year shall be (I) for
28 taxable years beginning in nineteen hundred eighty-seven, the last taxa-
29 ble year before the most recent adoption of the experience method for
30 federal income tax purposes or for purposes of this part, whichever is
31 earlier, and (II) for taxable years beginning after nineteen hundred
32 eighty-seven, the last taxable year beginning before nineteen hundred
33 eighty-eight.
34 (2) (A) For taxable years beginning before January first, two thousand
35 ten, each taxpayer described in paragraph one of this subdivision shall
36 establish and maintain a New York reserve for losses on loans. Such
37 reserve shall be maintained for all subsequent taxable years. The
38 balance of the New York reserve for losses on loans at the beginning of
39 the first day of the first taxable year the taxpayer becomes subject to
40 this subdivision shall be the same as the balance at the beginning of
41 such day of the reserve for losses on loans maintained for federal
42 income tax purposes. The New York reserve for losses on loans shall be
43 reduced by an amount equal to the deduction allowed, but not more than
44 the amount allowable, for worthless debts for federal income tax
45 purposes pursuant to section one hundred sixty-six of the internal
46 revenue code plus the amount, if any, charged against its reserve for
47 losses on loans pursuant to paragraph four of subdivision (c) of section
48 five hundred eighty-five of such code.
49 (B) For purposes of subparagraph (A) of this paragraph, a taxpayer
50 which had previously been subject to the provisions of subdivision (h)
51 of this section shall establish a New York reserve for losses on loans
52 equal to the sum of (i) the greater of (I) the balance of its federal
53 reserve for losses on qualifying real property loans as of the first day
54 of the first taxable year the taxpayer becomes subject to the provisions
55 of this subdivision or (II) the greater of the amounts determined under
56 subparagraphs (A) and (B) of paragraph nine of subdivision (h) of this
S. 8578 638
1 section in the year such paragraph applied to the taxpayer, (ii) the
2 greater of (I) the balance in its federal reserve for losses on nonqual-
3 ifying loans as of the first day of the first taxable year the taxpayer
4 becomes subject to this subdivision or (II) the balance in its New York
5 reserve for losses on nonqualifying loans as of the last date the
6 taxpayer was subject to the provisions of subdivision (h) of this
7 section, and (iii) the balance in its supplemental reserve for losses on
8 loans as of the last date the taxpayer was subject to the provisions of
9 subdivision (h) of this section.
10 (3) The determination and treatment of the New York reserve balance,
11 including any additions thereto, subtractions therefrom, or recapture
12 thereof, for:
13 (A) any banking corporation which was subject to tax for federal
14 income tax purposes but not subject to tax under this part for prior
15 taxable years,
16 (B) any taxpayer which ceases to be subject to tax under this part, or
17 (C) any other unusual circumstances,
18 shall be determined by the commissioner of finance. Provided, however,
19 any banking corporation which was subject to tax for federal income tax
20 purposes but not subject to tax under this part for prior taxable years
21 shall have as its opening New York reserve for losses on loans the
22 amount determined by applying the provisions of subparagraph (A) of
23 paragraph one of this subdivision to loans outstanding at the close of
24 its last taxable year for federal income tax purposes ending prior to
25 the first taxable year for which the taxpayer is subject to tax under
26 this part and provided, further, that the provisions of subparagraph (B)
27 of paragraph one of this subdivision shall not apply.
28 (j) (1) For any taxable year beginning in nineteen hundred seventy-
29 three or for any period for which a tax is imposed under subdivision (b)
30 of section 11-639 of this part, entire net income shall be computed
31 without regard to the amount allowable as a deduction for bad debts or
32 an addition to a reserve for bad debts in computing federal taxable
33 income for the taxable year, but, in lieu thereof, a deduction shall be
34 allowed to the extent and in the manner authorized by subdivision five
35 of section 11-621 or subdivision (e) of section 11-629 of this subchap-
36 ter as if such provisions were set forth in full in this part and by
37 treating such provisions as applicable under this part.
38 (2) In the case of property placed in service prior to January first,
39 nineteen hundred seventy-three, for which the taxpayer properly adopted
40 a different method of computing depreciation under section 11-621 or
41 section 11-629 of this subchapter than was adopted for federal income
42 tax purposes with respect to such property, entire net income under this
43 part shall be computed without regard to the amount allowable as a
44 deduction for depreciation of such property in computing federal taxable
45 income for the taxable year but, in lieu thereof, shall be computed as
46 if such deduction were determined by the method of depreciation adopted
47 with respect to such property under section 11-621 or 11-629 of this
48 subchapter.
49 (3) In computing entire net income, the amount allowable as a
50 deduction for charitable contributions for federal income tax purposes
51 shall be: (a) increased for the first taxable year or period beginning
52 in nineteen hundred seventy-three by the amount of any contributions
53 made during such taxable year or period which were not allowable as a
54 deduction for charitable contributions for federal income tax purposes
55 for such taxable year or period because of an election pursuant to para-
56 graph two of subsection (a) of section one hundred seventy of the inter-
S. 8578 639
1 nal revenue code and which were not deductible in computing the tax due
2 under part one or two of this subchapter, and (b) decreased by any
3 amount allowed as a deduction for federal income tax purposes for the
4 taxable year under section one hundred seventy of the internal revenue
5 code as a carryover of excess contributions which are not made in such
6 taxable year and which were deductible in computing the tax due under
7 part one or two of this subchapter.
8 (4) There shall be excluded from the computation of entire net income
9 any amount allowed as a deduction for federal income tax purposes for
10 the taxable year under section twelve hundred twelve of the internal
11 revenue code as a capital loss carry forward to the taxable year, which
12 was deductible as a loss in computing the tax due under part one or two
13 of this subchapter.
14 (5) There shall be excluded from the computation of entire net income
15 the amount of any income or gain from the sale of real or personal prop-
16 erty which is includible in determining federal taxable income for the
17 taxable year pursuant to the installment method under section four
18 hundred fifty-three of the internal revenue code, to the extent that
19 such income or gain was includible in the computation of the tax due
20 under part one or two of this subchapter.
21 (6) To the extent not otherwise provided in this part, there shall be
22 excluded from entire net income the amount necessary to prevent the
23 taxation under this part of any other amount of income or gain which was
24 properly included in income or gain and was taxable under part one or
25 two of this subchapter and there shall be disallowed as a deduction in
26 computing entire net income any amount which was allowed as a deduction
27 in computing the tax due under such parts.
28 (k) (1) At the election of the taxpayer, there shall be deducted from
29 the portion of its entire net income allocated within the city, depreci-
30 ation with respect to any property such as described in paragraph two of
31 this subdivision, not exceeding twice the depreciation allowed with
32 respect to the same property for federal income tax purposes. Such
33 deduction shall be allowed only upon condition that entire net income be
34 computed without any deduction for depreciation or amortization of the
35 same property, and the total of all deductions allowed under parts one
36 and two of this subchapter three and this part in any taxable year or
37 years with respect to the depreciaton of any such property shall not
38 exceed its cost or other basis.
39 (2) Such deduction shall be allowed only with respect to tangible
40 property which is depreciable pursuant to section one hundred sixty-sev-
41 en of the internal revenue code, having a situs in this city and used in
42 the taxpayer's business, (i) constructed, reconstructed or erected after
43 December thirty-first, nineteen hundred sixty-five, pursuant to a
44 contract which was, on or before December thirty-first, nineteen hundred
45 sixty-seven, and at all times thereafter, binding on the taxpayer or,
46 property, the physical construction, reconstruction or erection of which
47 began on or before December thirty-first, nineteen hundred sixty-seven
48 or which began after such date pursuant to an order placed on or before
49 December thirty-first, nineteen hundred sixty-seven, and then only with
50 respect to that portion of the basis thereof which is properly attribut-
51 able to such construction, reconstruction or erection after December
52 thirty-first, nineteen hundred sixty-five, or (ii) acquired after Decem-
53 ber thirty-first, nineteen hundred sixty-five, pursuant to a contract
54 which was, on or before December thirty-first, nineteen hundred sixty-
55 seven, and at all times thereafter, binding on the taxpayer or pursuant
56 to an order placed on or before December thirty-first, nineteen hundred
S. 8578 640
1 sixty-seven, by purchase as defined in subdivision (d) of section one
2 hundred seventy-nine of the internal revenue code, if the original use
3 of such property commenced with the taxpayer, commenced in this city and
4 commenced after December thirty-first, nineteen hundred sixty-five, or
5 (iii) acquired, constructed, reconstructed, or erected subsequent to
6 December thirty-first, nineteen hundred sixty-seven, if such acquisi-
7 tion, construction, reconstruction or erection is pursuant to a plan of
8 the taxpayer which was in existence December thirty-first, nineteen
9 hundred sixty-seven and not thereafter substantially modified, and such
10 acquisition, construction, reconstruction or erection would qualify
11 under the rules in paragraph four, five or six of subsection (h) of
12 section forty-eight of the internal revenue code provided all references
13 in such paragraphs four, five and six to the dates October nine, nine-
14 teen hundred sixty-six, and October ten, nineteen hundred sixty-six,
15 shall be read as December thirty-first, nineteen hundred sixty-seven. A
16 taxpayer shall be allowed a deduction under clause (i), (ii) or (iii) of
17 this paragraph only if the tangible property shall be delivered or the
18 construction, reconstruction or erection shall be completed on or before
19 December thirty-first, nineteen hundred sixty-nine, except in the case
20 of tangible property which is acquired, constructed, reconstructed or
21 erected pursuant to a contract which was, on or before December thirty-
22 first, nineteen hundred sixty-seven, and at all times thereafter, bind-
23 ing on the taxpayer. Provided, however, for any taxable year beginning
24 on or after January first, nineteen hundred sixty-eight, a taxpayer
25 shall not be allowed a deduction under paragraph one of this subdivision
26 with respect to tangible personal property leased by it to any other
27 person or corporation, provided, that any contract or agreement to lease
28 or rent or for a license to use such property shall be considered a
29 lease. With respect to property which the taxpayer uses itself for
30 purposes other than leasing for part of a taxable year and leases for a
31 part of a taxable year, the taxpayer shall be allowed a deduction under
32 paragraph one of this subdivision in proportion to the part of the year
33 it uses such property.
34 (3) If the deduction allowable for any taxable year pursuant to this
35 subdivision exceeds the portion of the taxpayer's entire net income
36 allocated to this city for such year, the excess may be carried over to
37 the following taxable year or years and may be deducted from the portion
38 of the taxpayer's entire net income allocated to this city for such year
39 or years.
40 (4) In any taxable year when property is sold or otherwise disposed
41 of, with respect to which a deduction has been allowed pursuant to this
42 subdivision, subdivision twelve of section 11-621 or subdivision (j) of
43 section 11-629 of this subchapter, the gain or loss entering into the
44 computation of federal taxable income shall be disregarded in computing
45 entire net income, and there shall be added or subtracted from the
46 portion of entire net income allocated within the city the gain or loss
47 upon such sale or other disposition. In computing such gain or loss the
48 basis of the property sold or disposed of shall be adjusted to reflect
49 the deduction allowed with respect to such property pursuant to para-
50 graph one of this subdivision. Provided, however, that no loss shall be
51 recognized for the purposes of this paragraph with respect to a sale or
52 other disposition of property to a person whose acquisition thereof is
53 not a purchase as defined in subdivision (d) of section one hundred
54 seventy-nine of the internal revenue code.
55 (k-1) A net operating loss deduction shall be allowed which shall be
56 presumably the same as the net operating loss deduction allowed under
S. 8578 641
1 section one hundred seventy-two of the internal revenue code, except
2 that in every instance where such deduction is allowed under this
3 subchapter:
4 (1) any net operating loss included in determining such deduction
5 shall be adjusted to reflect the inclusions and exclusions from entire
6 net income required by the other provisions of this section;
7 (2) such deduction shall not include any net operating loss sustained
8 during any taxable year beginning prior to January first, two thousand
9 nine, or during any taxable year in which the taxpayer was not subject
10 to the tax imposed by this subchapter;
11 (3) such deduction shall not exceed the deduction for the taxable year
12 allowed under section one hundred seventy-two of the internal revenue
13 code augmented by the excess of the amount allowed as a deduction pursu-
14 ant to subdivision (h) or (i) of this section, whichever is applicable,
15 over the amount allowed as a deduction pursuant to section one hundred
16 sixty-six or five hundred eighty-five of the internal revenue code, for
17 each taxable year in which the taxpayer had a net operating loss which
18 is carried to the taxable year of the deduction under this provision, in
19 the aggregate, except to the extent such excess was previously deducted
20 in computing entire net income; and
21 (4) the net operating loss deduction allowed under section one hundred
22 seventy-two of the internal revenue code shall for purposes of this
23 subdivision be determined as if the taxpayer had elected under such
24 section to relinquish the entire carryback period with respect to net
25 operating losses.
26 (k-2) Notwithstanding any other provision of this section to the
27 contrary, for taxable years beginning before January first, two thousand
28 twenty-one, any amendment to section one hundred seventy-two of the
29 internal revenue code made after March first, two thousand twenty shall
30 not apply to this part.
31 (1) If the period covered by a return under this part is other than
32 the period covered by the return to the United States treasury depart-
33 ment, entire net income and alternative entire net income shall be
34 determined by multiplying the taxable income reported to such depart-
35 ment, as adjusted pursuant to the provisions of this part, by the number
36 of calendar months or major parts thereof covered by the return under
37 this part and dividing by the number of calendar months or major parts
38 thereof covered by the return to such department. If it shall appear
39 that such method of determining entire net income or alternative entire
40 net income does not properly reflect the taxpayer's income during the
41 period covered by the return under this part, the commissioner of
42 finance shall be authorized in his or her discretion to determine such
43 entire net income or alternative entire net income solely on the basis
44 of the taxpayer's income during the period covered by its return under
45 this part.
46 (m) The commissioner of finance, may, whenever necessary in order to
47 properly reflect the entire net income of any taxpayer, determine the
48 year or period in which any item of income or deduction shall be
49 included, without regard to the method of accounting employed by the
50 taxpayer.
51 (n) Notwithstanding any other provision of this subchapter, for taxa-
52 ble years beginning on or after August first, two thousand two, in the
53 case of a taxpayer that is a partner in a partnership subject to the tax
54 imposed by chapter eleven of this title as a utility, as defined in
55 subdivision six of section 11-1101 of such chapter, entire net income
56 shall not include the taxpayer's distributive or pro rata share for
S. 8578 642
1 federal income tax purposes of any item of income, gain, loss or
2 deduction of such partnership, or any item of income, gain, loss or
3 deduction of such partnership that the taxpayer is required to take into
4 account separately for federal income tax purposes.
5 (n-1) for taxable years ending after September tenth, two thousand
6 one, in the case of qualified property described in paragraph two of
7 subsection k of section one hundred sixty-eight of the internal revenue
8 code, other than qualified resurgence zone property described in subdi-
9 vision (p) of this section, and other than qualified New York Liberty
10 Zone property described in paragraph two of subsection b of section
11 fourteen hundred-L of the internal revenue code, without regard to
12 clause (i) of subparagraph (C) of such paragraph, a taxpayer shall be
13 allowed with respect to such property the depreciation deduction allow-
14 able under section one hundred sixty-seven as such section would have
15 applied to such property had it been acquired by the taxpayer on Septem-
16 ber tenth, two thousand one, provided, however, that for taxable years
17 beginning on or after January first, two thousand four, in the case of a
18 passenger motor vehicle or a sport utility vehicle subject to the
19 provisions of subdivision (r) of this section, the limitation under
20 clause (i) of subparagraph (A) of paragraph one of subdivision (a) of
21 section two hundred eighty-F of the internal revenue code applicable to
22 the amount allowed as a deduction under this paragraph shall be deter-
23 mined as of the date such vehicle was placed in service and not as of
24 September tenth, two thousand one.
25 (o) for taxable years ending after September tenth, two thousand one,
26 upon the disposition of property to which subdivision (n) of this
27 section applies, the amount of any gain or loss includible in entire net
28 income shall be adjusted to reflect the inclusions and exclusions from
29 entire net income pursuant to paragraph thirteen of subdivision (b) and
30 subdivision (n) of this section attributable to such property.
31 (p) for purposes of subdivisions (n) and (o) of this section, quali-
32 fied resurgence zone property shall mean qualified property described in
33 paragraph two of subsection k of section one hundred sixty-eight of the
34 internal revenue code substantially all of the use of which is in the
35 resurgence zone, as defined below, and is in the active conduct of a
36 trade or business by the taxpayer in such zone, and the original use of
37 which in the resurgence zone commences with the taxpayer after September
38 tenth, two thousand one. The resurgence zone shall mean the area of New
39 York county bounded on the south by a line running from the intersection
40 of the Hudson River with the Holland Tunnel, and running thence east to
41 Canal Street, then running along the centerline of Canal Street to the
42 intersection of the Bowery and Canal Street, running thence in a south-
43 easterly direction diagonally across Manhattan Bridge Plaza, to the
44 Manhattan Bridge, and thence along the centerline of the Manhattan
45 Bridge to the point where the centerline of the Manhattan Bridge would
46 intersect with the easterly bank of the East River, and bounded on the
47 north by a line running from the intersection of the Hudson River with
48 the Holland Tunnel and running thence north along West Avenue to the
49 intersection of Clarkson Street then running east along the centerline
50 of Clarkson Street to the intersection of Washington Avenue, then
51 running south along the centerline of Washington Avenue to the inter-
52 section of West Houston Street, then east along the centerline of West
53 Houston Street, then at the intersection of the Avenue of the Americas
54 continuing east along the centerline of East Houston Street to the east-
55 erly bank of the East River.
S. 8578 643
1 (q) Related members expense add back. (1) Definitions. (A) Related
2 member. "Related member" means a related person as defined in subpara-
3 graph (c) of paragraph three of subsection (b) of section four hundred
4 sixty-five of the internal revenue code, except that "fifty percent"
5 shall be substituted for "ten percent".
6 (B) Effective rate of tax. "Effective rate of tax" means, as to any
7 city, the maximum statutory rate of tax imposed by the city on or meas-
8 ured by a related member's net income multiplied by the apportionment
9 percentage, if any, applicable to the related member under the laws of
10 said jurisdiction. For purposes of this definition, the effective rate
11 of tax as to any city is zero where the related member's net income tax
12 liability in said city is reported on a combined or consolidated return
13 including both the taxpayer and the related member where the reported
14 transactions between the taxpayer and the related member are eliminated
15 or offset. Also, for purposes of this definition, when computing the
16 effective rate of tax for a city in which a related member's net income
17 is eliminated or offset by a credit or similar adjustment that is
18 dependent upon the related member either maintaining or managing intan-
19 gible property or collecting interest income in that city, the maximum
20 statutory rate of tax imposed by said city shall be decreased to reflect
21 the statutory rate of tax that applies to the related member as effec-
22 tively reduced by such credit or similar adjustment.
23 (C) Royalty payments. Royalty payments are payments directly connected
24 to the acquisition, use, maintenance or management, ownership, sale,
25 exchange, or any other disposition of licenses, trademarks, copyrights,
26 trade names, trade dress, service marks, mask works, trade secrets,
27 patents and any other similar types of intangible assets as determined
28 by the commissioner of finance, and include amounts allowable as inter-
29 est deductions under section one hundred sixty-three of the internal
30 revenue code to the extent such amounts are directly or indirectly for,
31 related to or in connection with the acquisition, use, maintenance or
32 management, ownership, sale, exchange or disposition of such intangible
33 assets.
34 (D) Valid business purpose. A valid business purpose is one or more
35 business purposes, other than the avoidance or reduction of taxation,
36 which alone or in combination constitute the primary motivation for some
37 business activity or transaction, which activity or transaction changes
38 in a meaningful way, apart from tax effects, the economic position of
39 the taxpayer. The economic position of the taxpayer includes an increase
40 in the market share of the taxpayer, or the entry by the taxpayer into
41 new business markets.
42 (2) Royalty expense add backs. (A) For the purpose of computing entire
43 net income, a taxpayer must add back royalty payments directly or indi-
44 rectly paid, accrued, or incurred in connection with one or more direct
45 or indirect transactions with one or more related members during the
46 taxable year to the extent deductible in calculating federal taxable
47 income.
48 (B) Exceptions. (i) The adjustment required in this subdivision shall
49 not apply to the portion of the royalty payment that the taxpayer estab-
50 lishes, by clear and convincing evidence of the type and in the form
51 specified by the commissioner of finance, meets all of the following
52 requirements: (I) the related member was subject to tax in this city or
53 another city within the United States or a foreign nation or some combi-
54 nation thereof on a tax base that included the royalty payment paid,
55 accrued or incurred by the taxpayer; (II) the related member during the
56 same taxable year directly or indirectly paid, accrued or incurred such
S. 8578 644
1 portion to a person that is not a related member; and (III) the trans-
2 action giving rise to the royalty payment between the taxpayer and the
3 related member was undertaken for a valid business purpose.
4 (ii) The adjustment required in this subdivision shall not apply if
5 the taxpayer establishes, by clear and convincing evidence of the type
6 and in the form specified by the commissioner of finance, that: (I) the
7 related member was subject to tax on or measured by its net income in
8 this city or another city within the United States, or some combination
9 thereof; (II) the tax base for such tax included the royalty payment
10 paid, accrued or incurred by the taxpayer; and (III) the aggregate
11 effective rate of tax applied to the related member in those jurisdic-
12 tions is no less than eighty percent of the statutory rate of tax that
13 applied to the taxpayer under section 11-643.5 of this part for the
14 taxable year.
15 (iii) The adjustment required in this subdivision shall not apply if
16 the taxpayer establishes, by clear and convincing evidence of the type
17 and in the form specified by the commissioner of finance, that: (I) the
18 royalty payment was paid, accrued or incurred to a related member organ-
19 ized under the laws of a country other than the United States; (II) the
20 related member's income from the transaction was subject to a comprehen-
21 sive income tax treaty between such country and the United States; (III)
22 the related member was subject to tax in a foreign nation on a tax base
23 that included the royalty payment paid, accrued or incurred by the
24 taxpayer; (IV) the related member's income from the transaction was
25 taxed in such country at an effective rate of tax at least equal to that
26 imposed by this city; and (V) the royalty payment was paid, accrued or
27 incurred pursuant to a transaction that was undertaken for a valid busi-
28 ness purpose and using terms that reflect an arm's length relationship.
29 (iv) The adjustment required in this subdivision shall not apply if
30 the taxpayer and the commissioner of finance agree in writing to the
31 application or use of alternative adjustments or computations. The
32 commissioner of finance may, in his or her discretion, agree to the
33 application or use of alternative adjustments or computations when he or
34 she concludes that in the absence of such agreement the income of the
35 taxpayer would not be properly reflected.
36 (r) For taxable years beginning on or after January first, two thou-
37 sand four, in the case of a taxpayer that is not an eligible farmer as
38 defined in subsection (n) of section six hundred six of the tax law, a
39 taxpayer shall be allowed with respect to a sport utility vehicle that
40 is not a passenger automobile as defined in paragraph five of subsection
41 (d) of section two hundred eighty-F of the internal revenue code, the
42 deductions allowable under sections one hundred seventy-nine, one
43 hundred sixty-seven and one hundred sixty-eight of the internal revenue
44 code, determined as if such sport utility vehicle were a passenger auto-
45 mobile as defined in such paragraph five.
46 (s) Upon the disposition of property to which subdivision (r) of this
47 section applies, the amount of any gain or loss includible in entire net
48 income shall be adjusted to reflect the modification provided in such
49 subdivision attributable to such property.
50 (t) Entire net income shall not include the amount of any grant
51 received through either the COVID-19 pandemic small business recovery
52 grant program, pursuant to section sixteen-ff of the New York state
53 urban development corporation act, or the small business resilience
54 grant program administered by the department of small business services,
55 to the extent the amount of either such grant is included in federal
56 taxable income.
S. 8578 645
1 § 11-641.1 Computation of alternative entire net income. (a) Alterna-
2 tive entire net income means entire net income as determined pursuant to
3 section 11-641 of this part, except that the deductions described in
4 paragraphs eleven and twelve of subdivision (e) of section 11-641 of
5 this part shall not be allowed.
6 (b) Any election made pursuant to paragraph two of subdivision (b) of
7 section 11-642 of this part with respect to the modification provided
8 for in subdivision (f) of section 11-641 of this part shall be deemed to
9 have been made for purposes of computing alternative entire net income.
10 § 11-642 Allocation. (a) In general. If a taxpayer's entire net
11 income, alternative entire net income, or taxable assets are derived
12 from business carried on within and without the city, the taxpayer shall
13 for purposes of computing allocation percentages compute payroll,
14 receipts, and deposits percentages in accordance with the following
15 rules:
16 (1) The taxpayer shall ascertain the percentage which eighty percent
17 of the total wages, salaries and other personal service compensation
18 during the taxable year of employees within the city, except wages,
19 salaries and other personal service compensation of general executive
20 officers, bears to the total wages, salaries and other personal service
21 compensation during the taxable year of all the taxpayer's employees
22 within and without the city, except wages, salaries and other personal
23 service compensation of general executive officers.
24 (2) (A) The taxpayer shall ascertain the percentage which the receipts
25 of the taxpayer arising during the taxable year from:
26 (i) loans, including a taxpayer's portion of a participation in a
27 loan, and financing leases within the city, and all other business
28 receipts earned within the city, bear to
29 (ii) the total amount of the taxpayer's receipts from loans, including
30 a taxpayer's portion of a participation in a loan, and financing leases
31 and all other business receipts within and without the city.
32 (B) All interest from loans and financing leases is located where the
33 greater portion of income producing activity related to the loan or
34 financing lease occurred; provided, however:
35 (i) In the case of a taxpayer described in paragraph one, two, three,
36 four, five or seven of subdivision (a) of section 11-640 of this part, a
37 loan or financing lease attributed by such taxpayer to a branch without
38 the city shall be presumed to be properly so attributed provided that
39 such presumption may be rebutted if the commissioner of finance demon-
40 strates that the greater portion of income producing activity related to
41 the loan or financing lease did not occur at such branch. Where such
42 presumption has been rebutted, the loan or financing lease shall be
43 presumed to be within the city if the taxpayer had a branch within the
44 city at the time the loan or financing lease was made. The taxpayer may
45 rebut such presumption by demonstrating that the greater portion of
46 income producing activity related to the loan or financing lease did not
47 occur within the city. In the case of a loan or financing lease which is
48 recorded on the books of a place without the city which is not a branch,
49 it shall be presumed that the greater portion of income producing activ-
50 ity related to such loan or financing lease occurred within the city if
51 the taxpayer had a branch within the city at the time the loan or
52 financing lease was made. The taxpayer may rebut such presumption by
53 demonstrating that the greater portion of income producing activity
54 related to the loan or financing lease did not occur within the city.
55 (ii) In the case of a taxpayer described in paragraph six or nine of
56 subdivision (a) of section 11-640 of this part, a loan or financing
S. 8578 646
1 lease attributed by such taxpayer to a bona fide office without the city
2 shall be presumed to be properly so attributed provided that such
3 presumption may be rebutted if the commissioner of finance demonstrates
4 that the greater portion of income producing activity related to the
5 loan or financing lease did not occur without the city.
6 (C) Receipts from lease transactions other than financing leases
7 referred to in subparagraph (B) are located where the property subject
8 to the lease is located.
9 (D) (i) Interest, and fees and penalties in the nature of interest,
10 from bank, credit, travel and entertainment card receivables are earned
11 within the city if the mailing address of the card holder in the records
12 of the taxpayer is in the city; and
13 (ii) Service charges and fees from such cards are earned within the
14 city if the card is serviced in the city; and
15 (iii) Receipts from merchant discounts are earned within the city if
16 the merchant is located within the city.
17 (E) The portion of total net gains and other income from trading
18 activities, including but not limited to foreign exchange, options and
19 financial futures, and from investment activities which is attributed
20 within the city shall be ascertained by multiplying such total net gains
21 and other income by a fraction the numerator of which is the average
22 value of the trading assets and investment assets attributable to the
23 city and the denominator of which is the average value of all trading
24 and investment assets. A trading asset or investment asset is attribut-
25 able to the city if the greater portion of income producing activity
26 related to the trading asset or investment asset occurred within the
27 city.
28 (F) Fees or charges from the issuance of letters of credit, travelers
29 checks and money orders are earned within the city if such letters of
30 credit, travelers checks or money orders are issued within the city.
31 (G) Rules for receipts from certain services to investment companies.
32 (1) For taxable years beginning on or after January first, two thousand
33 one, the portion of receipts received from an investment company arising
34 from the sale of management, administration or distribution services to
35 such investment company determined in accordance with clause two of this
36 subparagraph shall be deemed to arise from services performed within the
37 city, such portion referred to herein as the Staten Island city portion.
38 (2) The Staten Island city portion shall be the product of (i) the
39 total of such receipts from the sale of such services and (ii) a frac-
40 tion. The numerator of that fraction is the sum of the monthly percent-
41 ages, as defined hereinafter, determined for each month of the invest-
42 ment company's taxable year for federal income tax purposes which
43 taxable year ends within the taxable year of the taxpayer, but excluding
44 any month during which the investment company had no outstanding shares.
45 The monthly percentage for each such month is determined by dividing (i)
46 the number of shares in the investment company which are owned on the
47 last day of the month by shareholders that are domiciled in the city by
48 (ii) the total number of shares in the investment company outstanding on
49 that date. The denominator of the fraction is the number of such monthly
50 percentages.
51 (3)(i) For purposes of this subparagraph, the term "domicile", in the
52 case of an individual, shall have the meaning as in chapter seventeen of
53 this title; an estate or trust is domiciled in the city if it is a city
54 resident estate or trust as defined in paragraph three of subdivision
55 (b) of section 11-1705 of this code; a business entity is domiciled in
56 the city if the location of the actual seat of management or control is
S. 8578 647
1 in the city. It shall be presumed that the domicile of a shareholder,
2 with respect to any month, is his, her or its mailing address on the
3 records of the investment company as of the last day of such month.
4 (ii) For purposes of this subparagraph, the term "investment company"
5 means a regulated investment company, as defined in section eight
6 hundred fifty-one of the internal revenue code, and a partnership to
7 which subdivision (a) of section seven thousand seven hundred four of
8 the internal revenue code applies, by virtue of paragraph three of
9 subdivision (c) of section seven thousand seven hundred four of such
10 code, and that meets the requirements of subdivision (b) of section
11 eight hundred fifty-one of such code. This shall be applied to the
12 taxable year for federal income tax purposes of the business entity that
13 is asserted to constitute an investment company that ends within the
14 taxable year of the taxpayer.
15 (iii) For purposes of this subparagraph, the term "receipts from an
16 investment company" includes amounts received directly from an invest-
17 ment company as well as amounts received from the shareholders in such
18 investment company in their capacity as such.
19 (iv) For purposes of this subparagraph, the term "management services"
20 means the rendering of investment advice to an investment company,
21 making determinations as to when sales and purchases of securities are
22 to be made on behalf of an investment company, or the selling or
23 purchasing of securities constituting assets of an investment company,
24 and related activities, but only where such activity or activities are
25 performed pursuant to a contract with the investment company entered
26 into pursuant to subdivision (a) of section fifteen of the federal
27 investment company act of nineteen hundred forty, as amended.
28 (v) For purposes of this subparagraph, the term "distribution
29 services" means the services of advertising, servicing investor
30 accounts, including redemptions, marketing shares or selling shares of
31 an investment company, but, in the case of advertising, servicing inves-
32 tor accounts, including redemptions, or marketing shares, only where
33 such service is performed by a person who is, or was, in the case of a
34 closed end company, also engaged in the service of selling such shares.
35 In the case of an open end company, such service of selling shares must
36 be performed pursuant to a contract entered into pursuant to subdivision
37 (b) of section fifteen of the federal investment company act of nineteen
38 hundred forty, as amended.
39 (vi) For purposes of this subparagraph, the term "administration
40 services" includes clerical, accounting, bookkeeping, data processing,
41 internal auditing, legal and tax services performed for an investment
42 company but only if the provider of such service or services during the
43 taxable year in which such service or services are sold also sells
44 management or distribution services, as defined in clause (v) of this
45 subparagraph, to such investment company.
46 (H) All receipts from the performance of services not described in
47 this paragraph are earned within the city if the services are performed
48 in the city. When a service is performed both within and without the
49 city, the receipts shall be allocated within and without the city in
50 accordance with rules and regulations of the commissioner of finance.
51 (I) All other receipts not described in subparagraphs (B) through (H)
52 of this paragraph shall be attributable within and without the city in
53 accordance with rules and regulations issued by the commissioner of
54 finance.
55 (3) The taxpayer shall ascertain the percentage which the average
56 value of deposits maintained at branches within the city during the
S. 8578 648
1 taxable year, bears to the average value of all the taxpayer's deposits
2 maintained at branches within and without the city during the taxable
3 year.
4 (4) Each percentage computed pursuant to this subsection shall be
5 computed on a cash or accrual basis according to the method of account-
6 ing used for the taxable year. The receipts percentage shall include
7 only receipts which are included in alternative entire net income for
8 the taxable year. The deposits and payroll percentages shall include
9 only deposits and payroll the expenses of which are included in the
10 computation of alternative entire net income for the taxable year.
11 (5) For purposes of this section:
12 (A) The term "bona fide office" means an office at which the taxpayer
13 carries on its business in a regular and systematic manner and which is
14 continuously maintained, occupied and used by employees of the taxpayer.
15 (B) The term "branch" means a bona fide office which is used by the
16 taxpayer on a regular and systematic basis to (i) approve loans, regard-
17 less of whether the approval of certain classes of loans requires review
18 or final approval by another office of the taxpayer, (ii) accept loan
19 repayments, (iii) disburse funds, and (iv) conduct one or more other
20 functions of a banking business.
21 (6) If it shall appear to the commissioner of finance that the allo-
22 cation percentage determined in subdivision (b), (c), or (d) of this
23 section does not properly reflect the activity, business, income or
24 assets of a taxpayer within the city, the commissioner of finance shall
25 be authorized in his discretion to adjust it by (1) excluding one or
26 more of the factors therein, (2) including one or more other factors, or
27 (3) any other similar or different method calculated to effect a fair
28 and proper allocation of the income or assets reasonably attributable to
29 the city.
30 (7) The commissioner of finance from time to time shall publish all
31 rulings of general public interest with respect to any application of
32 the provisions of paragraph six of this subdivision.
33 (b) Allocation of entire net income.
34 (1) If a taxpayer's entire net income is derived from business carried
35 on both within and without the city, the portion thereof which is
36 derived from business carried on within the city shall be determined by
37 multiplying its entire net income by the income allocation percentage
38 determined as follows: add the percentages ascertained under paragraphs
39 one, two and three of subdivision (a) of this section, plus an addi-
40 tional percentage equal to the receipts percentage ascertained under
41 paragraph two of such subdivision and an additional percentage equal to
42 the deposits percentage ascertained under paragraph three of such subdi-
43 vision, and divide the result by the number of percentages so added
44 together.
45 (1-a) Notwithstanding the provisions of paragraph one of this subdivi-
46 sion, each banking corporation described in paragraph nine of subdivi-
47 sion (a) of section 11-640 of this part subject to the tax imposed by
48 this part that substantially provides management, administrative or
49 distribution services to an investment company, as such terms are
50 defined in subparagraph (G) of paragraph two of subdivision (a) of this
51 section, shall determine the portion of its entire net income derived
52 from business carried on within the city by multiplying such income by
53 an income allocation percentage obtained as follows:
54 (A) For taxable years beginning in two thousand nine, the income allo-
55 cation percentage shall be determined by adding together the following
56 percentages:
S. 8578 649
1 (i) the product of eighteen percent and the percentage determined
2 under paragraph one of subdivision (a) of this section,
3 (ii) the product of forty-six percent and the percentage determined
4 under paragraph two of subdivision (a) of this section, and
5 (iii) the product of thirty-six percent and the percentage determined
6 under paragraph three of subdivision (a) of this section.
7 (B) For taxable years beginning in two thousand ten, the income allo-
8 cation percentage shall be determined by adding together the following
9 percentages:
10 (i) the product of sixteen percent and the percentage determined under
11 paragraph one of subdivision (a) of this section,
12 (ii) the product of fifty-two percent and the percentage determined
13 under paragraph two of subdivision (a) of this section, and
14 (iii) the product of thirty-two percent and the percentage determined
15 under paragraph three of subdivision (a) of this section.
16 (C) For taxable years beginning in two thousand eleven, the income
17 allocation percentage shall be determined by adding together the follow-
18 ing percentages:
19 (i) the product of fourteen percent and the percentage determined
20 under paragraph one of subdivision (a) of this section,
21 (ii) the product of fifty-eight percent and the percentage determined
22 under paragraph two of subdivision (a) of this section, and
23 (iii) the product of twenty-eight percent and the percentage deter-
24 mined under paragraph three of subdivision (a) of this section.
25 (D) For taxable years beginning in two thousand twelve, the income
26 allocation percentage shall be determined by adding together the follow-
27 ing percentages:
28 (i) the product of twelve percent and the percentage determined under
29 paragraph one of subdivision (a) of this section,
30 (ii) the product of sixty-four percent and the percentage determined
31 under paragraph two of subdivision (a) of this section, and
32 (iii) the product of twenty-four percent and the percentage determined
33 under paragraph three of subdivision (a) of this section.
34 (E) For taxable years beginning in two thousand thirteen, the income
35 allocation percentage shall be determined by adding together the follow-
36 ing percentages:
37 (i) the product of ten percent and the percentage determined under
38 paragraph one of subdivision (a) of this section,
39 (ii) the product of seventy percent and the percentage determined
40 under paragraph two of subdivision (a) of this section, and
41 (iii) the product of twenty percent and the percentage determined
42 under paragraph three of subdivision (a) of this section.
43 (F) For taxable years beginning in two thousand fourteen, the income
44 allocation percentage shall be determined by adding together the follow-
45 ing percentages:
46 (i) the product of eight percent and the percentage determined under
47 paragraph one of subdivision (a) of this section,
48 (ii) the product of seventy-six percent and the percentage determined
49 under paragraph two of subdivision (a) of this section, and
50 (iii) the product of sixteen percent and the percentage determined
51 under paragraph three of subdivision (a) of this section.
52 (G) For taxable years beginning in two thousand fifteen, the income
53 allocation percentage shall be determined by adding together the follow-
54 ing percentages:
55 (i) the product of six percent and the percentage determined under
56 paragraph one of subdivision (a) of this section,
S. 8578 650
1 (ii) the product of eighty-two percent and the percentage determined
2 under paragraph two of subdivision (a) of this section, and
3 (iii) the product of twelve percent and the percentage determined
4 under paragraph three of subdivision (a) of this section.
5 (H) For taxable years beginning in two thousand sixteen, the income
6 allocation percentage shall be determined by adding together the follow-
7 ing percentages:
8 (i) the product of four percent and the percentage determined under
9 paragraph one of subdivision (a) of this section,
10 (ii) the product of eighty-eight percent and the percentage determined
11 under paragraph two of subdivision (a) of this section, and
12 (iii) the product of eight percent and the percentage determined under
13 paragraph three of subdivision (a) of this section.
14 (I) For taxable years beginning in two thousand seventeen, the income
15 allocation percentage shall be determined by adding together the follow-
16 ing percentages:
17 (i) the product of two percent and the percentage determined under
18 paragraph one of subdivision (a) of this section,
19 (ii) the product of ninety-four percent and the percentage determined
20 under paragraph two of subdivision (a) of this section, and
21 (iii) the product of four percent and the percentage determined under
22 paragraph three of subdivision (a) of this section.
23 (J) For taxable years beginning after two thousand seventeen, the
24 income allocation percentage shall be the percentage determined under
25 paragraph two of subdivision (a) of this section.
26 (K) The commissioner shall promulgate rules necessary to implement the
27 provisions of this paragraph under such circumstances where any of the
28 percentages to be determined under paragraph one, two or three of subdi-
29 vision (a) of this section cannot be determined because the taxpayer has
30 no compensation, receipts or deposits within or without the city.
31 (2) (A) In lieu of the modification provided for in subdivision (f) of
32 section 11-641 of this part, relating to a modification for the adjusted
33 eligible net income of an international banking facility, a taxpayer
34 may, in the manner prescribed by the commissioner of finance, elect to
35 modify on an annual basis its income allocation percentage in the manner
36 described in clauses (i), (ii) and (iii) of this paragraph below:
37 (i) wages, salaries and other personal service compensation properly
38 attributable to the production of eligible gross income of the taxpay-
39 er's international banking facility shall not be included in the compu-
40 tation of wages, salaries and other personal service compensation of
41 employees within the city,
42 (ii) receipts properly attributable to the production of eligible
43 gross income of the taxpayer's international banking facility shall not
44 be included in the computation of receipts within the city, and
45 (iii) deposits from foreign persons which are properly attributable to
46 the production of eligible gross income of the taxpayer's international
47 banking facility shall not be included in the computation of deposits
48 maintained at branches within the city.
49 (B) For purposes of this paragraph, the term "eligible gross income"
50 refers to such term as set out in subdivision (f) of section 11-641 of
51 this part except that the term "foreign person" as defined in paragraph
52 eight of such subdivision (f) shall not include a foreign branch of the
53 taxpayer and in no event shall transactions between the taxpayer's
54 international banking facility and its foreign branches be considered.
55 (c) Allocation of alternative entire net income. If a taxpayer's
56 alternative entire net income is derived from business carried on both
S. 8578 651
1 within and without the city, the portion thereof which is derived from
2 business carried on within the city shall be determined by multiplying
3 its alternative entire net income by the alternative entire net income
4 allocation percentage determined as follows:
5 (1) Recompute the payroll percentage under paragraph one of subdivi-
6 sion (a) of this section without giving consideration to the phrase
7 "eighty percent of," add to the resulting percentage the percentages
8 ascertained under paragraphs two and three of such subdivision, and
9 divide the result by the number of percentages so added together.
10 (2) When an election has been made pursuant to paragraph two of subdi-
11 vision (b) of this section, relating to international banking facili-
12 ties, the taxpayer shall make the modifications described in such para-
13 graph for purposes of its alternative entire net income allocation
14 percentage.
15 (d) Allocation of taxable assets. If the taxpayer's taxable assets are
16 derived from business carried on both within and without the city, the
17 portion thereof which is derived from business carried on within the
18 city shall be determined by multiplying its taxable assets by an asset
19 allocation percentage determined in the same manner as the income allo-
20 cation percentage under subdivision (b) of this section is determined
21 when the election provided for in paragraph two of such subdivision has
22 been made, except that the modifications described in clauses (i), (ii)
23 and (iii) of subparagraph (A) of such paragraph shall not be made.
24 § 11-643 Computation of tax for taxable years ending on or before
25 December thirty-first, nineteen hundred seventy-three. For taxable
26 years ending on or before December thirty-first, nineteen hundred seven-
27 ty-three, the tax imposed by section 11-639 of this part shall be the
28 greater of the following computations:
29 (a) Basic tax. Five and sixty-three one-hundredths percent of the
30 taxpayer's entire net income, or the portion thereof allocated to this
31 city, for the taxable year or part thereof.
32 (b) Alternative minimum tax. If the tax under subdivision (a) of this
33 section is less than any of the following amounts, the tax shall be the
34 largest of the following amounts:
35 (1) Except for a savings bank and savings and loan association, one
36 and one-quarter mills upon each dollar of such part of the taxpayer's
37 issued capital stock on the last day of the taxable year, at its face
38 value, but if such taxpayer has stock without par value, such stock
39 shall be taken at its actual or market value, and not less than five
40 dollars per share, as may be determined by the commissioner of finance,
41 as the gross income of such taxpayer derived from business carried on
42 within the city, during such taxable year, bears to its gross income
43 derived from all business, both within and without the city during said
44 year; except that if the period covered by the return is other than
45 twelve months, the tax shall be prorated on the basis of the number of
46 months or major portions thereof included in the return. For purposes of
47 this paragraph, the term "gross income" shall have the same meaning as
48 it has in the laws of the United States relating to federal income
49 taxes.
50 (2) For a savings bank and savings and loan association, one and
51 forty-three one-hundredths percent of the interest or dividends credited
52 by it to depositors or shareholders during the taxable year, provided
53 that, in determining such amount, each interest or dividend credit to a
54 depositor or shareholder shall be deemed to be the interest or dividend
55 actually credited or the interest or dividend which would have been
S. 8578 652
1 credited if it had been computed and credited at the rate of three and
2 one-half percent per annum, whichever is less.
3 (3) Twelve and one-half dollars.
4 § 11-643.1 Computation of tax for taxable years beginning on or after
5 January first, nineteen hundred seventy-four and ending on or before
6 December thirty-first, nineteen hundred seventy-four. For taxable years
7 beginning on or after January first, nineteen hundred seventy-four and
8 ending on or before December thirty-first, nineteen hundred seventy-
9 four, the tax imposed by section 11-639 of this part shall be the great-
10 er of the following computations:
11 (a) Basic tax. Six and seven hundred fifty-six one-thousandths
12 percent of the taxpayer's entire net income, or the portion thereof
13 allocated to this city, for the taxable year, or part thereof.
14 (b) Alternative minimum tax. If the tax under subdivision (a) of
15 this section is less than any of the following amounts, the tax shall be
16 the largest of the following amounts:
17 (1) Except for a savings bank and savings and loan association, one
18 and one-half mills upon each dollar of such part of the taxpayer's
19 issued capital stock on the last day of the taxable year, at its face
20 value, but if such taxpayer has stock without par value, such stock
21 shall be taken at its actual or market value, and not less than five
22 dollars per share, as may be determined by the commissioner of finance,
23 as the gross income of such taxpayer derived from business carried on
24 within the city, during such taxable year bears to its gross income
25 derived from all business, both within and without the city during said
26 year; except that if the period covered by the return is other than
27 twelve months, the tax shall be prorated on the basis of the number of
28 months or major portions thereof included in the return. For purposes
29 of this paragraph, the term "gross income" shall have the same meaning
30 as it has in the laws of the United States relating to federal income
31 taxes.
32 (2) For a savings bank and savings and loan association, one and seven
33 hundred sixteen one-thousandths percent of the interest or dividends
34 credited by it to depositors or shareholders during the taxable year,
35 provided that, in determining such amount, each interest or dividend
36 credit to a depositor or shareholder shall be deemed to be the interest
37 or dividend actually credited or the interest or dividend which would
38 have been credited if it had been computed and credited at the rate of
39 three and one-half percent per annum, whichever is less.
40 (3) Fifteen dollars.
41 § 11-643.2 Computation of tax for taxable years beginning in nineteen
42 hundred seventy-three and ending in nineteen hundred seventy-four. For
43 each taxable year beginning in nineteen hundred seventy-three and ending
44 in nineteen hundred seventy-four, two tentative taxes shall be computed,
45 the first as provided in section 11-643 and the second as provided in
46 section 11-643.1 of this part, and the tax for each such year shall be
47 the sum of that proportion of each tentative tax which the number of
48 days in nineteen hundred seventy-three and the number of days in nine-
49 teen hundred seventy-four, respectively, which fall within the taxable
50 year, bears to the number of days in the entire taxable year.
51 § 11-643.3 Computation of tax for taxable years beginning on or after
52 January first, nineteen hundred seventy-five and before January first,
53 nineteen hundred eighty-five. For taxable years beginning on or after
54 January first, nineteen hundred seventy-five and before January first,
55 nineteen hundred eighty-five, the tax imposed by section 11-639 of this
56 part shall be the greater of the following computations:
S. 8578 653
1 (a) Basic tax. (1) Except for a savings bank and savings and loan
2 association, thirteen and eight hundred twenty-three one-thousandths
3 percent of the taxpayer's entire net income, or the portion thereof
4 allocated to this city, for the taxable year, or part thereof.
5 (2) For a savings bank and savings and loan association, twelve and
6 one hundred thirty-four thousandths percent of the taxpayer's entire net
7 income, or the portion thereof allocated to this city, for the taxable
8 year, or part thereof.
9 (b) Alternative minimum tax. If the tax under subdivision (a) of
10 this section is less than any of the following amounts, the tax shall be
11 the largest of the following amounts:
12 (1) Except for a savings bank and savings and loan association, two
13 and six-tenths mills upon each dollar of such part of the taxpayer's
14 issued capital stock on the last day of the taxable year, at its face
15 value, but if such taxpayer has stock without par value, such stock
16 shall be taken at its actual or market value, and not less than five
17 dollars per share, as may be determined by the commissioner of finance,
18 as the gross income of such taxpayer derived from business carried on
19 within the city during such taxable year bears to its gross income
20 derived from all business, both within and without the city during said
21 year; except that if the period covered by the return is other than
22 twelve months, the tax shall be prorated on the basis of the number of
23 months or major portions thereof included in the return. For purposes
24 of this paragraph, the term "gross income" shall have the same meaning
25 as it has in the laws of the United States relating to federal income
26 taxes.
27 (2) Except as otherwise provided in paragraph three of this subdivi-
28 sion, for a savings bank and savings and loan association, two and five
29 hundred seventy-four one-thousandths percent of the interest or divi-
30 dends credited by it to depositors or shareholders during any taxable
31 year, provided that, in determining such amount, each interest or divi-
32 dend credit to a depositor or shareholder shall be deemed to be the
33 interest or dividend actually credited or the interest or dividend which
34 would have been credited if it had been computed and credited at the
35 rate of three and one-half percent per annum, whichever is less.
36 (3) (i) For a savings bank and savings and loan association, for any
37 quarterly accounting period in which such savings bank or savings and
38 loan association credits or pays dividends to its depositors or share-
39 holders on or after the first day of October, nineteen hundred eighty-
40 one but before the first day of July, nineteen hundred eighty-six, and
41 after such credit or payment the net worth of such savings bank or
42 savings and loan association is less than five percent of the amount due
43 depositors, one and eight hundred twenty-four one-thousandths percent of
44 the interest or dividends credited by it to a depositor or shareholder
45 during such accounting period, provided that, in determining such
46 amount, each interest or dividend credit to depositors or shareholders
47 shall be deemed to be the interest or dividend actually credited or the
48 interest or dividend which would have been credited if it had been
49 computed and credited at the rate of three and one-half percent per
50 annum, whichever is less. In determining the lesser of the amount of
51 interest or dividends actually credited to depositors or shareholders or
52 the amount of interest or dividends which would have been credited if
53 such interest or dividends had been computed and credited at the rate of
54 three and one-half percent per annum, the provisions of subparagraph
55 (ii) of this paragraph shall not be considered.
S. 8578 654
1 (ii) For purposes of the computation provided for in subparagraph (i)
2 of this paragraph, except where the tax computed under subparagraph (i)
3 of this paragraph is computed as if the interest or dividends were
4 computed and credited at the rate of three and one-half percent per
5 annum, that portion of the interest or dividends credited on or after
6 the first day of October, nineteen hundred eighty-one but before the
7 first day of July, nineteen hundred eighty-six by:
8 (A) a savings bank to a depositor or shareholder which is attributable
9 to an increase or a deemed increase in the gross earnings, surplus fund,
10 or net worth of the savings bank, which increase became available for
11 interest or dividends upon the prior written approval of the superinten-
12 dent of banks pursuant to the provisions of subdivision four of section
13 two hundred forty-four of the banking law; or
14 (B) a savings and loan association to a depositor or shareholder which
15 is attributable to an increase or a deemed increase in gross income,
16 undivided profits, surplus account or net worth of the savings and loan
17 association, which increase became available for interest or dividends
18 upon the prior written approval of the superintendent of banks pursuant
19 to the provisions of subdivision two of section three hundred eighty-
20 seven of the banking law; or
21 (C) a federal savings bank or a federal savings and loan association
22 to a depositor or shareholder, which would have required and received
23 prior written approval of the superintendent of banks in respect to
24 increases in gross income, gross earnings, undivided profits, surplus
25 funds, surplus accounts or net worth available for dividends pursuant to
26 the provisions of subdivision four of section two hundred forty-four of
27 the banking law and subdivision two of section three hundred eighty-sev-
28 en of the banking law, respectively, were the provisions of sections two
29 hundred forty-four and three hundred eighty-seven of the banking law
30 applicable to federal savings banks and federal savings and loan associ-
31 ations shall not be considered to have been credited to depositors or
32 shareholders. Where the tax computed under subparagraph (i) of this
33 paragraph is computed as if the interest or dividends were computed and
34 credited at the rate of three and one-half percent per annum, the amount
35 of interest or dividends which shall not be considered to have been
36 credited to depositors or shareholders is an amount which bears the same
37 ratio to the interest or dividends which would have been credited at the
38 rate of three and one-half percent per annum as the amount of that
39 portion of the interest or dividends paid or credited on or after the
40 first day of October, nineteen hundred eighty-one but before the first
41 day of July, nineteen hundred eighty-six, which is attributable to an
42 increase or deemed increase in gross income, gross earnings, undivided
43 profits, surplus funds, surplus account or net worth available for divi-
44 dends pursuant to the provisions of subdivision four of section two
45 hundred forty-four of the banking law or subdivision two of section
46 three hundred eighty-seven of the banking law, bears to the amount of
47 interest or dividends actually credited. For purposes of this clause,
48 the determination of whether a federal savings bank or federal savings
49 and loan association would have required and received prior written
50 approval of the superintendent of banks shall be made by the superinten-
51 dent of banks, upon application and upon such forms as he or she may
52 require, by applying the provision of subdivision four of section two
53 hundred forty-four of the banking law, as if such provisions were appli-
54 cable to federal savings banks, and subdivision two of section three
55 hundred eighty-seven of the banking law, as if such provisions were
56 applicable to federal savings and loan associations, and the superinten-
S. 8578 655
1 dent of banks may require and examine such information as he or she may
2 deem necessary to make such determinations.
3 (4) (i) Except for a savings bank and savings and loan association,
4 twenty-five dollars.
5 (ii) For a savings bank and savings and loan association, twenty
6 dollars.
7 § 11-643.4 Computation of tax for taxable years beginning in nineteen
8 hundred seventy-four and ending in nineteen hundred seventy-five. For
9 each taxable year beginning in nineteen hundred seventy-four and ending
10 in nineteen hundred seventy-five, two tentative taxes shall be computed,
11 the first as provided in section 11-643.1 and the second as provided in
12 section 11-643.3 of this part, and the tax for each such year shall be
13 the sum of that proportion of each tentative tax which the number of
14 days in nineteen hundred seventy-four and the number of days in nineteen
15 hundred seventy-five, respectively, which fall within the taxable year,
16 bears to the number of days in the entire taxable year.
17 § 11-643.5 Computation of tax for taxable years beginning on or after
18 January first, nineteen hundred eighty-five. For taxable years beginning
19 on or after January first, nineteen hundred eighty-five, the tax imposed
20 by section 11-639 of this part shall be the greater of the following
21 computations:
22 (a) Basic tax. Nine percent of the taxpayer's entire net income, or
23 the portion thereof allocated to the city, for the taxable year or part
24 thereof.
25 (b) Alternative minimum tax. If the tax under subdivision (a) of this
26 section is less than any of the following amounts, the tax shall be the
27 larger of the following amounts:
28 (1) For taxable years beginning before two thousand eleven, except in
29 the case of a corporation organized under the laws of a country other
30 than the United States, one-tenth of a mill upon each dollar of taxable
31 assets, or the portion thereof allocated to the city. For taxable years
32 beginning after two thousand ten, except in the case of a taxpayer
33 described in clause (i), (ii), or (iii) of this subparagraph, one-tenth
34 of a mill upon each dollar of taxable assets, or the portion thereof
35 allocated to the city.
36 (i) In the case of a taxpayer whose net worth ratio is less than five
37 percent but greater than or equal to four percent and whose total assets
38 are comprised of thirty-three percent or more of mortgages, one-twenty-
39 fifth of a mill upon each dollar of taxable assets, or the portion ther-
40 eof allocated to the city.
41 (ii) In the case of a taxpayer whose net worth ratio is less than four
42 percent and whose total assets are comprised of thirty-three percent or
43 more of mortgages, one-fiftieth of a mill upon each dollar of taxable
44 assets, or the portion thereof allocated to the city.
45 (iii) A taxpayer, whether or not a qualified institution as defined in
46 subparagraph (B) of paragraph five of subsection (f) of section four
47 hundred six of the federal national housing act, as amended, or as
48 defined in paragraph two of subsection (i) of section thirteen of the
49 federal deposit insurance act, as amended, shall not be subject to the
50 provisions of this paragraph for that portion of the taxable year in
51 which it had outstanding net worth certificates issued in accordance
52 with paragraph five of subsection (f) of section four hundred six of the
53 federal national housing act, as amended, or issued in accordance with
54 subsection (i) of section thirteen of the federal deposit insurance act,
55 as amended.
S. 8578 656
1 (iv) For the purposes of this part: (A) the term "taxable assets"
2 shall mean the average value of total assets reduced by any amount of
3 money or other property received from or attributable to amounts
4 received from the federal deposit insurance corporation pursuant to
5 subsection (c) of section thirteen of the federal deposit insurance act,
6 as amended, or the federal savings and loan insurance corporation pursu-
7 ant to paragraph one, two, three or four of subsection (f) of section
8 four hundred six of the federal national housing act, as amended. Total
9 assets are those assets which are properly reflected on a balance sheet
10 the income or expenses of which are properly reflected, or would have
11 been properly reflected if not fully depreciated or expensed or depreci-
12 ated or expensed to a nominal amount, in the computation of alternative
13 entire net income for the taxable year or in the computation of the
14 eligible net income of the taxpayer's international banking facility for
15 the taxable year.
16 (B) The term "net worth ratio" shall mean the percentage of net worth
17 to assets on the last day of the taxable year. The term "net worth"
18 means the sum of preferred stock, common stock, surplus, capital
19 reserves, undivided profits, mutual capital certificates, reserve for
20 contingencies, reserve for loan losses and reserve for security losses
21 minus assets classified loss. The term "assets" means the sum of mort-
22 gage loans, nonmortgage loans, repossessed assets, real estate held for
23 development or investment or resale, cash, deposits, investment securi-
24 ties, fixed assets and other assets, such as financial futures, goodwill
25 and other intangible assets, minus assets classified loss. In no event
26 shall assets be reduced by reserves for losses.
27 (C) The term "mortgages" shall mean loans secured by real property
28 within or without the state, participations in and securities collater-
29 alized by pools of residential mortgages, whether or not issued or guar-
30 anteed by a United States government agency, and loans secured by stock
31 in a cooperative housing corporation. The percentage of total assets
32 comprised of mortgages shall be an amount equal to the ratio of the
33 average of the four quarterly balances of such mortgages ending within
34 the taxable year, to the average of the four quarterly balances of all
35 assets ending within the taxable year. Such quarterly balances shall be
36 computed in the same manner as the report of condition required for
37 federal deposit insurance corporation or federal savings and loan insur-
38 ance corporation purposes, whether or not such report is required. For
39 taxable periods of less than one year, the taxpayer shall compute such
40 ratio using the number of such quarterly balances ending within such
41 taxable period.
42 (2) For taxable years beginning before two thousand eleven, in the
43 case of a corporation organized under the laws of a country other than
44 the United States, (i) two and six-tenths mills upon each dollar of such
45 part of the taxpayer's issued capital stock on the last day of the taxa-
46 ble year, at its face value, but if such taxpayer has stock without par
47 value, such stock shall be taken at its actual or market value, and not
48 less than five dollars per share, as may be determined by the commis-
49 sioner of finance, or (ii) if the taxpayer does not have issued capital
50 stock, two and six-tenths mills upon each dollar of such part of the
51 amount by which its average total assets exceeds its average total
52 liabilities, as the gross income of such taxpayer derived from business
53 carried on within the city during such taxable year bears to its gross
54 income derived from all business, both within and without the city
55 during said year; except that if the period covered by the return is
56 other than twelve months, the tax shall be prorated on the basis of the
S. 8578 657
1 number of months or major portions thereof included in the return. For
2 purposes of this paragraph, the term "gross income" shall have the same
3 meaning as it has in the laws of the United States relating to federal
4 income taxes.
5 (3) Three percent of the taxpayer's alternative entire net income, or
6 portion thereof allocated to the city, for the taxable year, or part
7 thereof.
8 (4) One hundred twenty-five dollars.
9 § 11-643.7. Relocation and employment assistance credit. (a) In addi-
10 tion to any other credit allowed by this part, a taxpayer that has
11 obtained the certifications required by chapter six-B of title twenty-
12 two of the code of the preceding municipality shall be allowed a credit
13 against the tax imposed by this part. The amount of the credit shall be
14 the amount determined by multiplying five hundred dollars or, in the
15 case of a taxpayer that has obtained pursuant to chapter six-B of such
16 title twenty-two a certification of eligibility dated on or after July
17 first, nineteen hundred ninety-five, one thousand dollars or, in the
18 case of an eligible business that has obtained pursuant to chapter six-B
19 of such title twenty-two a certification of eligibility dated on or
20 after July first, two thousand, for a relocation to eligible premises
21 located within a revitalization area defined in subdivision (n) of
22 section 22-621 of the code of the preceding municipality, three thousand
23 dollars, by the number of eligible aggregate employment shares main-
24 tained by the taxpayer during the taxable year with respect to partic-
25 ular premises to which the taxpayer has relocated; provided, however,
26 with respect to a relocation for which no application for a certificate
27 of eligibility is submitted prior to July first, two thousand three to
28 eligible premises that are not within a revitalization area, if the date
29 of such relocation as determined pursuant to subdivision (j) of section
30 22-621 of the code of the preceding municipality is before July first,
31 nineteen hundred ninety-five, the amount to be multiplied by the number
32 of eligible aggregate employment shares shall be five hundred dollars,
33 and with respect to a relocation for which no application for a certif-
34 icate of eligibility is submitted prior to July first, two thousand
35 three, to eligible premises that are within a revitalization area, if
36 the date of such relocation as determined pursuant to subdivision (j) of
37 such section is before July first, nineteen hundred ninety-five, the
38 amount to be multiplied by the number of eligible aggregate employment
39 shares shall be five hundred dollars, and if the date of such relocation
40 as determined pursuant to subdivision (j) of such section is on or after
41 July first, nineteen hundred ninety-five, and before July first, two
42 thousand, one thousand dollars; provided, however, that no credit shall
43 be allowed for the relocation of any retail activity or hotel services;
44 and provided that in the case of an eligible business that has obtained
45 pursuant to chapter six-B of such title twenty-two certifications of
46 eligibility for more than one relocation, the portion of the total
47 amount of eligible aggregate employment shares to be multiplied by the
48 dollar amount specified in this subdivision for each such certification
49 of a relocation shall be the number of total attributed eligible aggre-
50 gate employment shares determined with respect to such relocation pursu-
51 ant to subdivision (o) of section 22-621 of the code of the preceding
52 municipality. For purposes of this section, the terms "eligible aggre-
53 gate employment shares," "relocate," "retail activity" and "hotel
54 services" shall have the meanings ascribed by section 22-621 of the code
55 of the preceding municipality.
S. 8578 658
1 (b) The credit allowed under this section with respect to eligible
2 aggregate employment shares maintained with respect to particular prem-
3 ises to which the taxpayer has relocated shall be allowed for the first
4 taxable year during which such eligible aggregate employment shares are
5 maintained with respect to such premises and for any of the twelve
6 succeeding taxable years during which eligible aggregate employment
7 shares are maintained with respect to such premises; provided that the
8 credit allowed for the twelfth succeeding taxable year shall be calcu-
9 lated by multiplying the number of eligible aggregate employment shares
10 maintained with respect to such premises in the twelfth succeeding taxa-
11 ble year by the lesser of one and a fraction the numerator of which is
12 such number of days in the taxable year of relocation less the number of
13 days the eligible business maintained employment shares in the eligible
14 premises in the taxable year of relocation and the denominator of which
15 is the number of days in such twelfth succeeding taxable year during
16 which such eligible aggregate employment shares are maintained with
17 respect to such premises. Except as provided in subdivision (d) of this
18 section, if the amount of the credit allowable under this section for
19 any taxable year exceeds the tax imposed for such year, the excess may
20 be carried over, in order, to the five immediately succeeding taxable
21 years and, to the extent not previously deductible, may be deducted from
22 the taxpayer's tax for such years.
23 (c) The credit allowable under this section shall be deducted after
24 the credit allowed by section 11-643.8, but prior to the deduction of
25 any other credit allowed by this part.
26 (d) In the case of a taxpayer that has obtained a certification of
27 eligibility pursuant to chapter six-B of title twenty-two of the code of
28 the preceding municipality dated on or after July first, two thousand
29 for a relocation to eligible premises located within the revitalization
30 area defined in subdivision (n) of section 22-621 of the code of the
31 preceding municipality, the credits allowed under this section, or in
32 the case of a taxpayer that has relocated more than once, the portion of
33 such credits attributed to such certification of eligibility pursuant to
34 subdivision (a) of this section, against the tax imposed by this chapter
35 for the taxable year of such relocation and for the four taxable years
36 immediately succeeding the taxable year of such relocation, shall be
37 deemed to be overpayments of tax by the taxpayer to be credited or
38 refunded, without interest, in accordance with the provisions of section
39 11-677 of this chapter. For such taxable years, such credits or portions
40 thereof may not be carried over to any succeeding taxable year;
41 provided, however, that this subdivision shall not apply to any relo-
42 cation for which an application for a certification of eligibility was
43 not submitted prior to July first, two thousand three, unless the date
44 of such relocation is on or after July first, two thousand.
45 § 11-643.8 Credit relating to certain distributions from partnerships.
46 (a) If a banking corporation is a partner in an unincorporated business
47 taxable under chapter five of this title, and is required to include in
48 entire net income its distributive share of income, gain, loss and
49 deductions of, or guaranteed payments from, such unincorporated busi-
50 ness, such banking corporation shall be allowed a credit against the tax
51 imposed by this part equal to the lesser of the amounts determined in
52 paragraphs one and two of this subdivision:
53 (1) The amount determined in this paragraph is the product of (A) the
54 sum of (i) the tax imposed by chapter five of this title on the unincor-
55 porated business for its taxable year ending within or with the taxable
56 year of the banking corporation and paid by the unincorporated business
S. 8578 659
1 and (ii) the amount of any credit or credits taken by the unincorporated
2 business under section 11-503 of this title, except the credit allowed
3 by subdivision (b) of such section, for its taxable year ending within
4 or with the taxable year of the banking corporation, to the extent that
5 such credits do not reduce such unincorporated business's tax below
6 zero, and (B) a fraction, the numerator of which is the net total of the
7 banking corporation's distributive share of income, gain, loss and
8 deductions of, and guaranteed payments from, the unincorporated business
9 for such taxable year and the denominator of which is the sum, for such
10 taxable year, of the net total distributive shares of income, gain, loss
11 and deductions of, and guaranteed payments to, all partners of the unin-
12 corporated business for whom or which such net total, as separately
13 determined for each partner, is greater than zero.
14 (2) The amount determined in this paragraph is the product of (A) the
15 excess of (i) the basic tax computed pursuant to subdivision (a) of
16 section 11-643.5 of this part, without allowance of any credits allowed
17 by this part, over (ii) the basic tax so computed, determined as if the
18 banking corporation had no such distributive share or guaranteed
19 payments with respect to the unincorporated business, and (B) a frac-
20 tion, the numerator of which is four and the denominator of which is
21 nine, provided, however, that the amounts computed in clauses (i) and
22 (ii) of this paragraph shall be computed with the following modifica-
23 tions:
24 (I) if, prior to taking into account any distributive share or guaran-
25 teed payments from any unincorporated business, the entire net income of
26 the partner is less than zero, such entire net income shall be treated
27 as zero; and
28 (II) if such partner's net total distributive share of income, gain,
29 loss and deductions of, and guaranteed payments from any unincorporated
30 business is less than zero, such net total shall be treated as zero.
31 The amount determined in this paragraph shall not be less than zero.
32 (b) (1) Notwithstanding anything to the contrary in subdivision (a) of
33 this section, in the case of a banking corporation that, before the
34 application of this section or any other credit allowed by this part, is
35 liable for the basic tax computed under subdivision (a) of section
36 11-643.5 of this part, the credit or the sum of the credits that may be
37 taken by such banking corporation for a taxable year under this section
38 with respect to an unincorporated business or unincorporated businesses
39 in which it is a partner shall not exceed the tax so computed, without
40 allowance of any credits allowed by this part, multiplied by a fraction
41 the numerator of which is four and the denominator of which is nine. If
42 the credit allowed under this subdivision or the sum of such credits
43 exceeds the product of such tax and such fraction, the amount of the
44 excess may be carried forward, in order, to each of the seven immediate-
45 ly succeeding taxable years and, to the extent not previously taken,
46 shall be allowed as a credit in each of such years. In applying such
47 provisions, the credit determined for the taxable year under subdivision
48 (a) of this section shall be taken before taking any credit carryforward
49 pursuant to this paragraph and the credit carryforward attributable to
50 the earliest taxable year shall be taken before taking a credit carry-
51 forward attributable to a subsequent taxable year.
52 (2) Notwithstanding anything to the contrary in subdivision (a) of
53 this section, in the case of a banking corporation that, before the
54 application of this section or any other credit allowed by this part, is
55 liable for the alternative minimum tax on alternative entire net income
56 under paragraph three of subdivision (b) of section 11-643.5 of this
S. 8578 660
1 part, the maximum credit that may be taken in any taxable year is the
2 amount that will reduce the tax so computed, without allowance of any
3 credits allowed by this part, to zero. For purposes of this paragraph
4 each dollar of credit shall be applied so as to reduce such tax by
5 seventy-five cents. If the amount of credit allowed under this section
6 or the sum of such credits exceeds the amount that may be taken against
7 such tax, the amount of the excess may be carried forward, in order, to
8 each of the seven immediately succeeding taxable years and, to the
9 extent not previously taken, shall be allowed as a credit in each of
10 such years. In applying such provisions, the credit determined for the
11 taxable year under subdivision (a) of this section shall be taken before
12 taking any credit carryforward pursuant to this subdivision and the
13 credit carryforward attributable to the earliest taxable year shall be
14 taken before taking a credit carryforward attributable to a subsequent
15 taxable year.
16 (3) No credit under this section may be taken in a taxable year by a
17 taxpayer that, in the absence of such credit, would be liable for the
18 tax computed on the basis of taxable assets under paragraph one of this
19 subdivision, the tax computed on the basis of issued capital stock under
20 paragraph two of this subdivision or the fixed-dollar minimum tax under
21 paragraph four of subdivision (b) of section 11-643.5 of this part.
22 (c) For banking corporations that file a report on a combined basis
23 pursuant to subdivision (f) of section 11-646 of this part, the credit
24 allowed by this section shall be computed as if the combined group were
25 the partner in each unincorporated business from which any of the
26 members of such group had a distributive share or guaranteed payments,
27 provided, however, if more than one member of the combined group is a
28 partner in the same unincorporated business, for purposes of the calcu-
29 lation required in paragraph one of subdivision (a) of this section, the
30 numerator of the fraction described in subparagraph (B) of such para-
31 graph one shall be the sum of the net total distributive shares of
32 income, gain, loss and deductions of, and guaranteed payments from, the
33 unincorporated business of all of the partners of the unincorporated
34 business within the combined group for which such net total, as sepa-
35 rately determined for each partner, is greater than zero, and the denom-
36 inator of such fraction shall be the sum of the net total distributive
37 shares of income, gain, loss and deductions of, and guaranteed payments
38 from, the unincorporated business of all partners in the unincorporated
39 business for whom or which such net total, as separately determined for
40 each partner, is greater than zero.
41 (d) The credit allowed by this section shall not be allowed to a part-
42 ner in an unincorporated business with respect to any tax paid by the
43 unincorporated business under chapter five of this title for any taxable
44 year beginning before July first, nineteen hundred ninety-four.
45 (e) Notwithstanding any other provisions of this part, the credit
46 allowable under this section shall be taken prior to the taking of any
47 other credit allowed by this part. Notwithstanding any other provisions
48 of this part, the application of this section shall not change the basis
49 on which the taxpayer's tax is computed under subdivision (a) or (b) of
50 section 11-643.5 of this part.
51 § 11-644 Declarations of estimated tax. (a) Requirements of declara-
52 tion. Every taxpayer subject to the tax imposed by subdivision (a) of
53 section 11-639 of this part shall make a declaration of its estimated
54 tax for the current taxable year, containing such information as the
55 commissioner of finance may prescribe by regulations or instructions, if
S. 8578 661
1 such estimated tax can reasonably be expected to exceed one thousand
2 dollars.
3 (b) Definition of estimated tax. The term "estimated tax" means the
4 amount which a taxpayer estimates to be the tax imposed by subdivision
5 (a) of section 11-639 of this part for the current taxable year, less
6 the amount which it estimates to be the sum of any credits allowable
7 against the tax.
8 (c) Time for filing declaration. A declaration of estimated tax shall
9 be filed on or before June fifteenth of the current taxable year in the
10 case of a taxpayer which reports on the basis of a calendar year, except
11 that if the requirements of subdivision (a) of this section are first
12 met:
13 (1) after May thirty-first and before September first of such current
14 taxable year, the declaration shall be filed on or before September
15 fifteenth, or
16 (2) after August thirty-first and before December first of such
17 current taxable year, the declaration shall be filed on or before Decem-
18 ber fifteenth.
19 (d) Amendments of declaration. A taxpayer may amend a declaration
20 under regulations of the commissioner of finance.
21 (e) Return as declaration. If, on or before February fifteenth of the
22 succeeding year in the case of a taxpayer whose taxable year is a calen-
23 dar year, a taxpayer files its return for the year for which the decla-
24 ration is required, and pays therewith the balance, if any, of the full
25 amount of the tax shown to be due on the return:
26 (1) such return shall be considered as its declaration if no declara-
27 tion was required to be filed during the taxable year for which the tax
28 was imposed, but is otherwise required to be filed on or before December
29 fifteenth pursuant to paragraph two of subdivision (c) of this section,
30 and
31 (2) such return shall be considered as the amendment permitted by
32 subdivision (d) of this section to be filed on or before December
33 fifteenth if the tax shown on the return is greater than the estimated
34 tax shown on a declaration previously made.
35 (f) Fiscal year. This section shall apply to taxable years of twelve
36 months other than a calendar year by the substitutions of the months of
37 such fiscal year for the corresponding months specified in this section.
38 (g) Short taxable period. If the taxable period for which a tax is
39 imposed by subdivision (a) of section 11-639 of this part is less than
40 twelve months, every taxpayer required to make a declaration of esti-
41 mated tax for such taxable period shall make such a declaration in
42 accordance with regulations of the commissioner of finance.
43 (h) Extension of time. The commissioner of finance may grant a
44 reasonable extension of time, not to exceed three months, for the filing
45 of any declaration required pursuant to this section, on such terms and
46 conditions as the commissioner may require.
47 § 11-645 Payments of estimated tax. (a) Every taxpayer subject to
48 the tax imposed by section 11-639 of this part shall pay an amount equal
49 to twenty-five percent of the preceding year's tax, if such preceding
50 year's tax exceeded one thousand dollars. Such amount shall be paid
51 with the return required to be filed for the preceding taxable year or
52 with an application for the extension of the time for filing such
53 return. Provided, however, that for the first taxable year or period
54 commencing on or after January first, nineteen hundred seventy-three,
55 the installment required by this subdivision shall be paid with the
56 return required to be filed for the tax imposed pursuant to part one or
S. 8578 662
1 two of this subchapter three computed on the basis of net income for the
2 calendar year nineteen hundred seventy-two, or under the minimum tax
3 provisions of section 11-612 of this subchapter.
4 (b) Other installments. The estimated tax for each taxable year with
5 respect to which a declaration of estimated tax is required to be filed
6 under this part shall be paid, in the case of a taxpayer which reports
7 on the basis of a calendar year, as follows:
8 (1) If the declaration is filed on or before June fifteenth, the esti-
9 mated tax shown thereon, after applying thereto the amount, if any, paid
10 during the same taxable year pursuant to subdivision (a) of this
11 section, shall be paid in three equal installments. One of such
12 installments shall be paid at the time of the filing of the declaration,
13 one shall be paid on the following September fifteenth, and one on the
14 following December fifteenth.
15 (2) If the declaration is filed after June fifteenth and not after
16 September fifteenth of such taxable year, and is not required to be
17 filed on or before June fifteenth of such year, the estimated tax shown
18 on such declaration, after applying thereto the amount, if any, paid
19 during the same taxable year pursuant to subdivision (a) of this
20 section, shall be paid in two equal installments. One of such install-
21 ments shall be paid at the time of the filing of the declaration and one
22 shall be paid on the following December fifteenth.
23 (3) If the declaration is filed after September fifteenth of such
24 taxable year, and is not required to be filed on or before September
25 fifteenth of such year, the estimated tax shown on such declaration,
26 after applying thereto the amount, if any, paid in respect of such year
27 pursuant to subdivision (a) of this section, shall be paid in full at
28 the time of the filing of the declaration.
29 (4) If the declaration is filed after the time prescribed therefor,
30 or after the expiration of any extension of time therefor, paragraphs
31 two and three of this subdivision shall not apply and there shall be
32 paid at the time of such filing all installments of estimated tax paya-
33 ble at or before such time, and the remaining installments shall be paid
34 at the times at which, and in the amounts in which, they would have been
35 payable if the declaration had been filed when due.
36 (c) Amendments of declarations. If any amendment of a declaration is
37 filed, the remaining installments, if any, shall be ratably increased or
38 decreased, as the case may be, to reflect any increase or decrease in
39 the estimated tax by reason of such amendment, and if any amendment is
40 made after September fifteenth of the taxable year, any increase in the
41 estimated tax by reason thereof shall be paid at the time of making such
42 amendment.
43 (d) Application of installments based on the preceding year's tax.
44 Any amount paid pursuant to subdivision (a) of this section shall be
45 applied as a first installment against the estimated tax of the taxpayer
46 for the taxable year shown on the declaration required to be filed
47 pursuant to section 11-644 of this part, or if no declaration of esti-
48 mated tax is required to be filed by the taxpayer pursuant to such
49 section, any such amount shall be considered a payment on account of the
50 tax shown on the return required to be filed by the taxpayer for such
51 taxable year.
52 (e) Interest on certain installments based on the preceding year's
53 tax. Notwithstanding the provisions of section 11-679 of this chapter or
54 of section three-a of the general municipal law, if an amount paid
55 pursuant to subdivision (a) of this section exceeds the tax shown on the
56 return required to be filed by the taxpayer for the taxable year during
S. 8578 663
1 which the amount was paid, interest shall be allowed and paid on the
2 amount by which the amount so paid pursuant to such subdivision exceeds
3 such tax, at the overpayment rate set by the commissioner of finance
4 pursuant to section 11-687 of this chapter, or, if no rate is set, at
5 the rate of six percent per annum from the date of payment of the amount
6 so paid pursuant to such subdivision to the fifteenth day of the third
7 month following the close of the taxable year, provided, however, that
8 no interest shall be allowed or paid under this subdivision if the
9 amount thereof is less than one dollar.
10 (f) The preceding year's tax defined. As used in this section, "the
11 preceding year's tax" means the tax imposed upon the taxpayer by subdi-
12 vision (a) of section 11-639 of this part for the preceding taxable
13 year, or, for purposes of computing the first installment of estimated
14 tax when an application has been filed for extension of the time for
15 filing the return required to be filed for such preceding taxable year,
16 the amount properly estimated pursuant to paragraph one of subdivision b
17 of section 11-647 of this part as the tax imposed upon the taxpayer for
18 such taxable year. Provided, however, that for the first taxable year
19 or period commencing on or after January first, nineteen hundred seven-
20 ty-three, the term "preceding year's tax" as used in this section shall
21 mean the tax imposed upon the taxpayer pursuant to part one or two of
22 this subchapter three which was computed on the basis of net income for
23 the calendar year nineteen hundred seventy-two, or under the minimum tax
24 provisions of subdivision two of section 11-612 of this subchapter, or
25 for purposes of computing the first installment of estimated tax for
26 such first taxable year or period when an application has been filed for
27 an extension of the time for filing the return required to be filed for
28 the tax imposed pursuant to part one or two of this subchapter three
29 which was computed on the basis of net income for the calendar year
30 nineteen hundred seventy-two, or under the minimum tax provisions of
31 section 11-612 of this subchapter, the amount of tax properly estimated
32 for purposes of such part one or two pursuant to section 11-635 of this
33 subchapter.
34 (g) Application to short taxable period. This section shall apply to
35 a taxable period of less than twelve months in accordance with regu-
36 lations of the commissioner of finance.
37 (h) Fiscal year. The provisions of this section shall apply to taxa-
38 ble years of twelve months other than a calendar year by the substi-
39 tution of the months of such fiscal year for the corresponding months
40 specified in such provisions.
41 (i) Extension of time. The commissioner of finance may grant a
42 reasonable extension of time, not to exceed six months, for payment of
43 any installment of estimated tax required pursuant to this section, on
44 such terms and conditions as the commissioner may require, including the
45 furnishing of a bond or other security by the taxpayer in an amount not
46 exceeding twice the amount for which any extension of time for payment
47 is granted, provided, however that interest at the underpayment rate set
48 by the commissioner of finance pursuant to section 11-687 of this chap-
49 ter, or, if no rate is set, at the rate of seven and one-half percent
50 per annum for the period of the extension shall be charged and collected
51 on the amount for which any extension of time for payment is granted
52 under this subdivision.
53 (j) Payment of installments in advance. A taxpayer may elect to pay
54 any installment of estimated tax prior to the date prescribed in this
55 section for payment thereof.
S. 8578 664
1 § 11-646 Returns. (a) Every taxpayer shall annually on or before
2 the fifteenth day of the third month following the close of each of its
3 taxable years transmit to the commissioner of finance a return in a form
4 prescribed by the commissioner setting forth such information as the
5 commissioner of finance may prescribe and every taxpayer which ceases to
6 exercise its franchise in the city or to be subject to the tax imposed
7 by this part shall transmit to the commissioner of finance a return on
8 the date of such cessation or at such other time as the commissioner of
9 finance may require covering each year or period for which no return was
10 therefore filed.
11 (b) Every taxpayer shall also transmit such other returns and such
12 facts and information as the commissioner of finance may require in the
13 administration of this part.
14 (c) The commissioner of finance may grant a reasonable extension of
15 time for filing returns whenever good cause exists. An automatic exten-
16 sion of six months for the filing of its annual return shall be allowed
17 any taxpayer, if within the time prescribed by subdivision (a) of this
18 section, such taxpayer files with the commissioner of finance an appli-
19 cation for extension in such form as said commissioner of finance may
20 prescribe by regulation and pays on or before the date of such filing
21 the amount properly estimated as its tax.
22 (d) Every return shall have annexed thereto a certification by the
23 president, vice president, treasurer, assistant treasurer, chief
24 accounting officer or any other officer of the taxpayer duly authorized
25 so to act to the effect that the statements contained therein are true.
26 The fact that an individual's name is signed on a certification of the
27 return shall be prima facie evidence that such individual is authorized
28 to sign and certify the return on behalf of the corporation.
29 (e) If the amount of taxable income, alternative minimum taxable
30 income or other basis of tax for any year of any taxpayer, or of any
31 shareholder of any taxpayer that has elected to be taxed under subchap-
32 ter s of chapter one of the internal revenue code or of any shareholder
33 of any taxpayer with respect to which an election has been made to be
34 treated as a qualified subchapter s subsidiary under paragraph three of
35 subsection (b) of section thirteen hundred sixty-one of the internal
36 revenue code as returned to the United States treasury department or the
37 New York state commissioner of taxation and finance is changed or
38 corrected by the commissioner of internal revenue or other officer of
39 the United States or the New York state commissioner of taxation and
40 finance or other competent authority, or if a taxpayer or such share-
41 holder of a taxpayer, pursuant to subsection (d) of section sixty-two
42 hundred thirteen of the internal revenue code, executes a notice of
43 waiver of the restrictions provided in subsection (a) of said section,
44 or if a taxpayer or such shareholder of a taxpayer, pursuant to
45 subsection (f) of section one thousand eighty-one of the tax law,
46 executes a notice of waiver of the restrictions provided in subsection
47 (c) of such section, such taxpayer shall report such changed or
48 corrected taxable income, alternative minimum taxable income or other
49 basis of tax or such execution of such notice of waiver and the changes
50 or corrections of the taxpayer's federal or New York state taxable
51 income, alternative minimum taxable income or other basis of tax on
52 which it is based, within ninety days, or one hundred twenty days, in
53 the case of a taxpayer making a combined return under this subchapter
54 for such year, after such execution or the final determination of such
55 change or correction, or as required by the commissioner of finance, and
56 shall concede the accuracy of such determination or state wherein it is
S. 8578 665
1 erroneous. The allowance of a tentative carryback adjustment based upon
2 a net capital loss carryback pursuant to section sixty-four hundred
3 eleven of the internal revenue code, shall be treated as a final deter-
4 mination for purposes of this subdivision. Any taxpayer filing an
5 amended return with such department shall also file within ninety days,
6 or one hundred twenty days, in the case of a taxpayer making a combined
7 return under this subchapter for such year, thereafter an amended return
8 with the commissioner of finance which shall contain such information as
9 the commissioner shall require.
10 (f) (1) For purposes of this subdivision, the term "bank holding
11 company" means any corporation subject to article three-A of the banking
12 law, or registered under the federal bank holding company act of nine-
13 teen hundred fifty-six, as amended, or registered as a savings and loan
14 holding company, but excluding a diversified savings and loan holding
15 company, under the federal national housing act, as amended.
16 (2) (i) Any banking corporation or bank holding company which is doing
17 business in the city in a corporate or organized capacity, and
18 (A) which owns or controls, directly or indirectly, eighty percent or
19 more of the voting stock of one or more banking corporations or bank
20 holding companies, or
21 (B) whose voting stock is eighty percent or more owned or controlled,
22 directly or indirectly, by a banking corporation or a bank holding
23 company,
24 shall make a return on a combined basis under this part covering
25 itself and such corporations described in clause (A) or (B) of this
26 subparagraph and shall set forth such information as the commissioner of
27 finance may require unless the taxpayer or the commissioner of finance
28 shows that the inclusion of such a corporation in the combined return
29 fails to properly reflect the tax liability of such corporation under
30 this part. Provided, however, that no banking corporation or bank hold-
31 ing company not a taxpayer shall be subject to the requirements of this
32 subparagraph unless the commissioner of finance deems that the applica-
33 tion of such requirements is necessary in order to properly reflect the
34 tax liability under this part, because of intercompany transactions or
35 some agreement, understanding, arrangement or transaction of the type
36 referred to in subdivision (g) of this section.
37 (ii) In the discretion of the commissioner of finance, any banking
38 corporation or bank holding company which is doing business in the city
39 in a corporate or organized capacity, and
40 (A) which owns or controls, directly or indirectly, sixty-five percent
41 or more of the voting stock of one or more banking corporations or bank
42 holding companies, or
43 (B) whose voting stock is sixty-five percent or more owned or
44 controlled, directly or indirectly, by a banking corporation or a bank
45 holding company, may be required or permitted to make a return on a
46 combined basis under this part covering itself and such corporations
47 described in clause (A) or (B) of this subparagraph and shall set forth
48 such information as the commissioner of finance may require; provided,
49 however, that no combined return shall be required or permitted unless
50 the commissioner of finance deems such report necessary in order to
51 properly reflect the tax liability under this part of any one or more of
52 such banking corporations or bank holding companies.
53 (iii) In the discretion of the commissioner of finance, banking corpo-
54 rations or bank holding companies which are each sixty-five percent or
55 more owned or controlled, directly or indirectly, by the same interest
56 may be permitted or required to make a return on a combined basis under
S. 8578 666
1 this part and shall set forth such information as the commissioner of
2 finance may require, if at least one such banking corporation or bank
3 holding company is doing business in the city in a corporate or organ-
4 ized capacity. No combined return shall be required or permitted unless
5 the commissioner of finance deems such report necessary in order to
6 properly reflect the tax liability under this part of any one or more of
7 such banking corporations or bank holding companies.
8 (iv) (A) Notwithstanding any provision of this paragraph, any bank
9 holding company exercising its corporate franchise or doing business in
10 the city may make a return on a combined basis without seeking the
11 permission of the commissioner with any banking corporation exercising
12 its corporate franchise or doing business in the city in a corporate or
13 organized capacity sixty-five percent or more of whose voting stock is
14 owned or controlled, directly or indirectly, by such bank holding compa-
15 ny, for the first taxable year beginning on or after January first, two
16 thousand and before January first, two thousand twenty during which such
17 bank holding company registers for the first time under the federal bank
18 holding company act, as amended, and also elects to be a financial hold-
19 ing company. In addition, for each subsequent taxable year beginning
20 after January first, two thousand and before January first, two thousand
21 twenty, any such bank holding company may file on a combined basis with-
22 out seeking the permission of the commissioner with any banking corpo-
23 ration that is exercising its corporate franchise or doing business in
24 the city and sixty-five percent or more of whose voting stock is owned
25 or controlled, directly or indirectly, by such bank holding company if
26 either such banking corporation is exercising its corporate franchise or
27 doing business in the city in a corporate or organized capacity for the
28 first time during such subsequent taxable year, or sixty-five percent or
29 more of the voting stock of such banking corporation is owned or
30 controlled, directly or indirectly, by such bank holding company for the
31 first time during such subsequent taxable year. Provided however, for
32 each subsequent taxable year beginning after January first, two thousand
33 and before January first, two thousand twenty, a banking corporation
34 described in this clause which filed on a combined basis with any such
35 bank holding company in a previous taxable year, must continue to file
36 on a combined basis with such bank holding company if such banking
37 corporation, during such subsequent taxable year, continues to exercise
38 its corporate franchise or do business in the city in a corporate or
39 organized capacity and sixty-five percent or more of such banking corpo-
40 ration's voting stock continues to be owned or controlled, directly or
41 indirectly, by such bank holding company, unless the permission of the
42 commissioner has been obtained to file on a separate basis for such
43 subsequent taxable year. Provided further, however, for each subsequent
44 taxable year beginning after January first, two thousand and before
45 January first, two thousand twenty, a banking corporation described in
46 this clause which did not file on a combined basis with any such bank
47 holding company in a previous taxable year, may not file on a combined
48 basis with such bank holding company during any such subsequent taxable
49 year unless the permission of the commissioner has been obtained to file
50 on a combined basis for such subsequent taxable year.
51 (B) Notwithstanding any provision of this paragraph other than clause
52 (A) of this subparagraph, the commissioner may not require a bank hold-
53 ing company which, during a taxable year beginning on or after January
54 first, two thousand and before January first, two thousand twenty,
55 registers for the first time during such taxable year under the federal
56 bank holding company act, as amended, and also elects to be a financial
S. 8578 667
1 holding company, to make a return on a combined basis for any taxable
2 year beginning on or after January first, two thousand and before Janu-
3 ary first, two thousand twenty with a banking corporation sixty-five
4 percent or more of whose voting stock is owned or controlled, directly
5 or indirectly, by such bank holding company.
6 (v)(A) For purposes of this subparagraph, the term "closest control-
7 ling stockholder" means the corporation that indirectly owns or controls
8 over fifty percent of the voting stock of a captive REIT or captive RIC,
9 is subject to tax under this subchapter or otherwise required to be
10 included in a combined return under this chapter and is the fewest tiers
11 of corporations away in the ownership structure from the captive REIT or
12 captive RIC. The commissioner is authorized to prescribe by regulation
13 or published guidance the criteria for determining the closest control-
14 ling stockholder.
15 (B) A captive REIT or a captive RIC must be included in a combined
16 return with the banking corporation or bank holding company that direct-
17 ly owns or controls over fifty percent of the voting stock of the
18 captive REIT or captive RIC if that banking corporation or bank holding
19 company is subject to tax or required to be included in a combined
20 return under this subchapter.
21 (C) If over fifty percent of the voting stock of a captive REIT or
22 captive RIC is not directly owned or controlled by a banking corporation
23 or bank holding company that is subject to tax or required to be
24 included in a combined return under this subchapter, then the captive
25 REIT or captive RIC must be included in a combined return with the
26 corporation that is the closest controlling stockholder of the captive
27 REIT or captive RIC. If the closest controlling stockholder of the
28 captive REIT or captive RIC is a banking corporation or bank holding
29 company that is subject to tax or otherwise required to be included in a
30 combined return under this subchapter, then the captive REIT or captive
31 RIC must be included in a combined return under this subchapter.
32 (D) If the corporation which directly owns or controls the voting
33 stock of the captive REIT or captive RIC is described in subparagraph
34 (ii) of paragraph four of this subdivision as a corporation not permit-
35 ted to make a combined return, then the provisions in clause (C) of this
36 subparagraph must be applied to determine the corporation in whose
37 combined return the captive REIT or captive RIC should be included. If,
38 under clause (C) of this subparagraph, the corporation that is the clos-
39 est controlling stockholder of the captive REIT or captive RIC is
40 described in subparagraph (ii) or (iv) of paragraph four of this subdi-
41 vision as a corporation not permitted to make a combined return, then
42 that corporation is deemed to not be in the ownership structure of the
43 captive REIT or captive RIC, and the closest controlling stockholder
44 will be determined without regard to that corporation.
45 (E) If a captive REIT owns the stock of a qualified REIT subsidiary,
46 as defined in paragraph two of subsection (i) of section eight hundred
47 fifty-six of the internal revenue code, then the qualified REIT subsid-
48 iary must be included in any combined return required to be made by the
49 captive REIT that owns its stock.
50 (F) If a captive REIT or a captive RIC is required under this subpara-
51 graph to be included in a combined return with another corporation, and
52 that other corporation is required to be included in a combined return
53 with another corporation under other provisions of this subdivision, the
54 captive REIT or captive RIC must be included in that combined return
55 with those corporations.
S. 8578 668
1 (G) If the banking corporation or bank holding company that directly
2 or indirectly owns or controls over fifty percent of the voting stock of
3 the captive REIT or captive RIC and is the closest controlling stock-
4 holder of the captive REIT or captive RIC is a member of an affiliated
5 group (1) that does not include any corporation that is engaged in a
6 business that a subsidiary of a bank holding company would not be
7 permitted to engage in, unless such business is de minimis, and (2)
8 whose members own assets the combined average value of which does not
9 exceed eight billion dollars, then the captive REIT or captive RIC must
10 not be included in a combined return under this subchapter. In that
11 instance, the captive REIT or captive RIC is subject to the provisions
12 of subdivision seven or eight of section 11-603 of this chapter. The
13 term "affiliated group" means "affiliated group" as defined in section
14 fifteen hundred four of the internal revenue code, but without regard to
15 the exceptions provided for in subsection (b) of such section.
16 (vi) For taxable years beginning on or after January first two thou-
17 sand eleven, a banking corporation doing business in the city solely
18 because it meets one or more of the tests in subparagraphs (i) through
19 (v) of paragraph one of subdivision (c) of section 11-639 of this chap-
20 ter, referred to in this subparagraph as the "credit card bank", will
21 not be included in a combined return pursuant to subparagraph (i) of
22 this paragraph with another banking corporation or bank holding company
23 which is doing business in the city unless the credit card bank or the
24 commissioner shows that the inclusion of the credit card bank in the
25 combined return is necessary to properly reflect the tax liability of
26 the credit card bank, the banking corporation or bank holding company
27 under this subchapter. However, any banking corporation that meets one
28 or more of the tests in subparagraphs (i) through (v) of paragraph one
29 of subsection (c) of section 11-639 of this chapter and was included in
30 a combined return for its last taxable year beginning before January
31 first, two thousand eleven may continue to be included in a combined
32 return for future taxable years, provided that once that banking corpo-
33 ration has been included in a combined return for any taxable year
34 beginning on or after January first, two thousand eleven, it must
35 continue to be included in a combined return until it obtains the
36 consent of the commissioner to cease being included in a combined return
37 because the combined return no longer properly reflects the tax liabil-
38 ity under this subchapter of any of the corporations included in the
39 combined return. Further, the credit card bank will be included in a
40 combined return with (A) any banking corporation not subject to tax
41 under this subchapter sixty-five percent or more of whose voting stock
42 is owned or controlled, directly or indirectly, by the credit card bank,
43 or (B) any banking corporation or bank holding company not subject to
44 tax under this subchapter which owns or controls, directly or indirect-
45 ly, sixty-five percent or more of the voting stock of the credit card
46 bank, or (C) any banking corporation not subject to tax under this
47 subchapter sixty-five percent or more of the voting stock of which is
48 owned or controlled, directly or indirectly, by the same corporation or
49 corporations that own or control, directly or indirectly, sixty-five
50 percent or more of the voting stock of the credit card bank, if the
51 corporation or corporations described in clauses (A), (B) and (C) of
52 this subparagraph provide services for or support to the credit card
53 bank's operations, unless the credit card bank or the commissioner shows
54 that the inclusion of any of those corporations in the combined return
55 fails to properly reflect the tax liability of the credit card bank. For
56 purposes of this subparagraph, services for or support to the credit
S. 8578 669
1 card bank's operations include such activities as billing, credit inves-
2 tigation and reporting, marketing, research, advertising, mailing,
3 customer service, information technology, lending and financing
4 services, and communications services, but will not include accounting,
5 legal or personnel services.
6 (3) (i) In the case of a combined return, the tax shall be measured by
7 the combined entire net income, combined alternative entire net income
8 or combined assets of all the corporations included in the return,
9 including any captive REIT or captive RIC. The allocation percentage
10 shall be computed based on the combined factors with respect to all the
11 corporations included in the combined return. In computing combined
12 entire net income and alternative entire net income intercorporate divi-
13 dends and all other intercorporate transactions shall be eliminated and
14 in computing combined assets intercorporate stockholdings and intercor-
15 porate bills, notes and accounts receivable and payable and other inter-
16 corporate indebtedness shall be eliminated.
17 (ii) In the case of a captive REIT required under this subdivision to
18 be included in a combined return, "entire net income" means "real estate
19 investment trust taxable income" as defined in paragraph two of subdivi-
20 sion (b) of section eight hundred fifty-seven, as modified by section
21 eight hundred fifty-eight, of the internal revenue code, plus the amount
22 taxable under paragraph three of subdivision (b) of section eight
23 hundred fifty-seven of that code, subject to the modifications required
24 by section 11-641 of this chapter. In the case of a captive RIC required
25 under this subdivision to be included in a combined return, "entire net
26 income" means "investment company taxable income" as defined in para-
27 graph two of subdivision (b) of section eight hundred fifty-two, as
28 modified by section eight hundred fifty-five, of the internal revenue
29 code, plus the amount taxable under paragraph three of subdivision (b)
30 of section eight hundred fifty-two of such code, subject to the modifi-
31 cations required by section 11-641 of this chapter. However, the
32 deduction under the internal revenue code for dividends paid by the
33 captive REIT or captive RIC to any member of the affiliated group that
34 includes the corporation that directly or indirectly owns over fifty
35 percent of the voting stock of the captive REIT or captive RIC shall be
36 limited to twenty-five percent for taxable years beginning on or after
37 January first, two thousand nine and before January first, two thousand
38 eleven and shall not be allowed for taxable years beginning on or after
39 January first, two thousand eleven. The term "affiliated group" means
40 "affiliated group" as defined in section fifteen hundred four of the
41 internal revenue code, but without regard to the exceptions provided for
42 in subsection (b) of such section.
43 (4) (i) In no event shall an item of income or expense of a corpo-
44 ration organized under the laws of a country other than the United
45 States be included in a combined return unless it is includible in
46 entire net income or alternative entire net income, as the case may be,
47 nor shall an asset of such a corporation be included in a combined
48 return unless it is included in taxable assets.
49 (ii) In no event shall a corporation organized under the laws of the
50 United States, this state or any other state, be included in a combined
51 return with a corporation organized under the laws of a country other
52 than the United States.
53 (iii) In no event shall a corporation which has made an election
54 pursuant to subdivision (d) of section 11-640 of this part to be subject
55 to the tax imposed by subchapter two of this chapter be included in a
S. 8578 670
1 combined return for those taxable years for which it is subject to the
2 tax imposed by subchapter two of this chapter.
3 (5) Tax liability under this part may be deemed to be improperly
4 reflected because of intercompany transactions or some agreement, under-
5 standing, arrangement or transaction referred to in subdivision (g) of
6 this section.
7 (g) In case it shall appear to the commissioner of finance that any
8 agreement, understanding or arrangement exists between the taxpayer and
9 any other corporation or any person or firm, whereby the activity, busi-
10 ness, income or assets of the taxpayer within the city is improperly or
11 inaccurately reflected, the commissioner of finance is authorized and
12 empowered, in his or her discretion and in such manner as he or she may
13 determine, to adjust items of income or deductions in computing entire
14 net income or alternative entire net income and to adjust assets, and to
15 adjust wages, salaries and other personal service compensation, receipts
16 or deposits in computing any allocation percentage, provided only that
17 entire net income or alternative entire net income be adjusted accord-
18 ingly and that any asset directly traceable to the elimination of any
19 receipt be eliminated from assets so as to accurately determine the tax.
20 If however, in the determination of the commissioner of finance, such
21 adjustments do not, or cannot effectively provide for the accurate
22 determination of the tax, the commissioner of finance shall be author-
23 ized to require the filing of a combined report by the taxpayer and any
24 such other corporations. Where (1) any taxpayer conducts its activity or
25 business under any agreement, arrangement or understanding in such
26 manner as either directly or indirectly to benefit its members or stock-
27 holders, or any of them, or any person or persons directly or indirectly
28 interested in such activity or business, by entering into any trans-
29 action at more or less than a fair price which, but for such agreement,
30 arrangement or understanding, might have been paid or received therefor,
31 or (2) any taxpayer enters into any transaction with another corporation
32 on such terms as to create an improper loss or net income, the commis-
33 sioner of finance may include in the entire net income or alternative
34 entire net income of the taxpayer the fair profits which, but for such
35 agreement, arrangement or understanding, the taxpayer might have derived
36 from such transaction.
37 § 11-647 Payment of tax. (a) To the extent the tax imposed for
38 section 11-639 of this part shall not have been previously paid pursuant
39 to section 11-645 of this part:
40 (1) such tax, or the balance thereof, shall be payable to the commis-
41 sioner of finance in full at the time its return is required to be
42 filed, and
43 (2) such tax, or the balance thereof, imposed on any taxpayer which
44 ceased to exercise its franchise or to be subject to the tax imposed by
45 this part shall be payable to the commissioner of finance at the time
46 the return is required to be filed, provided such tax of a domestic
47 corporation which continues to possess its franchise shall be subject to
48 adjustment as the circumstances may require; all other taxes of any such
49 taxpayer, which pursuant to the provisions of this subdivision would
50 otherwise be payable subsequent to the time such return is required to
51 be filed, shall nevertheless be payable at such time.
52 (b) If the taxpayer, within the time prescribed by subdivision (c) of
53 section 11-646 of this part, shall have applied for an automatic exten-
54 sion of time to file its annual return and shall have paid to the
55 commissioner of finance on or before the date of such application is
56 filed an amount properly estimated as provided by said subdivision the
S. 8578 671
1 only amount payable in addition to the tax shall be interest at the
2 underpayment rate set by the commissioner of finance pursuant to section
3 11-687 of this chapter, or, if no rate is set, at the rate of seven and
4 one-half percent per annum upon the amount by which the tax, or portion
5 thereof payable on or before the date the return was required to be
6 filed, exceeds the amount so paid, provided that:
7 (1) an amount so paid shall be deemed properly estimated if it is
8 either: (i) not less than ninety per cent of the tax as finally deter-
9 mined, or (ii) not less than the tax shown on the taxpayer's return for
10 the preceding taxable year, if such preceding year was a taxable year of
11 twelve months; and
12 (2) the time when a return is required to be filed shall be determined
13 without regard to any extension of time for filing such return.
14 (c) The commissioner of finance may grant a reasonable extension of
15 time for payment of any tax imposed by this part under such conditions
16 as the commissioner deems just and proper.
17 SUBCHAPTER 3-A
18 CORPORATE TAX OF 2015
19 Section 11-651 Applicability.
20 11-652 Definitions.
21 11-653 Imposition of tax; exemptions.
22 11-654 Computation of tax.
23 11-654.1 Net operating loss.
24 11-654.2 Receipts allocation.
25 11-654.3 Combined reports.
26 11-655 Reports.
27 11-656 Payment and lien of tax.
28 11-657 Declaration of estimated tax.
29 11-658 Payments on account of estimated tax.
30 11-659 Collection of taxes.
31 11-660 Limitations of time.
32 § 11-651 Applicability. 1. Notwithstanding anything to the contrary in
33 this chapter, this subchapter shall apply to corporations for tax years
34 commencing on or after January first, two thousand fifteen, except that
35 it shall not apply to any corporation that (a) has an election in effect
36 under subsection (a) of section thirteen hundred sixty-two of the inter-
37 nal revenue code, as amended, or (b) is a qualified subchapter S subsid-
38 iary within the meaning of paragraph three of subsection (b) of section
39 thirteen hundred sixty-one of the internal revenue code, as amended, in
40 any tax year commencing on or after such date. Subchapters two and three
41 of this chapter shall not apply to corporations to which this subchapter
42 applies for tax years commencing on or after January first, two thousand
43 fifteen, except to the extent provided in this subchapter and to the
44 extent that the effect of the application of subchapters two and three
45 to tax years commencing prior to January first, two thousand fifteen
46 carries over to tax years commencing on or after January first, two
47 thousand fifteen.
48 2. Each reference in the tax law or this code to subchapters two or
49 three of this chapter, or any of the provisions thereof, shall be deemed
50 a reference also to this subchapter, and any of the applicable
51 provisions thereof, where appropriate and with all necessary modifica-
52 tions.
53 § 11-652 Definitions. 1. (a) The term "corporation" includes (1) 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. 8578 672
1 ing, when applicable, a limited liability company, (2) a joint-stock
2 company or association, (3) a publicly traded partnership treated as a
3 corporation for purposes of the internal revenue code pursuant to
4 section seventy-seven hundred four thereof and (4) any business
5 conducted by a trustee or trustees wherein interest or ownership is
6 evidenced by certificate or other written instrument;
7 (b) (1) Notwithstanding paragraph (a) of this subdivision, an unincor-
8 porated organization that (i) is described in subparagraph one or three
9 of paragraph (a) of this subdivision, (ii) was subject to the provisions
10 of chapter five of this title for its taxable year beginning in nineteen
11 hundred ninety-five, and (iii) made a one-time election not to be treat-
12 ed as a corporation and, instead, to continue to be subject to the
13 provisions of chapter five of this title for its taxable years beginning
14 in nineteen hundred ninety-six and thereafter, shall continue to be
15 subject to the provisions of chapter five of this title for its taxable
16 years beginning in nineteen hundred ninety-six.
17 (2) An election under this paragraph shall continue to be in effect
18 until revoked by the unincorporated organization. An election under this
19 paragraph shall be revoked by the filing of a return under this subchap-
20 ter for the first taxable year with respect to which such revocation is
21 to be effective. Such return shall be filed on or before the due date,
22 determined with regard to extensions, for filing such return. In no
23 event shall such election or revocation be for a part of a taxable year.
24 (c) Notwithstanding paragraph (a) of this subdivision, a corporation
25 shall not include an entity classified as a partnership for federal
26 income tax purposes.
27 2. The term "subsidiary" means a corporation of which over fifty per
28 centum of the number of shares of stock entitling the holders thereof to
29 vote for the election of directors or trustees is owned by the taxpayer.
30 2-a. The term "taxpayer" means any corporation subject to tax under
31 this subchapter.
32 3. Intentionally omitted.
33 3-a. The term "stock" means an interest in a corporation that is
34 treated as equity for federal income tax purposes.
35 4. (a) The term "investment capital" means investments in stocks that:
36 (i) satisfy the definition of a capital asset under section one thousand
37 two hundred twenty-one of the internal revenue code at all times the
38 taxpayer owned such stocks during the taxable year; (ii) are held by the
39 taxpayer for investment for more than one year; (iii) the dispositions
40 of which are, or would be, treated by the taxpayer as generating long-
41 term capital gains or losses under the internal revenue code; (iv) for
42 stocks acquired on or after January first, two thousand fifteen, at any
43 time after the close of the day in which they are acquired, have never
44 been held for sale to customers in the regular course of business; and
45 (v) before the close of the day on which the stock was acquired, are
46 clearly identified in the taxpayer's records as stock held for invest-
47 ment in the same manner as required under paragraph one of subdivision
48 (a) of section one thousand two hundred thirty-six of the internal
49 revenue code for the stock of a dealer in securities to be eligible for
50 capital gain treatment, whether or not the taxpayer is a dealer of secu-
51 rities subject to section one thousand two hundred thirty-six, provided,
52 however, that for stock acquired prior to October first, two thousand
53 fifteen that was not subject to subdivision (a) of section one thousand
54 two hundred thirty-six of the internal revenue code, such identification
55 in the taxpayer's records must occur before October first, two thousand
56 fifteen. Stock in a corporation that is conducting a unitary business
S. 8578 673
1 with the taxpayer, stock in a corporation that is included in a combined
2 report with the taxpayer pursuant to the commonly owned group election
3 in subdivision three of section 11-654.3 of this subchapter, and stock
4 issued by the taxpayer shall not constitute investment capital. For
5 purposes of this subdivision, if the taxpayer owns or controls, directly
6 or indirectly, less than twenty percent of the voting power of the stock
7 of a corporation, that corporation will be presumed to be conducting a
8 business that is not unitary with the business of the taxpayer.
9 (b) There shall be deducted from investment capital any liabilities
10 which are directly or indirectly attributable to investment capital. If
11 the amount of those liabilities exceeds the amount of investment capi-
12 tal, the amount of investment capital shall be zero.
13 (c) Investment capital shall not include any such investments the
14 income from which is excluded from entire net income pursuant to the
15 provisions of paragraph (c-1) of subdivision eight of this section, and
16 that investment capital shall be computed without regard to liabilities
17 directly or indirectly attributable to such investments, but only if air
18 carriers organized in the United States and operating in the foreign
19 country or countries in which the taxpayer has its major base of oper-
20 ations and in which it is organized, resident or headquartered, if not
21 in the same country as its major base of operations, are not subject to
22 any tax based on or measured by capital imposed by such foreign country
23 or countries or any political subdivision thereof, or if taxed, are
24 provided an exemption, equivalent to that provided for herein, from any
25 tax based on or measured by capital imposed by such foreign country or
26 countries and from any such tax imposed by any political subdivision
27 thereof.
28 (d) If a taxpayer acquires stock that is a capital asset under section
29 one thousand two hundred twenty-one of the internal revenue code during
30 the taxable year and owns that stock on the last day of the taxable
31 year, it will be presumed, solely for the purposes of determining wheth-
32 er that stock should be classified as investment capital after it is
33 acquired, that the taxpayer held that stock for more than one year.
34 However, if the taxpayer does not in fact own that stock at the time it
35 actually files its original report for the taxable year in which it
36 acquired the stock, then such presumption shall not apply and the actual
37 period of time during which the taxpayer owned the stock shall be used
38 to determine whether the stock should be classified as investment capi-
39 tal after it is acquired. If the taxpayer relies on such presumption but
40 does not own the stock for more than one year, the taxpayer must
41 increase its total business capital in the immediately succeeding taxa-
42 ble year by the amount included in investment capital for that stock,
43 net of any liabilities attributable to that stock computed as provided
44 in paragraph (b) of this subdivision and must increase its business
45 income in the immediately succeeding taxable year by the amount of
46 income and net gains, but not less than zero, from that stock included
47 in investment income, less any interest deductions directly or indirect-
48 ly attributable to that stock, as provided in subdivision five of this
49 section.
50 (e) When income or gain from a debt obligation or other security
51 cannot be allocated to the city using the business allocation percentage
52 as a result of the United States constitutional principles, the debt
53 obligation or other security will be included in investment capital.
54 5. (a)(i) The term "investment income" means income, including capital
55 gains in excess of capital losses, from investment capital, to the
56 extent included in computing entire net income, less, in the discretion
S. 8578 674
1 of the commissioner of finance, any interest deductions allowable in
2 computing entire net income which are directly or indirectly attribut-
3 able to investment capital or investment income, provided, however, that
4 in no case shall investment income exceed entire net income.
5 (ii) If the amount of interest deductions subtracted under subpara-
6 graph (i) of this paragraph exceeds investment income, the excess of
7 such amount over investment income must be added back to entire net
8 income.
9 (iii) If the taxpayer's investment income determined without regard to
10 the interest deductions subtracted under subparagraph (i) of this para-
11 graph comprises more than eight percent of the taxpayer's entire net
12 income, investment income determined without regard to such interest
13 deductions cannot exceed eight percent of the taxpayer's entire net
14 income.
15 (b) In lieu of subtracting from investment income the amount of those
16 interest deductions, the taxpayer may make a revocable election to
17 reduce its total investment income, determined after applying the limi-
18 tation in subparagraph (iii) of paragraph (a) of this subdivision, by
19 forty percent. If the taxpayer makes this election, the taxpayer must
20 also make the elections provided for in paragraphs (b) and (c) of subdi-
21 vision five-a of this section. If the taxpayer subsequently revokes this
22 election, the taxpayer must revoke the elections provided for in para-
23 graphs (b) and (c) of subdivision five-a of this section. A taxpayer
24 that does not make this election because it has no investment capital
25 will not be precluded from making those other elections.
26 (c) Investment income shall not include any amount treated as divi-
27 dends pursuant to section seventy-eight of the internal revenue code.
28 5-a. (a) The term "other exempt income" means the sum of exempt CFC
29 income and exempt unitary corporation dividends.
30 (b) "Exempt CFC income" means (i) except to the extent described in
31 subparagraph (ii) of this paragraph, the income required to be included
32 in the taxpayer's federal gross income pursuant to subsection (a) of
33 section nine hundred fifty-one of the internal revenue code, received
34 from a corporation that is conducting a unitary business with the
35 taxpayer but is not included in a combined report with the taxpayer, and
36 (ii) such income required to be included in the taxpayer's federal gross
37 income pursuant to subsection (a) of such section nine hundred fifty-one
38 of the internal revenue code by reason of subsection (a) of section nine
39 hundred sixty-five of the internal revenue code, as adjusted by
40 subsection (b) of section nine hundred sixty-five of the internal reven-
41 ue code, and without regard to subsection (c) of such section, received
42 from a corporation that is not included in a combined report with the
43 taxpayer, less, (iii) in the discretion of the commissioner of finance,
44 any interest deductions directly or indirectly attributable to that
45 income. In lieu of subtracting from its exempt CFC income the amount of
46 those interest deductions, the taxpayer may make a revocable election to
47 reduce its total exempt CFC income by forty percent. If the taxpayer
48 makes this election, the taxpayer must also make the elections provided
49 for in paragraph (b) of subdivision five of this section and paragraph
50 (c) of this subdivision. If the taxpayer subsequently revokes this
51 election, the taxpayer must revoke the elections provided for in para-
52 graph (b) of subdivision five of this section and paragraph (c) of this
53 subdivision. A taxpayer which does not make this election because it has
54 no exempt CFC income will not be precluded from making those other
55 elections. The income described in subparagraph (ii) of this paragraph
56 shall not constitute investment income.
S. 8578 675
1 (c) "Exempt unitary corporate dividends" means those dividends from a
2 corporation that is conducting a unitary business with the taxpayer but
3 is not included in a combined report with the taxpayer, less, in the
4 discretion of the commissioner of finance, any interest deductions
5 directly or indirectly attributable to such income. Other than dividend
6 income received from corporations that are taxable under chapter eleven
7 of this title, except for vendors of utility services that are also
8 taxable under this subchapter, or would be taxable under chapter eleven
9 of this title, except for vendors of utility services that are also
10 taxable under this subchapter, if subject to tax and corporations that
11 would have been taxable as insurance corporations under former part IV,
12 title R, chapter forty-six of the administrative code of the city of New
13 York as in effect on June thirtieth, nineteen hundred seventy-four, in
14 lieu of subtracting from this dividend income those interest deductions,
15 the taxpayer may make a revocable election to reduce the total amount of
16 this dividend income by forty percent. If the taxpayer makes this
17 election, the taxpayer must also make the elections provided for in
18 paragraph (b) of subdivision five of this section and paragraph (b) of
19 this subdivision. If the taxpayer subsequently revokes this election,
20 the taxpayer must revoke the elections provided for in paragraph (b) of
21 subdivision five of this section and paragraph (b) of this subdivision.
22 A taxpayer that does not make this election because it has not received
23 any exempt unitary corporation dividends or is precluded from making
24 this election for dividends received from corporations that are taxable
25 under chapter eleven of this title, except for vendors of utility
26 services that are also taxable under this subchapter, or would be taxa-
27 ble under chapter eleven of this title if subject to tax, except for
28 vendors of utility services that are also taxable under this subchapter,
29 shall not be precluded from making those other elections.
30 (d) If the taxpayer attributes interest deductions to other exempt
31 income and the amount deducted exceeds other exempt income, the excess
32 of the interest deductions over other exempt income must be added back
33 to entire net income. In no case shall other exempt income exceed entire
34 net income.
35 (e) Other exempt income shall not include any amount treated as divi-
36 dends pursuant to section seventy-eight of the internal revenue code.
37 6. (a) The term "business capital" means all assets, other than
38 investment capital and stock issued by the taxpayer, less liabilities
39 not deducted from investment capital; provided, however, business capi-
40 tal shall include only those assets the income, loss or expense of which
41 are properly reflected, or would have been properly reflected if not
42 fully depreciated or expensed or depreciated or expensed to a nominal
43 amount, in the computation of entire net income for the taxable year.
44 (b) Provided, further, "business capital" shall not include assets to
45 the extent employed for the purpose of generating income which is
46 excluded from entire net income pursuant to the provisions of paragraph
47 (c-1) of subdivision eight of this section and shall be computed without
48 regard to liabilities directly or indirectly attributable to such
49 assets, but only if air carriers organized in the United States and
50 operating in the foreign country or countries in which the taxpayer has
51 its major base of operations and in which it is organized, resident or
52 headquartered, if not in the same country as its major base of oper-
53 ations, are not subject to any tax based on or measured by capital
54 imposed by such foreign country or countries or any political subdivi-
55 sion thereof, or if taxed, are provided an exemption, equivalent to that
56 provided for herein, from any tax based on or measured by capital
S. 8578 676
1 imposed by such foreign country or countries and from any such tax
2 imposed by any political subdivision thereof.
3 7. The term "business income" means entire net income minus investment
4 income and other exempt income. In no event shall the sum of investment
5 income and other exempt income exceed entire net income. If the taxpayer
6 makes the election provided for in subparagraph one of paragraph (a) of
7 subdivision five of section 11-654.2 of this subchapter, then all income
8 from qualified financial instruments shall constitute business income.
9 8. The term "entire net income" means total net income from all sourc-
10 es, which shall be presumably the same as the entire taxable income,
11 which, except as hereafter provided in this subdivision,
12 (i) the taxpayer is required to report to the United States treasury
13 department, or
14 (ii) the taxpayer, in the case of a corporation that is exempt from
15 federal income tax, other than the tax on unrelated business taxable
16 income imposed under section five hundred eleven of the internal revenue
17 code, but which is subject to tax under this subchapter, would have been
18 required to report to the United States treasury department but for such
19 exemption, or
20 (iii) in the case of an alien corporation that under any provision of
21 the internal revenue code is not treated as a "domestic corporation" as
22 defined in section seven thousand seven hundred one of such code, is
23 effectively connected with the conduct of a trade or business within the
24 United States as determined under section eight hundred eighty-two of
25 the internal revenue code.
26 (a) Entire net income shall not include:
27 (1) Intentionally omitted;
28 (2) Intentionally omitted;
29 (2-a) any amounts treated as dividends pursuant to section seventy-
30 eight of the internal revenue code to the extent such dividends are not
31 deducted under section two hundred fifty of such code;
32 (3) bona fide gifts;
33 (4) income and deductions with respect to amounts received from school
34 districts and from corporations and associations, organized and operated
35 exclusively for religious, charitable or educational purposes, no part
36 of the net earnings of which inures to the benefit of any private share-
37 holder or individual, for the operation of school buses;
38 (5) any refund or credit of a tax imposed under this chapter, or
39 imposed by article nine, nine-A, twenty-three, or former article thir-
40 ty-two of the tax law, for which tax no exclusion or deduction was
41 allowed in determining the taxpayer's entire net income under this
42 subchapter, subchapter two, or subchapter three of this chapter for any
43 prior year;
44 (6) Intentionally omitted;
45 (7) that portion of wages and salaries paid or incurred for the taxa-
46 ble year for which a deduction is not allowed pursuant to the provisions
47 of section two hundred eighty-C of the internal revenue code;
48 (8) except with respect to property which is a qualified mass commut-
49 ing vehicle described in subparagraph (D) of paragraph eight of
50 subsection (f) of section one hundred sixty-eight of the internal reven-
51 ue code, relating to qualified mass commuting vehicles, and property of
52 a taxpayer principally engaged in the conduct of an aviation, steamboat,
53 ferry or navigation business, or two or more of such businesses, which
54 is placed in service before taxable years beginning in nineteen hundred
55 eighty-nine, any amount which is included in the taxpayer's federal
56 taxable income solely as a result of an election made pursuant to the
S. 8578 677
1 provisions of such paragraph eight as it was in effect for agreements
2 entered into prior to January first, nineteen hundred eighty-four;
3 (9) except with respect to property which is a qualified mass commut-
4 ing vehicle described in subparagraph (D) of paragraph eight of
5 subsection (f) of section one hundred sixty-eight of the internal reven-
6 ue code, relating to qualified mass commuting vehicles, and property of
7 a taxpayer principally engaged in the conduct of an aviation, steamboat,
8 ferry or navigation business, or two or more of such businesses, which
9 is placed in service before taxable years beginning in nineteen hundred
10 eighty-nine, any amount which the taxpayer could have excluded from
11 federal taxable income had it not made the election provided for in such
12 paragraph eight as it was in effect for agreements entered into prior to
13 January first, nineteen hundred eighty-four;
14 (10) the amount deductible pursuant to paragraph (j) of this subdivi-
15 sion;
16 (11) upon the disposition of property to which paragraph (j) of this
17 subdivision applies, the amount, if any, by which the aggregate of the
18 amounts described in subparagraph eleven of paragraph (b) of this subdi-
19 vision attributable to such property exceeds the aggregate of the
20 amounts described in paragraph (j) of this subdivision attributable to
21 such property;
22 (12) the amount deductible pursuant to paragraph (k) of this subdivi-
23 sion;
24 (13) the amount deductible pursuant to paragraph (o) of this subdivi-
25 sion;
26 (14) the amount computed pursuant to paragraph (q), (r) or (s) of this
27 subdivision, but only the amount determined pursuant to one of such
28 paragraphs; and
29 (15) the amount computed pursuant to paragraph (t) of this subdivi-
30 sion.
31 (16) The amount of any gain added back to determine entire net income
32 in a previous taxable year pursuant to subparagraph twenty-three of
33 paragraph (b) of subdivision eight of this section is included in feder-
34 al gross income for the taxable year.
35 (17) The amount of any grant received through either the COVID-19
36 pandemic small business recovery grant program, pursuant to section
37 sixteen-ff of the New York state urban development corporation act, or
38 the small business resilience grant program administered by the depart-
39 ment of small business services, to the extent the amount of either such
40 grant is included in federal taxable income.
41 (a-1) Notwithstanding any other provision of this subchapter, in the
42 case of a taxpayer that is a partner in a partnership subject to the tax
43 imposed by chapter eleven of this title as a utility, as defined in
44 subdivision six of section 11-1101 of such chapter, entire net income
45 shall not include the taxpayer's distributive or pro rata share for
46 federal income tax purposes of any item of income, gain, loss or
47 deduction of such partnership, or any item of income, gain, loss or
48 deduction of such partnership that the taxpayer is required to take into
49 account separately for federal income tax purposes.
50 (b) Entire net income shall be determined without the exclusion,
51 deduction or credit of:
52 (1) in the case of an alien corporation that under any provision of
53 the internal revenue code is not treated as a "domestic corporation" as
54 defined in section seven thousand seven hundred one of such code, (i)
55 any part of any income from dividends or interest on any kind of stock,
56 securities or indebtedness, but only if such income is treated as effec-
S. 8578 678
1 tively connected with the conduct of a trade or business in the United
2 States pursuant to section eight hundred sixty-four of the internal
3 revenue code, (ii) any income exempt from federal taxable income under
4 any treaty obligation of the United States, but only if such income
5 would be treated as effectively connected in the absence of such
6 exemption provided that such treaty obligation does not preclude the
7 taxation of such income by a state, or (iii) any income which would be
8 treated as effectively connected if such income were not excluded from
9 gross income pursuant to subsection (a) of section one hundred three of
10 the internal revenue code;
11 (2) any part of any income from dividends or interest of any kind of
12 stock, securities, or indebtedness;
13 (3) taxes on or measured by profits or income paid or accrued to the
14 United States, any of its possessions, territories or commonwealths,
15 including taxes in lieu of any of the foregoing taxes otherwise general-
16 ly imposed by any possession, territory or commonwealth of the United
17 States, or taxes paid or accrued to the state under article nine,
18 nine-A, thirteen-A or thirty-two of the tax law as in effect on December
19 thirty-first, two thousand fourteen;
20 (3-a) taxes on or measured by profits or income, or which include
21 profits or income as a measure, paid or accrued to any other state of
22 the United States, or any political subdivision thereof, or to the
23 District of Columbia, including taxes expressly in lieu of any of the
24 foregoing taxes otherwise generally imposed by any other state of the
25 United States, or any political subdivision thereof, or the District of
26 Columbia;
27 (4) taxes imposed under this chapter;
28 (4-a) Intentionally omitted;
29 (4-b) the amount allowed as an exclusion or a deduction imposed by the
30 tax law in determining the entire taxable income for a relocation
31 described in subdivision thirteen of section 11-654 of this subchapter
32 which the taxpayer is required to report to the United States treasury
33 department but only such portion of such exclusion or deduction which is
34 not in excess of the amount of the credit allowed pursuant to subdivi-
35 sion thirteen of section 11-654 of this subchapter;
36 (4-c) the amount allowed as an exclusion or a deduction imposed by the
37 tax law for a relocation described in subdivision fourteen of section
38 11-654 of this subchapter in determining the entire taxable income which
39 the taxpayer is required to report to the United States treasury depart-
40 ment but only such portion of such exclusion or deduction which is not
41 in excess of the amount of the credit allowed pursuant to subdivision
42 fourteen of section 11-654 of this subchapter;
43 (4-d) Intentionally omitted;
44 (4-e) Intentionally omitted;
45 (5) Intentionally omitted;
46 (6) any amount allowed as a deduction for the taxable year under
47 section one hundred seventy-two of the internal revenue code, including
48 carryovers of deductions from prior taxable years;
49 (7) any amount by reason of the granting, issuing or assuming of a
50 restricted stock option, as defined in the internal revenue code of
51 nineteen hundred fifty-four, or by reason of the transfer of the share
52 of stock upon the exercise of the option, unless such share is disposed
53 of by the grantee of the option within two years from the date of the
54 granting of the option or within six months after the transfer of such
55 share to the grantee;
56 (8) Intentionally omitted;
S. 8578 679
1 (9) except with respect to property which is a qualified mass commut-
2 ing vehicle described in subparagraph (D) of paragraph eight of
3 subsection (f) of section one hundred sixty-eight of the internal reven-
4 ue code, relating to qualified mass commuting vehicles, and property of
5 a taxpayer principally engaged in the conduct of an aviation, steamboat,
6 ferry or navigation business, or two or more of such businesses, which
7 is placed in service before taxable years beginning in nineteen hundred
8 eighty-nine, any amount which the taxpayer claimed as a deduction in
9 computing its federal taxable income solely as a result of an election
10 made pursuant to the provisions of such paragraph eight as it was in
11 effect for agreements entered into prior to January first, nineteen
12 hundred eighty-four;
13 (10) except with respect to property which is a qualified mass commut-
14 ing vehicle described in subparagraph (D) of paragraph eight of
15 subsection (f) of section one hundred sixty-eight of the internal reven-
16 ue code, relating to qualified mass commuting vehicles, and property of
17 a taxpayer principally engaged in the conduct of an aviation, steamboat,
18 ferry or navigation business, or two or more of such businesses, which
19 is placed in service before taxable years beginning in nineteen hundred
20 eighty-nine, any amount which the taxpayer would have been required to
21 include in the computation of its federal taxable income had it not made
22 the election permitted pursuant to such paragraph eight as it was in
23 effect for agreements entered into prior to January first, nineteen
24 hundred eighty-four;
25 (11) in the case of property placed in service in taxable years begin-
26 ning before nineteen hundred ninety-four, for taxable years beginning
27 after December thirty-first, nineteen hundred eighty-one, except with
28 respect to property subject to the provisions of section two hundred
29 eighty-F of the internal revenue code, property subject to the
30 provisions of section one hundred sixty-eight of the internal revenue
31 code which is placed in service in this state in taxable years beginning
32 after December thirty-first, nineteen hundred eighty-four and property
33 of a taxpayer principally engaged in the conduct of an aviation, steam-
34 boat, ferry or navigation business, or two or more of such businesses,
35 which is placed in service before taxable years beginning in nineteen
36 hundred eighty-nine, the amount allowable as a deduction determined
37 under section one hundred sixty-eight of the internal revenue code;
38 (12) upon the disposition of property to which paragraph (j) of this
39 subdivision applies, the amount, if any, by which the aggregate of the
40 amounts described in such paragraph (j) attributable to such property
41 exceeds the aggregate of the amounts described in subparagraph eleven of
42 this paragraph attributable to such property;
43 (13) Intentionally omitted;
44 (14) Intentionally omitted;
45 (15) Intentionally omitted;
46 (16) in the case of qualified property described in paragraph two of
47 subsection (k) of section one hundred sixty-eight of the internal reven-
48 ue code, other than qualified resurgence zone property described in
49 paragraph (m) of this subdivision, and other than qualified New York
50 Liberty Zone property described in paragraph two of subsection (b) of
51 section fourteen hundred-L of the internal revenue code, without regard
52 to clause (i) of subparagraph (C) of such paragraph, the amount allow-
53 able as a deduction under section one hundred sixty-seven of the inter-
54 nal revenue code;
55 (17) in the case of a taxpayer that is not an eligible farmer as
56 defined in subsection (n) of section six hundred six of the tax law, the
S. 8578 680
1 amount allowable as a deduction under sections one hundred seventy-nine,
2 one hundred sixty-seven and one hundred sixty-eight of the internal
3 revenue code with respect to a sport utility vehicle that is not a
4 passenger automobile as defined in paragraph five of subsection (d) of
5 section two hundred eighty-F of the internal revenue code;
6 (18) the amount of any deduction allowed pursuant to section one
7 hundred ninety-nine of the internal revenue code;
8 (19) the amount of any federal deduction for taxes imposed under arti-
9 cle twenty-three of the tax law;
10 (20) the amount of any federal deduction allowed pursuant to
11 subsection (c) of section nine hundred sixty-five of the internal reven-
12 ue code;
13 (21) the amount of any federal deduction allowed pursuant to subpara-
14 graph (A) of paragraph one of subdivision (a) of section two hundred
15 fifty of the internal revenue code.
16 (22) For taxable years beginning in two thousand nineteen and two
17 thousand twenty, the amount of the increase in the federal interest
18 deduction allowed pursuant to paragraph ten of subdivision (j) of
19 section one hundred sixty-three of the internal revenue code.
20 (23) The amount of any gain excluded from federal gross income for the
21 taxable year by subparagraph (A) of paragraph (1) of subsection (a) of
22 section one thousand four hundred-Z-two of the internal revenue code.
23 (c) Intentionally omitted.
24 (c-1)(1) Notwithstanding any other provision of this subchapter, in
25 the case of a taxpayer which is a foreign air carrier holding a foreign
26 air carrier permit issued by the United States department of transporta-
27 tion pursuant to section four hundred two of the federal aviation act of
28 nineteen hundred fifty-eight, as amended, and which is qualified under
29 subparagraph two of this paragraph, entire net income shall not include,
30 and shall be computed without the deduction of, amounts directly or
31 indirectly attributable to, (i) any income derived from the interna-
32 tional operation of aircraft as described in and subject to the
33 provisions of section eight hundred eighty-three of the internal revenue
34 code, (ii) income without the United States which is derived from the
35 operation of aircraft, and (iii) income without the United States which
36 is of a type described in subdivision (a) of section eight hundred
37 eighty-one of the internal revenue code except that it is derived from
38 sources without the United States. Entire net income shall include
39 income described in clauses (i), (ii) and (iii) of this subparagraph in
40 the case of taxpayers not described in the previous sentence;
41 (2) A taxpayer is qualified under this subparagraph if air carriers
42 organized in the United States and operating in the foreign country or
43 countries in which the taxpayer has its major base of operations and in
44 which it is organized, resident or headquartered, if not in the same
45 country as its major base of operations, are not subject to any income
46 tax or other tax based on or measured by income or receipts imposed by
47 such foreign country or countries or any political subdivision thereof,
48 or if so subject to such tax, are provided an exemption from such tax
49 equivalent to that provided for herein.
50 (d) The commissioner of finance may, whenever necessary in order to
51 properly reflect the entire net income of any taxpayer, determine the
52 year or period in which any item of income or deduction shall be
53 included, without regard to the method of accounting employed by the
54 taxpayer.
55 (e) The entire net income of any bridge commission created by act of
56 congress to construct a bridge across an international boundary means
S. 8578 681
1 its gross income less the expense of maintaining and operating its prop-
2 erties, the annual interest upon its bonds and other obligations, and
3 the annual charge for the retirement of such bonds or obligations at
4 maturity.
5 (f) Intentionally omitted.
6 (g) At the election of the taxpayer, a deduction shall be allowed for
7 expenditures paid or incurred during the taxable year for the
8 construction, reconstruction, erection or improvement of industrial
9 waste treatment facilities and air pollution control facilities.
10 (1)(i) The term "industrial waste treatment facilities" shall mean
11 facilities for the treatment, neutralization or stabilization of indus-
12 trial waste, as the term "industrial waste" is defined in section
13 17-0105 of the environmental conservation law, from a point immediately
14 preceding the point of such treatment, neutralization or stabilization
15 to the point of disposal, including the necessary pumping and transmit-
16 ting facilities, but excluding such facilities installed for the primary
17 purpose of salvaging materials which are usable in the manufacturing
18 process or are marketable.
19 (ii) The term "air pollution control facilities" shall mean facilities
20 which remove, reduce, or render less noxious air contaminants emitted
21 from an air contamination source, as the terms "air contaminant" and
22 "air contamination source" are defined in section 19-0107 of the envi-
23 ronmental conservation law, from a point immediately preceding the point
24 of such removal, reduction or rendering to the point of discharge of
25 air, meeting emission standards as established by the air pollution
26 control board, but excluding such facilities installed for the primary
27 purpose of salvaging materials which are usable in the manufacturing
28 process or are marketable and excluding those facilities which rely for
29 their efficacy on dilution, dispersion or assimilation of air contam-
30 inants in the ambient air after emission.
31 (2) However, such deduction shall be allowed only (i) with respect to
32 tangible property which is depreciable, pursuant to section one hundred
33 sixty-seven of the internal revenue code, having a situs in the city and
34 used in the taxpayer's trade or business, the construction, recon-
35 struction, erection or improvement of which, in the case of industrial
36 waste treatment facilities, is initiated on or after January first,
37 nineteen hundred sixty-six, and only for expenditures paid or incurred
38 prior to January first, nineteen hundred seventy-two, or which, in the
39 case of air pollution control facilities, is initiated on or after Janu-
40 ary first, nineteen hundred sixty-six, and
41 (ii) on condition that such facilities have been certified by the
42 state commissioner of environmental conservation or the state commis-
43 sioner's designated representative, in the same manner as provided for
44 in section 17-0707 or 19-0309 of the environmental conservation law, as
45 applicable, as complying with applicable provisions of the environmental
46 conservation law, the state sanitary code and regulations, permits or
47 orders issued pursuant thereto, and
48 (iii) on condition that entire net income for the taxable year and all
49 succeeding taxable years be computed without any deductions for such
50 expenditures or for depreciation of the same property other than the
51 deductions allowed by this paragraph except to the extent that the basis
52 of the property may be attributable to factors other than such expendi-
53 tures, or in case a deduction is allowable pursuant to this paragraph
54 for only a part of such expenditures, on condition that any deduction
55 allowed for federal income tax purposes for such expenditures or for
56 depreciation of the same property be proportionately reduced in comput-
S. 8578 682
1 ing entire net income for the taxable year and all succeeding taxable
2 years, and
3 (iv) where the election provided for in paragraph (d) of subdivision
4 three of section 11-604 of this chapter or the election provided for in
5 subdivision (k) of section 11-641 of this chapter has not been exercised
6 in respect to the same property.
7 (3)(i) If expenditures in respect to an industrial waste treatment
8 facility or an air pollution control facility have been deducted as
9 provided herein and if within ten years from the end of the taxable year
10 in which such deduction was allowed such property or any part thereof is
11 used for the primary purpose of salvaging materials which are usable in
12 the manufacturing process or are marketable, the taxpayer shall report
13 such change of use in its report for the first taxable year during which
14 it occurs, and the commissioner of finance may recompute the tax for the
15 year or years for which such deduction was allowed and any carryback or
16 carryover year, and may assess any additional tax resulting from such
17 recomputation within the time fixed by paragraph (h) of subdivision
18 three of section 11-674 of this chapter.
19 (ii) If a deduction is allowed as herein provided for expenditures
20 paid or incurred during any taxable year on the basis of a temporary
21 certificate of compliance issued pursuant to the environmental conserva-
22 tion law and if the taxpayer fails to obtain a permanent certificate of
23 compliance upon completion of the facilities with respect to which such
24 temporary certificate was issued, the taxpayer shall report such failure
25 in its report for the taxable year during which such facilities are
26 completed, and the commissioner of finance may recompute the tax for the
27 year or years for which such deduction was allowed and any carryback or
28 carryover year, and may assess any additional tax resulting from such
29 recomputation within the time fixed by paragraph (h) of subdivision
30 three of section 11-674 of this chapter.
31 (4) In any taxable year when property is sold or otherwise disposed
32 of, with respect to which a deduction has been allowed pursuant to this
33 paragraph, such deduction shall be disregarded in computing gain or
34 loss, and the gain or loss on the sale or other disposition of such
35 property shall be the gain or loss entering into the computation of
36 entire taxable income which the taxpayer is required to report to the
37 United States treasury for such taxable year;
38 (h) With respect to gain derived from the sale or other disposition of
39 any property acquired prior to January first, nineteen hundred sixty-
40 six; which had a federal adjusted basis on such date, or on the date of
41 its sale or other disposition prior to January first, nineteen hundred
42 sixty-six, lower than its fair market value on January first, nineteen
43 hundred sixty-six or the date of its sale or other disposition prior
44 thereto, except property described in subsections one and four of
45 section twelve hundred twenty-one of the internal revenue code, there
46 shall be deducted from entire net income, the difference between (1) the
47 amount of the taxpayer's federal taxable income, and (2) the amount of
48 the taxpayer's federal taxable income, if smaller than the amount
49 described in subparagraph one of this paragraph, computed as if the
50 federal adjusted basis of each such property, on the sale or other
51 disposition of which gain was derived, on the date of the sale or other
52 disposition had been equal to either (i) its fair market value on Janu-
53 ary first, nineteen hundred sixty-six or the date of its sale or other
54 disposition prior to January first, nineteen hundred sixty-six, plus or
55 minus all adjustments to basis made with respect to such property for
56 federal income tax purposes for periods on and after January first,
S. 8578 683
1 nineteen hundred sixty-six or (ii) the amount realized from its sale or
2 disposition, whichever is lower; provided, however, that the total
3 modification provided by this paragraph shall not exceed the amount of
4 the taxpayer's net gain from the sale or other disposition of all such
5 property.
6 (i) If the period covered by a report under this subchapter is other
7 than the period covered by the report of the United States treasury
8 department, entire net income shall be determined by multiplying the
9 federal taxable income, as adjusted pursuant to the provisions of this
10 subchapter, by the number of calendar months or major parts thereof
11 covered by the report under this subchapter and dividing by the number
12 of calendar months or major parts thereof covered by the report to such
13 department. If it shall appear that such method of determining entire
14 net income does not properly reflect the taxpayer's income during the
15 period covered by the report under this subchapter, the commissioner of
16 finance shall be authorized in his or her discretion to determine such
17 entire net income solely on the basis of the taxpayer's income during
18 the period covered by its report under this subchapter.
19 (j) In the case of property placed in service in taxable years begin-
20 ning before nineteen hundred ninety-four, for taxable years beginning
21 after December thirty-first, nineteen hundred eighty-one, except with
22 respect to property subject to the provisions of section two hundred
23 eighty-F of the internal revenue code and property subject to the
24 provisions of section one hundred sixty-eight of the internal revenue
25 code which is placed in service in this state in taxable years beginning
26 after December thirty-first, nineteen hundred eighty-four, and provided
27 a deduction has not been excluded from entire net income pursuant to
28 subparagraph nine of paragraph (b) of this subdivision, a taxpayer shall
29 be allowed with respect to property which is subject to the provisions
30 of section one hundred sixty-eight of the internal revenue code the
31 depreciation deduction allowable under section one hundred sixty-seven
32 of the internal revenue code as such section would have applied to prop-
33 erty placed in service on December thirty-first, nineteen hundred
34 eighty. This paragraph shall not apply to property of a taxpayer prin-
35 cipally engaged in the conduct of an aviation, steamboat, ferry or navi-
36 gation business, or two or more of such businesses, which is placed in
37 service before taxable years beginning in nineteen hundred eighty-nine.
38 (k) In the case of qualified property described in paragraph two of
39 subsection (k) of section one hundred sixty-eight of the internal reven-
40 ue code, other than qualified resurgence zone property described in
41 paragraph (m) of this subdivision, and other than qualified New York
42 Liberty Zone property described in paragraph two of subsection (b) of
43 section fourteen hundred-L of the internal revenue code, without regard
44 to clause (i) of subparagraph (C) of such paragraph, the depreciation
45 deduction allowable under section one hundred sixty-seven as such
46 section would have applied to such property had it been acquired by the
47 taxpayer on September tenth, two thousand one, provided, however, that
48 for taxable years beginning on or after January first, two thousand
49 four, in the case of a passenger motor vehicle or a sport utility vehi-
50 cle subject to the provisions of paragraph (o) of this subdivision, the
51 limitation under clause (i) of subparagraph (A) of paragraph one of
52 subdivision (a) of section two hundred eighty-F of the internal revenue
53 code applicable to the amount allowed as a deduction under this para-
54 graph shall be determined as of the date such vehicle was placed in
55 service and not as of September tenth, two thousand one.
S. 8578 684
1 (l) Upon the disposition of property to which paragraph (k) of this
2 subdivision applies, the amount of any gain or loss includible in entire
3 net income shall be adjusted to reflect the inclusions and exclusions
4 from entire net income pursuant to subparagraph twelve of paragraph (a)
5 and subparagraph sixteen of paragraph (b) of this subdivision attribut-
6 able to such property.
7 (m) For purposes of this paragraph and paragraph (l) of this subdivi-
8 sion, qualified resurgence zone property shall mean qualified property
9 described in paragraph two of subsection (k) of section one hundred
10 sixty-eight of the internal revenue code substantially all of the use of
11 which is in the resurgence zone, as defined below, and is in the active
12 conduct of a trade or business by the taxpayer in such zone, and the
13 original use of which in the resurgence zone commences with the taxpayer
14 after September tenth, two thousand one. The resurgence zone shall mean
15 the area of New York county bounded on the south by a line running from
16 the intersection of the Hudson River with the Holland Tunnel, and
17 running thence east to Canal Street, then running along the centerline
18 of Canal Street to the intersection of the Bowery and Canal Street,
19 running thence in a southeasterly direction diagonally across Manhattan
20 Bridge Plaza, to the Manhattan Bridge, and thence along the centerline
21 of the Manhattan Bridge to the point where the centerline of the Manhat-
22 tan Bridge would intersect with the easterly bank of the East River, and
23 bounded on the north by a line running from the intersection of the
24 Hudson River with the Holland Tunnel and running thence north along West
25 Avenue to the intersection of Clarkson Street then running east along
26 the centerline of Clarkson Street to the intersection of Washington
27 Avenue, then running south along the centerline of Washington Avenue to
28 the intersection of West Houston Street, then east along the centerline
29 of West Houston Street, then at the intersection of the Avenue of the
30 Americas continuing east along the centerline of East Houston Street to
31 the easterly bank of the East River.
32 (n) Related members expense add back. (1) For purposes of this para-
33 graph: (i) "Related member" means a related person as defined in subpar-
34 agraph (c) of paragraph three of subsection (b) of section four hundred
35 sixty-five of the internal revenue code, except that "fifty percent"
36 shall be substituted for "ten percent".
37 (ii) "Effective rate of tax" means, as to any city, the maximum statu-
38 tory rate of tax imposed by the city on or measured by a related
39 member's net income multiplied by the allocation percentage, if any,
40 applicable to the related member under the laws of said jurisdiction.
41 For purposes of this definition, the effective rate of tax as to any
42 city is zero where the related member's net income tax liability in said
43 city is reported on a combined or consolidated return including both the
44 taxpayer and the related member where the reported transactions between
45 the taxpayer and the related member are eliminated or offset. Also, for
46 purposes of this definition, when computing the effective rate of tax
47 for a city in which a related member's net income is eliminated or
48 offset by a credit or similar adjustment that is dependent upon the
49 related member either maintaining or managing intangible property or
50 collecting interest income in that city, the maximum statutory rate of
51 tax imposed by said city shall be decreased to reflect the statutory
52 rate of tax that applies to the related member as effectively reduced by
53 such credit or similar adjustment.
54 (iii) Royalty payments are payments directly connected to the acquisi-
55 tion, use, maintenance or management, ownership, sale, exchange, or any
56 other disposition of licenses, trademarks, copyrights, trade names,
S. 8578 685
1 trade dress, service marks, mask works, trade secrets, patents and any
2 other similar types of intangible assets as determined by the commis-
3 sioner of finance, and include amounts allowable as interest deductions
4 under section one hundred sixty-three of the internal revenue code to
5 the extent such amounts are directly or indirectly for, related to or in
6 connection with the acquisition, use, maintenance or management, owner-
7 ship, sale, exchange or disposition of such intangible assets.
8 (iv) A valid business purpose is one or more business purposes, other
9 than the avoidance or reduction of taxation, which alone or in combina-
10 tion constitute the primary motivation for some business activity or
11 transaction, which activity or transaction changes in a meaningful way,
12 apart from tax effects, the economic position of the taxpayer. The
13 economic position of the taxpayer includes an increase in the market
14 share of the taxpayer, or the entry by the taxpayer into new business
15 markets.
16 (2) Royalty expense add backs. (i) Except where a taxpayer is included
17 in a combined report pursuant to section 11-654.3 of this subchapter
18 with the applicable related member, for the purpose of computing entire
19 net income or other applicable taxable basis, a taxpayer must add back
20 royalty payments directly or indirectly paid, accrued, or incurred in
21 connection with one or more direct or indirect transactions with one or
22 more related members during the taxable year to the extent deductible in
23 calculating federal taxable income.
24 (ii) Exceptions. (A) The adjustment required in this paragraph shall
25 not apply to the portion of the royalty payment that the taxpayer estab-
26 lishes, by clear and convincing evidence of the type and in the form
27 specified by the commissioner of finance, meets all of the following
28 requirements: (I) the related member was subject to tax in this city or
29 another city within the United States or a foreign nation or some combi-
30 nation thereof on a tax base that included the royalty payment paid,
31 accrued or incurred by the taxpayer; (II) the related member during the
32 same taxable year directly or indirectly paid, accrued or incurred such
33 portion to a person that is not a related member; and (III) the trans-
34 action giving rise to the royalty payment between the taxpayer and the
35 related member was undertaken for a valid business purpose.
36 (B) The adjustment required in this paragraph shall not apply if the
37 taxpayer establishes, by clear and convincing evidence of the type and
38 in the form specified by the commissioner of finance, that: (I) the
39 related member was subject to tax on or measured by its net income in
40 this city or another city within the United States, or some combination
41 thereof; (II) the tax base for said tax included the royalty payment
42 paid, accrued or incurred by the taxpayer; and (III) the aggregate
43 effective rate of tax applied to the related member in those jurisdic-
44 tions is no less than eighty percent of the statutory rate of tax that
45 applied to the taxpayer under section 11-604 of this chapter for the
46 taxable year.
47 (C) The adjustment required in this paragraph shall not apply if the
48 taxpayer establishes, by clear and convincing evidence of the type and
49 in the form specified by the commissioner of finance, that: (I) the
50 royalty payment was paid, accrued or incurred to a related member organ-
51 ized under the laws of a country other than the United States; (II) the
52 related member's income from the transaction was subject to a comprehen-
53 sive income tax treaty between such country and the United States; (III)
54 the related member was subject to tax in a foreign nation on a tax base
55 that included the royalty payment paid, accrued or incurred by the
56 taxpayer; (IV) the related member's income from the transaction was
S. 8578 686
1 taxed in such country at an effective rate of tax at least equal to that
2 imposed by this city; and (V) the royalty payment was paid, accrued or
3 incurred pursuant to a transaction that was undertaken for a valid busi-
4 ness purpose and using terms that reflect an arm's length relationship.
5 (D) The adjustment required in this paragraph shall not apply if the
6 taxpayer and the commissioner of finance agree in writing to the appli-
7 cation or use of alternative adjustments or computations. The commis-
8 sioner of finance may, in his or her discretion, agree to the applica-
9 tion or use of alternative adjustments or computations when he or she
10 concludes that in the absence of such agreement the income of the
11 taxpayer would not be properly reflected.
12 (o) In the case of a taxpayer that is not an eligible farmer as
13 defined in subsection (n) of section six hundred six of the tax law, the
14 deductions allowable under sections one hundred seventy-nine, one
15 hundred sixty-seven and one hundred sixty-eight of the internal revenue
16 code with respect to a sport utility vehicle that is not a passenger
17 automobile as defined in paragraph five of subsection (d) of section two
18 hundred eighty-F of the internal revenue code, determined as if such
19 sport utility vehicle were a passenger automobile as defined in such
20 paragraph five. For purposes of subparagraph sixteen of paragraph (b)
21 and paragraph (k) of this subdivision, the terms qualified resurgence
22 zone property and qualified New York Liberty Zone property described in
23 paragraph two of subsection b of section fourteen hundred-L of the
24 internal revenue code shall not include any sport utility vehicle that
25 is not a passenger automobile as defined in paragraph five of subsection
26 (d) of section two hundred eighty-F of the internal revenue code.
27 (p) Upon the disposition of property to which paragraph (o) of this
28 subdivision applies, the amount of any gain or loss includible in entire
29 net income shall be adjusted to reflect the inclusions and exclusions
30 from entire net income pursuant to subparagraph thirteen of paragraph
31 (a) and subparagraph seventeen of paragraph (b) of this subdivision
32 attributable to such property.
33 (q) Subtraction modification for community banks and small thrifts.
34 (1) A taxpayer that is a qualified community bank as defined in subpara-
35 graph two of this paragraph or a small thrift institution as defined in
36 subparagraph two-a of this paragraph shall be allowed a deduction in
37 computing entire net income equal to the amount computed under subpara-
38 graph three of this paragraph.
39 (2) To be a qualified community bank, a taxpayer must satisfy the
40 following conditions:
41 (i) It is a bank or trust company organized under or subject to the
42 provisions of article three of the banking law or a comparable provision
43 of the laws of another state, or a national banking association.
44 (ii) The average value during the taxable year of the assets of the
45 taxpayer, or, if the taxpayer is included in a combined report, the
46 assets of the combined reporting group of the taxpayer under section
47 11-654.3 of this subchapter, must not exceed eight billion dollars.
48 (2-a) To be a small thrift institution, a taxpayer must satisfy the
49 following conditions:
50 (i) It is a savings bank, a savings and loan association, or other
51 savings institution chartered and supervised as such under federal or
52 state law.
53 (ii) The average value during the taxable year of the assets of the
54 taxpayer, or, if the taxpayer is included in a combined report, the
55 assets of the combined reporting group of the taxpayer under section
56 11-654.3 of this subchapter, must not exceed eight billion dollars.
S. 8578 687
1 (3)(i) The subtraction modification shall be computed as follows:
2 (A) Multiply the taxpayer's net interest income from loans during the
3 taxable year by a fraction, the numerator of which is the gross interest
4 income during the taxable year from qualifying loans and the denominator
5 of which is the gross interest income during the taxable year from all
6 loans.
7 (B) Multiply the amount determined in subclause (A) of this clause by
8 fifty percent. This product is the amount of the deduction allowed under
9 this paragraph.
10 (ii)(A) Net interest income from loans shall mean gross interest
11 income from loans less gross interest expense from loans. Gross interest
12 expense from loans is determined by multiplying gross interest expense
13 by a fraction, the numerator of which is the average total value of
14 loans owned by the thrift institution or community bank during the taxa-
15 ble year and the denominator of which is the average total assets of the
16 thrift institution or community bank during the taxable year.
17 (B) Measurement of assets. For purposes of this clause: (I) Total
18 assets are those assets that are properly reflected on a balance sheet,
19 computed in the same manner as is required by the banking regulator of
20 the taxpayers included in the combined return. In addition, total assets
21 includes leased real property that is not properly reflected on a
22 balance sheet.
23 (II) Assets will only be included if the income or expenses of which
24 are properly reflected, or would have been properly reflected if not
25 fully depreciated or expensed, or depreciated or expensed to a nominal
26 amount, in the computation of the taxpayer's entire net income for the
27 taxable year. Assets will not include deferred tax assets and intangible
28 assets identified as "goodwill".
29 (III) Tangible real and personal property, such as buildings, land,
30 machinery, and equipment, shall be valued at cost. Leased real property
31 that is not properly reflected on the balance sheet will be valued at
32 the annual lease payment multiplied by eight. Intangible property, such
33 as loans and investments, shall be valued at book value exclusive of
34 reserves.
35 (IV) Average assets are computed using the assets measured on the
36 first day of the taxable year, and on the last day of each subsequent
37 quarter of the taxable year or month or day during the taxable year.
38 (iii) A qualifying loan is a loan that meets the conditions specified
39 in subclause (A) of this clause and subclause (B) of this clause.
40 (A) The loan is originated by the qualified community bank or small
41 thrift institution or purchased by the qualified community bank or small
42 thrift institution immediately after its origination in connection with
43 a commitment to purchase made by the bank or thrift institution prior to
44 the loan's origination.
45 (B) The loan is a small business loan or a residential mortgage loan,
46 the principal amount of which loan is five million dollars or less, and
47 either the borrower is located in this city as determined under section
48 11-654.2 of this subchapter and the loan is not secured by real proper-
49 ty, or the loan is secured by real property located in the city.
50 (C) A loan that meets the definition of a qualifying loan in a prior
51 taxable year, including years prior to the effective date of this para-
52 graph, remains a qualifying loan in taxable years during and after which
53 such loan is acquired by another corporation in the taxpayer's combined
54 reporting group under section 11-654.3 of this subchapter.
55 (r) A small thrift institution or a qualified community bank, as
56 defined in paragraph (q) of this subdivision, that maintained a captive
S. 8578 688
1 REIT on April first, two thousand fourteen shall utilize a REIT
2 subtraction equal to one hundred sixty percent of the dividends paid
3 deductions allowed to that captive REIT for the taxable year for federal
4 income tax purposes and shall not be allowed to utilize the subtraction
5 modification for community banks and small thrifts under paragraph (q)
6 of this subdivision or the subtraction modification for qualified resi-
7 dential loan portfolios under paragraph (s) of this subdivision in any
8 tax year in which such thrift institution or community bank maintains
9 that captive REIT.
10 (s) Subtraction modification for qualified residential loan portfo-
11 lios. (1)(i) A taxpayer that is either a thrift institution as defined
12 in subparagraph three of this paragraph or a qualified community bank as
13 defined in subparagraph two of paragraph (q) of this subdivision and
14 maintains a qualified residential loan portfolio as defined in subpara-
15 graph two of this paragraph shall be allowed as a deduction in computing
16 entire net income the amount, if any, by which (A) thirty-two percent of
17 its entire net income determined without regard to this paragraph
18 exceeds (B) the amounts deducted by the taxpayer pursuant to sections
19 one hundred sixty-six and five hundred eighty-five of the internal
20 revenue code less any amounts included in federal taxable income as a
21 result of a recovery of a loan.
22 (ii)(A) If the taxpayer is in a combined report under section 11-654.3
23 of this subchapter, this deduction will be computed on a combined basis.
24 In that instance, the entire net income of the combined reporting group
25 for purposes of this paragraph shall be multiplied by a fraction, the
26 numerator of which is the average total assets of all the thrift insti-
27 tutions and qualified community banks included in the combined report
28 and the denominator of which is the average total assets of all the
29 corporations included in the combined report.
30 (B) Measurement of assets. For purposes of this paragraph: (I) Total
31 assets are those assets that are properly reflected on a balance sheet,
32 computed in the same manner as is required by the banking regulator of
33 the taxpayers included in the combined return. In addition, total assets
34 includes leased real property that is not properly reflected on a
35 balance sheet.
36 (II) Assets will only be included if the income or expenses of which
37 are properly reflected, or would have been properly reflected if not
38 fully depreciated or expensed, or depreciated or expensed to a nominal
39 amount, in the computation of the combined group's entire net income for
40 the taxable year. Assets will not include deferred tax assets and intan-
41 gible assets identified as "goodwill".
42 (III) Tangible real and personal property, such as buildings, land,
43 machinery, and equipment shall be valued at cost. Leased real property
44 that is not properly reflected on a balance sheet will be valued at the
45 annual lease payment multiplied by eight. Intangible property, such as
46 loans and investments, shall be valued at book value exclusive of
47 reserves.
48 (IV) Intercorporate stockholdings and bills, notes and accounts
49 receivable, and other intercorporate indebtedness between the corpo-
50 rations included in the combined report shall be eliminated.
51 (V) Average assets are computed using the assets measured on the first
52 day of the taxable year, and on the last day of each subsequent quarter
53 of the taxable year or month or day during the taxable year.
54 (2) Qualified residential loan portfolio. (i) A taxpayer maintains a
55 qualified residential loan portfolio if at least sixty percent of the
56 amount of the total assets at the close of the taxable year of the
S. 8578 689
1 thrift institution or qualified community bank consists of the assets
2 described in subclauses (A) through (L) of this clause, with the appli-
3 cation of the rule in the last undesignated subclause of this clause. If
4 the taxpayer is a member of a combined group, the determination of
5 whether there is a qualified residential loan portfolio will be made by
6 aggregating the assets of the thrift institutions and qualified communi-
7 ty banks that are members of the combined group. Assets: (A) cash, which
8 includes cash and cash equivalents including cash items in the process
9 of collection, deposits with other financial institutions, including
10 corporate credit unions, balances with federal reserve banks and federal
11 home loan banks, federal funds sold, and cash and cash equivalents on
12 hand. Cash shall not include any balances serving as collateral for
13 securities lending transactions; (B) obligations of the United States or
14 of a state or political subdivision thereof, and stock or obligations of
15 a corporation which is an instrumentality or a government sponsored
16 enterprise of the United States or of a state or political subdivision
17 thereof; (C) loans secured by a deposit or share of a member; (D) loans
18 secured by an interest in real property which is, or, from the proceeds
19 of the loan, will become, residential real property or real property
20 used primarily for church purposes, loans made for the improvement of
21 residential real property or real property used primarily for church
22 purposes, provided that for purposes of this subclause, residential real
23 property shall include single or multi-family dwellings, facilities in
24 residential developments dedicated to public use or property used on a
25 nonprofit basis for residents, and mobile homes not used on a transient
26 basis; (E) property acquired through the liquidation of defaulted loans
27 described in subclause (D) of this clause; (F) any regular or residual
28 interest in a REMIC, as such term is defined in section eight hundred
29 sixty-D of the internal revenue code, but only in the proportion which
30 the assets of such REMIC consist of property described in subclauses (A)
31 through (E) of this clause, except that if ninety-five percent or more
32 of the assets of such REMIC are assets described in such subclauses, the
33 entire interest in the REMIC shall qualify; (G) any mortgage-backed
34 security which represents ownership of a fractional undivided interest
35 in a trust, the assets of which consist primarily of mortgage loans,
36 provided that the real property which serves as security for the loans
37 is, or from the proceeds of the loan, will become, the type of property
38 described in subclause (D) of this clause and any collateralized mort-
39 gage obligation, the security for which consists primarily of mortgage
40 loans that maintain as security the type of property described in
41 subclause (D) of this clause; (H) certificates of deposit in, or obli-
42 gations of, a corporation organized under a state law which specifically
43 authorizes such corporation to insure the deposits or share accounts of
44 member associations; (I) loans secured by an interest in educational,
45 health, or welfare institutions or facilities, including structures
46 designed or used primarily for residential purposes for students, resi-
47 dents, and persons under care, employees, or members of the staff of
48 such institutions or facilities; (J) loans made for the payment of
49 expenses of college or university education or vocational training; (K)
50 property used by the taxpayer in support of business which consists
51 principally of acquiring the savings of the public and investing in
52 loans; and (L) loans for which the taxpayer is the creditor and which
53 are wholly secured by loans described in subclause (D) of this clause.
54 The value of accrued interest receivable and any loss-sharing commit-
55 ment or other loan guaranty by a governmental agency will be considered
S. 8578 690
1 part of the basis in the loans to which the accrued interest or loss
2 protection applies.
3 (ii) At the election of the taxpayer, the percentage specified in
4 clause (i) of this subparagraph shall be applied on the basis of the
5 average assets outstanding during the taxable year, in lieu of the close
6 of the taxable year. The taxpayer can elect to compute an average using
7 the assets measured on the first day of the taxable year and on the last
8 day of each subsequent quarter, or month or day during the taxable year.
9 This election may be made annually.
10 (iii) For purposes of subclause (D) of clause (i) of this subpara-
11 graph, if a multifamily structure securing a loan is used in part for
12 nonresidential use purposes, the entire loan is deemed a residential
13 real property loan if the planned residential use exceeds eighty percent
14 of the property's planned use, measured, at the taxpayer's election, by
15 using square footage or gross rental revenue, and determined as of the
16 time the loan is made.
17 (iv) For purposes of subclause (D) of clause (i) of this subparagraph,
18 loans made to finance the acquisition or development of land shall be
19 deemed to be loans secured by an interest in residential real property
20 if there is a reasonable assurance that the property will become resi-
21 dential real property within a period of three years from the date of
22 acquisition of such land; provided, however, this shall not apply for
23 any taxable year unless, within such three-year period, such land
24 becomes residential real property. For purposes of determining whether
25 any interest in a REMIC qualifies under subclause (F) of clause (i) of
26 this subparagraph, any regular interest in another REMIC held by such
27 REMIC shall be treated as a loan described in subclauses (A) through (E)
28 under principles similar to the principle of such subclause (F), except
29 that if such REMICs are part of a tiered structure, they shall be treat-
30 ed as one REMIC for purposes of such subclause (F).
31 (3) For purposes of this paragraph, a "thrift institution" is a
32 savings bank, a savings and loan association, or other savings institu-
33 tion chartered and supervised as such under federal or state law.
34 (t) Subtraction modification for qualified affordable housing and low
35 income community loans.
36 (1) A taxpayer that owns a qualifying loan within the meaning of
37 clause (iii) of subparagraph two of this paragraph shall be allowed a
38 deduction in computing entire net income equal to the amount computed
39 under subparagraph two of this paragraph.
40 (2)(i) The deduction allowed in subparagraph one of this paragraph
41 shall be equal to:
42 (A) if the total average value during the taxable year of the assets
43 of the taxpayer, or if the taxpayer is included in a combined report,
44 the assets of the combined reporting group of the taxpayer under section
45 11-654.3 of this subchapter, does not exceed one hundred billion
46 dollars, the taxpayer's net interest income from qualifying loans, or
47 (B) if the total average value during the taxable year of the assets
48 of the taxpayer, or if the taxpayer is included in a combined report,
49 the assets of the combined reporting group of the taxpayer under section
50 11-654.3 of this subchapter, exceeds one hundred billion dollars but is
51 less than one hundred fifty billion dollars, the taxpayer's net interest
52 income from qualifying loans multiplied by a fraction, the numerator of
53 which is one hundred fifty billion dollars minus the total average value
54 during the taxable year of the assets of the taxpayer, or if the taxpay-
55 er is included in a combined report, the assets of the combined report-
S. 8578 691
1 ing group of the taxpayer under section 11-654.3 of this subchapter, and
2 the denominator of which is fifty billion dollars.
3 (ii)(A) Net interest income from qualifying loans shall mean the
4 taxpayer's net interest income from loans during the taxable year multi-
5 plied by a fraction, the numerator of which is the gross interest income
6 during the taxable year from qualifying loans and the denominator of
7 which is the gross interest income from all loans.
8 (B) Net interest income from loans shall mean gross interest income
9 during the taxable year from loans less gross interest expense from
10 loans. Gross interest expense from loans is determined by multiplying
11 gross interest expense by a fraction, the numerator of which is the
12 average total value of loans owned by the taxpayer during the taxable
13 year and the denominator of which is the average total assets of the
14 taxpayer for the year.
15 (C) Measurement of assets. For purposes of this paragraph:
16 (I) Total assets are those assets that are properly reflected on a
17 balance sheet, computed in the same manner as is required by the banking
18 regulator, if applicable, of the taxpayers included in the combined
19 return. In addition, total assets includes leased real property that is
20 not properly reflected on a balance sheet.
21 (II) Assets will only be included if the income or expenses of which
22 are properly reflected, or would have been properly reflected if not
23 fully depreciated or expensed, or depreciated or expensed to a nominal
24 amount, in the computation of the taxpayer's entire net income for the
25 taxable year. Assets will not include deferred tax assets and intangible
26 assets identified as "goodwill".
27 (III) Tangible real and personal property, such as buildings, land,
28 machinery, and equipment, shall be valued at cost. Leased real property
29 that is not properly reflected on a balance sheet will be valued at the
30 annual lease payment multiplied by eight. Intangible property, such as
31 loans and investments, shall be valued at book value exclusive of
32 reserves.
33 (IV) Average assets are computed using the assets measured on the
34 first day of the taxable year, and on the last day of each subsequent
35 quarter of the taxable year or month or day during the taxable year.
36 (iii) A qualifying loan is a loan that meets the conditions specified
37 in subclause (A) through subclause (E) of this clause.
38 (A) The loan is originated by the taxpayer lender or purchased by the
39 taxpayer immediately after its origination in connection with a commit-
40 ment to purchase made by the taxpayer prior to the loan's origination.
41 (B) Satisfies conditions of item (I) or (II) of this subclause.
42 (I) The loan is secured by a housing accommodation located within the
43 city, where there are rental units in such housing accommodation that
44 are qualifying units, which for purposes of this subclause, means units
45 subject to rent control, rent stabilization or to a regulatory agree-
46 ment, provided that, each such loan will be considered a qualifying loan
47 for purposes of this paragraph only in proportion to a percentage equal
48 to the number of qualifying units divided by the total number of all
49 residential and commercial units located on the site of the real proper-
50 ty securing the loan, as determined as of the date the loan is made.
51 (II) To the extent not included in item (I) of this subclause, loans
52 secured by residential real property located in a low-income community.
53 For purposes of this paragraph, low-income community areas are census
54 tracts within the city in which the poverty rate for such tract is at
55 least twenty percent and the median family income for such tract does
56 not exceed eighty percent of metropolitan area median family income.
S. 8578 692
1 This determination will be made by reference to the poverty and median
2 family income census data for application of section forty-five-D of the
3 internal revenue code.
4 (C) The loan is not treated as a qualifying loan in the computation of
5 a subtraction from entire net income pursuant to paragraph (q) of this
6 subdivision.
7 (D) If the taxpayer applies a subtraction pursuant to paragraph (r) of
8 this subdivision, the interest or net gains from the loan are not recog-
9 nized by a captive REIT as defined in section 11-601 of this chapter.
10 (E) A loan that meets the definition of a qualifying loan in a prior
11 taxable year, including years prior to the effective date of this para-
12 graph, remains a qualifying loan in taxable years during and after which
13 such loan is acquired by another corporation in the taxpayer's combined
14 reporting group under section 11-654.3 of this subchapter.
15 (iv) For purposes of this paragraph, the following terms shall mean:
16 (A) "Housing accommodations" shall mean a multiple dwelling that
17 contains at least five dwelling units together with the land on which
18 such structure is situated.
19 (B) "Regulatory agreement" shall mean a written agreement with or
20 approved by any local, municipal, state, federal or other government
21 agency that requires the provision of housing accommodations for fami-
22 lies and persons of low or moderate income, and binds the owner of such
23 real property and its successors and assigns. A regulatory agreement may
24 include such other terms and conditions as the locality, municipality,
25 state, or federal government shall determine.
26 (C) "Rent stabilization" shall mean, collectively, the rent stabiliza-
27 tion law of nineteen hundred sixty-nine, the rent stabilization code,
28 and the emergency tenant protection act of nineteen seventy-four,
29 together with any successor statutes or regulations addressing substan-
30 tially the same subject matter.
31 9. (a) The term "calendar year" means a period of twelve calendar
32 months, or any shorter period beginning on the date the taxpayer becomes
33 subject to the tax imposed by this subchapter, ending on the thirty-
34 first day of December, provided the taxpayer keeps its books on the
35 basis of such period or on the basis of any period ending on any day
36 other than the last day of a calendar month, or provided the taxpayer
37 does not keep books, and includes, in case the taxpayer changes the
38 period on the basis of which it keeps its books from a fiscal year to a
39 calendar year, the period from the close of its last old fiscal year up
40 to and including the following December thirty-first.
41 (b) The term "fiscal year" means a period of twelve calendar months,
42 or any shorter period beginning on the date the taxpayer becomes subject
43 to the tax imposed by this subchapter, ending on the last day of any
44 month other than December, provided the taxpayer keeps its books on the
45 basis of such period, and includes, in case the taxpayer changes the
46 period on the basis of which it keeps its books from a calendar year to
47 a fiscal year or from one fiscal year to another fiscal year, the period
48 from the close of its last old calendar or fiscal year up to the date
49 designated as the close of its new fiscal year.
50 10. The term "tangible personal property" means corporeal personal
51 property, such as machinery, tools, implements, goods, wares and
52 merchandise, and does not mean money, deposits in banks, shares of
53 stock, bonds, notes, credits or evidences of an interest property and
54 evidences of debt.
S. 8578 693
1 11. The term "internal revenue code" means, unless otherwise specif-
2 ically stated in this subchapter, the internal revenue code of 1986, as
3 amended.
4 12. The term "combinable captive insurance company" means an entity
5 that is treated as an association taxable as a corporation under the
6 internal revenue code:
7 (a) more than fifty percent of the voting stock of which is owned or
8 controlled, directly or indirectly, by a single entity that is treated
9 as an association taxable as a corporation under the internal revenue
10 code and not exempt from federal income tax;
11 (b) that is licensed as a captive insurance company under the laws of
12 this state or another jurisdiction;
13 (c) whose business includes providing, directly and indirectly, insur-
14 ance or reinsurance covering the risks of its parent and/or members of
15 its affiliated group; and
16 (d) fifty percent or less of whose gross receipts for the taxable year
17 consist of premiums from arrangements that constitute insurance for
18 federal income tax purposes.
19 For purposes of this subdivision, "affiliated group" has the same
20 meaning as that term is given in section fifteen hundred four of the
21 internal revenue code, except that the term "common parent corporation"
22 in that section is deemed to mean any person, as defined in section
23 seven thousand seven hundred one of the internal revenue code and refer-
24 ences to "at least eighty percent" in section fifteen hundred four of
25 the internal revenue code are to be read as "fifty percent or more;"
26 section fifteen hundred four of the internal revenue code is to be read
27 without regard to the exclusions provided for in subsection (b) of that
28 section; "premiums" has the same meaning as that term is given in para-
29 graph one of subdivision (c) of section fifteen hundred ten of the tax
30 law, except that it includes consideration for annuity contracts and
31 excludes any part of the consideration for insurance, reinsurance or
32 annuity contracts that do not provide bona fide insurance, reinsurance
33 or annuity benefits; and "gross receipts" includes the amounts included
34 in gross receipts for purposes of paragraph fifteen of subsection (c) of
35 section five hundred one of the internal revenue code, except that those
36 amounts also include all premiums as defined in this subdivision.
37 13. The term "partnership" includes a syndicate, group, pool, joint
38 venture, or other unincorporated organization, through or by means of
39 which any business, financial operation, or venture is carried on, and
40 which is not a corporation as defined in subdivision one of this
41 section, or a trust or estate that is separate from its owner under part
42 one of subchapter J of chapter one of subtitle A of the internal revenue
43 code; and the term "partner" includes a member in such syndicate, group,
44 pool, joint venture, or organization.
45 § 11-653 Imposition of tax; exemptions. 1. (a) For the privilege of
46 doing business, or of employing capital, or of owning or leasing proper-
47 ty in the city in a corporate or organized capacity, or of maintaining
48 an office in the city, or of deriving receipts from activity in the
49 city, for all or any part of each of its fiscal or calendar years, every
50 domestic or foreign corporation, except corporations specified in subdi-
51 vision four of this section, shall annually pay a tax, upon the basis of
52 its business income, or upon such other basis as may be applicable as
53 hereinafter provided, for such fiscal or calendar year or part thereof,
54 on a report which shall be filed, except as hereinafter provided, on or
55 before the fifteenth day of March next succeeding the close of each such
56 year, or, in the case of a taxpayer which reports on the basis of a
S. 8578 694
1 fiscal year, within two and one-half months after the close of such
2 fiscal year, and shall be paid as hereinafter provided.
3 (b) A corporation is deriving receipts from activity in the city if it
4 has receipts within the city of one million dollars or more in a taxable
5 year. For purposes of this section, the term "receipts" means the
6 receipts that are subject to the allocation rules set forth in section
7 11-654.2 of this subchapter, and the term "receipts within the city"
8 means the receipts included in the numerator of the receipts fraction
9 determined under section 11-654.2 of this subchapter. For purposes of
10 this paragraph, receipts from processing credit card transactions for
11 merchants include merchant discount fees received by the corporation.
12 (c) A corporation is doing business in the city if (1) it has issued
13 credit cards to one thousand or more customers who have a mailing
14 address within the city as of the last day of its taxable year, (2) it
15 has merchant customer contracts with merchants and the total number of
16 locations covered by those contracts equals one thousand or more
17 locations in the city to whom the corporation remitted payments for
18 credit card transactions during the taxable year, or (3) the sum of the
19 number of customers described in subparagraph one of this paragraph plus
20 the number of locations covered by its contracts described in subpara-
21 graph two of this paragraph equals one thousand or more. As used in this
22 subdivision, the term "credit card" includes bank, credit, travel and
23 entertainment cards.
24 (d)(1) A corporation with less than one million dollars but at least
25 ten thousand dollars of receipts within the city in a taxable year that
26 is part of a unitary group that meets the ownership test under section
27 11-654.3 of this subchapter is deriving receipts from activity in the
28 city if the receipts within the city of the members of the unitary group
29 that have at least ten thousand dollars of receipts within the city in
30 the aggregate meet the threshold set forth in paragraph (b) of this
31 subdivision.
32 (2) A corporation that does not meet any of the thresholds set forth
33 in paragraph (c) of this subdivision but has at least ten customers, or
34 locations, or customers and locations, as described in paragraph (c) of
35 this subdivision, and is part of a unitary group that meets the owner-
36 ship test under section 11-654.3 of this subchapter, is doing business
37 in the city if the number of customers, locations, or customers and
38 locations, within the city of the members of the unitary group that have
39 at least ten customers, locations, or customers and locations, within
40 the city in the aggregate meets any of the thresholds set forth in para-
41 graph (c) of this subdivision.
42 (3) For purposes of this paragraph, any corporation described in para-
43 graph (c) of subdivision two of section 11-654.3 of this subchapter
44 shall not be considered.
45 (e) At the end of each year, the commissioner shall review the cumula-
46 tive percentage change in the consumer price index. The commissioner
47 shall adjust the receipt thresholds set forth in this subdivision if the
48 consumer price index has changed by ten percent or more since January
49 first, two thousand twenty-two, or since the date that the thresholds
50 were last adjusted under this subdivision. The thresholds shall be
51 adjusted to reflect the cumulative percentage change in the consumer
52 price index. The adjusted thresholds shall be rounded to the nearest one
53 thousand dollars. As used in this paragraph, "consumer price index"
54 means the consumer price index for all urban consumers (CPI-U) available
55 from the bureau of labor statistics of the United States department of
S. 8578 695
1 labor. Any adjustment shall apply to tax periods that begin after the
2 adjustment is made.
3 (f) If a partnership is doing business, employing capital, owning or
4 leasing property in the city, or maintaining an office in the city, or
5 deriving receipts from activity in the city, any corporation that is a
6 partner in such partnership shall be subject to tax under this subchap-
7 ter as described in the regulations of the commissioner of finance.
8 2. A foreign corporation shall not be deemed to be doing business,
9 employing capital, owning or leasing property, or maintaining an office
10 in the city, or deriving receipts from activity in the city, for the
11 purposes of this subchapter, by reason of:
12 (a) the maintenance of cash balances with banks or trust companies in
13 the city, or
14 (b) the ownership of shares of stock or securities kept in the city,
15 if kept in a safe deposit box, safe, vault or other receptacle rented
16 for the purpose, or if pledged as collateral security, or if deposited
17 with one or more banks or trust companies, or brokers who are members of
18 a recognized security exchange, in safekeeping or custody accounts, or
19 (c) the taking of any action by any such bank or trust company or
20 broker, which is incidental to the rendering of safekeeping or custodian
21 service to such corporation, or
22 (d) the maintenance of an office in the city by one or more officers
23 or directors of the corporation who are not employees of the corporation
24 if the corporation otherwise is not doing business in the city, and does
25 not employ capital or own or lease property in the city, or
26 (e) the keeping of books or records of a corporation in the city if
27 such books or records are not kept by employees of such corporation and
28 such corporation does not otherwise do business, employ capital, own or
29 lease property or maintain an office in the city, or
30 (f) any combination of such activities.
31 2-a. An alien corporation shall not be deemed to be doing business,
32 employing capital, owning or leasing property, or maintaining an office
33 in the city, or deriving receipts from activity in the city, for the
34 purposes of this subchapter, if its activities in the city are limited
35 solely to:
36 (a) investing or trading in stocks and securities for its own account
37 within the meaning of clause (ii) of subparagraph (A) of paragraph (2)
38 of subsection (b) of section eight hundred sixty-four of the internal
39 revenue code, or:
40 (b) investing or trading in commodities for its own account within the
41 meaning of clause (ii) of subparagraph (B) of paragraph (2) of
42 subsection (b) of section eight hundred sixty-four of the internal
43 revenue code, or
44 (c) any combination of activities described in paragraphs (a) and (b)
45 of this subdivision.
46 An alien corporation that under any provision of the internal revenue
47 code is not treated as a "domestic corporation" as defined in section
48 seven thousand seven hundred one of such code and has no effectively
49 connected income for the taxable year pursuant to clause three of the
50 opening paragraph of subdivision eight of section 11-652 of this
51 subchapter shall not be subject to tax under this subchapter for that
52 taxable year. For purposes of this subchapter, an alien corporation is a
53 corporation organized under the laws of a country, or any political
54 subdivision thereof, other than the United States, or organized under
55 the laws of a possession, territory or commonwealth of the United
56 States.
S. 8578 696
1 3. Any receiver, referee, trustee, assignee or other fiduciary, or any
2 officer or agent appointed by any court, who conducts the business of
3 any corporation, shall be subject to the tax imposed by this subchapter
4 in the same manner and to the same extent as if the business were
5 conducted by the agents or officers of such corporation. A dissolved
6 corporation which continues to conduct business shall also be subject to
7 the tax imposed by this subchapter.
8 4. (a) Corporations subject to tax under chapter eleven of this title,
9 any trust company organized under a law of this state all of the stock
10 of which is owned by not less than twenty savings banks organized under
11 a law of this state, housing companies organized and operating pursuant
12 to the provisions of article two of the private housing finance law,
13 housing development fund companies organized pursuant to the provisions
14 of article eleven of the private housing finance law, corporations
15 described in section three of the tax law, a corporation principally
16 engaged in the operation of marine vessels whose activities in the city
17 are limited exclusively to the use of property in interstate or foreign
18 commerce, provided, however, such a corporation will not be subject to
19 tax under this subchapter solely because it maintains an office in the
20 city, or employs capital in the city, in connection with such use of
21 property, a corporation principally engaged in the conduct of a ferry
22 business and operating between any of the boroughs of the city under a
23 lease granted by the city and a corporation principally engaged in the
24 conduct of an aviation, steamboat, ferry or navigation business, or two
25 or more of such businesses, all of the capital stock of which is owned
26 by a municipal corporation of this state, shall not be subject to tax
27 under this subchapter; provided, however, that any corporation, other
28 than (1) a utility corporation subject to the supervision of the state
29 department of public service, and (2) for taxable years beginning on or
30 after August first, two thousand two, a utility as defined in subdivi-
31 sion six of section 11-1101 of this title, which is subject to tax under
32 chapter eleven of this title as a vendor of utility services, shall be
33 subject to tax under this subchapter, but in computing the tax imposed
34 by this section pursuant to the provisions of clause (i) of subparagraph
35 one of paragraph (e) of subdivision one of section 11-654 of this
36 subchapter, business income allocated to the city pursuant to paragraph
37 (a) of subdivision three of such section shall be reduced by the
38 percentage which such corporation's gross operating income subject to
39 tax under chapter eleven of this title is of its gross operating income.
40 (b) The term "gross operating income", when used in paragraph (a) of
41 this subdivision, means receipts received in or by reason of any trans-
42 action had and consummated in the city, including cash, credits and
43 property of any kind or nature, whether or not such transaction is made
44 for profit, without any deduction therefrom on account of the cost of
45 the property sold, the cost of materials used, labor or other services,
46 delivery costs or any other costs whatsoever, interest or discount paid
47 or any other expenses whatsoever.
48 (c) If it shall appear to the commissioner of finance that the appli-
49 cation of the provisions of paragraph (a) of this subdivision, does not
50 fairly and equitably reflect the portion of the taxpayer's business
51 income allocable to the city which is attributable to its city activ-
52 ities which are not taxable under chapter eleven of this title, the
53 commissioner of finance may prescribe other means or methods of deter-
54 mining such portion, including the use of the books and records of the
55 taxpayer, if the commissioner of finance finds that such means or meth-
56 ods used in keeping them fairly and equitably reflect such portion.
S. 8578 697
1 5. Intentionally omitted.
2 6. Intentionally omitted.
3 7. For any taxable year of a real estate investment trust, as defined
4 in section eight hundred fifty-six of the internal revenue code, in
5 which such trust is subject to federal income taxation under section
6 eight hundred fifty-seven of such code, such trust shall be subject to a
7 tax computed under either clause (i) of subparagraph one of paragraph
8 (e) of subdivision one of section 11-654 of this subchapter, or clause
9 (iv), whichever is greater. In the case of such a real estate investment
10 trust, including a captive REIT as defined in section 11-601 of this
11 chapter, the term "entire net income" means "real estate investment
12 trust taxable income" as defined in paragraph two of subdivision (b) of
13 section eight hundred fifty-seven, as modified by section eight hundred
14 fifty-eight, of the internal revenue code plus the amount taxable under
15 paragraph three of subdivision (b) of section eight hundred fifty-seven
16 of such code, subject to the modifications required by subdivision eight
17 of section 11-652 of this subchapter including the modifications
18 required by paragraphs (d) and (e) of subdivision three of section
19 11-654 of this subchapter.
20 8. For any taxable year of a regulated investment company, as defined
21 in section eight hundred fifty-one of the internal revenue code, in
22 which such company is subject to federal income taxation under section
23 eight hundred fifty-two of such code, such company shall be subject to a
24 tax computed under either clause one or four of subparagraph (a) of
25 paragraph E of subdivision one of section 11-654 of this subchapter,
26 whichever is greater. In the case of such a regulated investment compa-
27 ny, including a captive RIC as defined in section 11-601 of this chap-
28 ter, the term "entire net income" used in subdivision one of this
29 section means "investment company taxable income" as defined in para-
30 graph two of subdivision (b) of section eight hundred fifty-two, as
31 modified by section eight hundred fifty-five, of the internal revenue
32 code plus the amount taxable under paragraph three of subdivision (b) of
33 section eight hundred fifty-two of such code subject to the modifica-
34 tions required by subdivision eight of section 11-652 of this subchap-
35 ter, including the modification required by paragraphs (d) and (e) of
36 subdivision three of section 11-654 of this subchapter.
37 9. An organization described in paragraph two or twenty-five of
38 subsection (c) of section five hundred one of the internal revenue code
39 shall be exempt from all taxes imposed by this subchapter.
40 § 11-654 Computation of tax. 1. (a) Intentionally omitted.
41 (b) Intentionally omitted.
42 (c) Intentionally omitted.
43 (d) Intentionally omitted.
44 (e) The tax imposed by subdivision one of section 11-653 of this
45 subchapter shall be, in the case of each taxpayer:
46 (1) whichever of the following amounts is the greatest:
47 (i) an amount computed on its business income or the portion of such
48 business income allocated within the city as hereinafter provided,
49 subject to the application of paragraphs (j) and (k) of this subdivision
50 and any modification required by paragraphs (d) and (e) of subdivision
51 three of this section, at the rate of (1) nine per centum for financial
52 corporations, as defined in this clause, or (2) eight and eighty-five
53 one hundredths per centum for all other corporations. For purposes of
54 this clause, "financial corporation" means a corporation or, if the
55 corporation is included in a combined group, a combined group, that (A)
56 has total assets reflected on its balance sheet at the end of its taxa-
S. 8578 698
1 ble year in excess of one hundred billion dollars, computed under gener-
2 ally accepted accounting principles and (B)(I) allocates more than fifty
3 percent of the receipts included in the denominator of its receipts
4 fraction, determined under section 11-654.2 of this subchapter, pursuant
5 to subdivision five of section 11-654.2 of this subchapter for its taxa-
6 ble year, or (II) is itself or is included in a combined group in which
7 more than fifty percent of the total assets reflected on its balance
8 sheet at the end of its taxable year are held by one or more corpo-
9 rations that are classified as (a) registered under state law as a bank
10 holding company or registered under the Federal Bank Holding Company Act
11 of 1956 (12 U.S.C. § 1841, et seq., as amended), or registered as a
12 savings and loan holding company under the Federal National Housing Act
13 (12 U.S.C. 1701, as amended), (b) a national bank organized and existing
14 as a national bank association pursuant to the provisions of the
15 National Bank Act, 12 U.S.C. 21 et. seq., (c) a savings association or
16 federal savings bank as defined in the Federal Deposit Insurance Act, 12
17 U.S.C. § 1813(b)(1), (d) a bank, savings association, or thrift institu-
18 tion incorporated or organized under the laws of any state, (e) a corpo-
19 ration organized under the provisions of 12 U.S.C. §§ 611 to 631, (f) an
20 agency or branch or a foreign depository as defined in 12 U.S.C. § 3101,
21 (g) a registered securities or commodities broker or dealer registered
22 as such by the securities and exchange commission or the commodities
23 futures trading commission, which shall include an OTC derivatives deal-
24 er as defined under regulations of the securities and exchange commis-
25 sion at title 17, part 240, section 3b-12 of the code of federal regu-
26 lations (17 CFR 240.3b-12), or (h) any corporation whose voting stock is
27 more than fifty percent owned, directly or indirectly, by any person or
28 business entity described in subitems (a) through (g) of this item,
29 other than an insurance company taxable under article thirty-three of
30 the tax law; or
31 (ii) an amount computed by multiplying its total business capital, or
32 the portion thereof allocated within the city, as hereinafter provided,
33 (A) except as provided in subclauses (B) and (C) of this clause, by
34 fifteen one-hundredths per centum;
35 (B) in the case of a cooperative housing corporation as defined in the
36 internal revenue code, by four one-hundredths per centum;
37 (C) in the case of the portion of total business capital directly
38 attributable to a corporation that is or would be taxable under chapter
39 eleven of this title, except for a vendor of utility services that is
40 taxable under both chapter eleven of this title and this subchapter, or
41 a corporation that would have been taxable as an insurance corporation
42 under former part IV, title R, chapter forty-six of the administrative
43 code of the city of New York as in effect on June thirtieth, nineteen
44 hundred seventy-four, by seven and one-half one-hundredths per centum;
45 and
46 (D) subtracting ten thousand dollars from the sum of the amount of tax
47 computed pursuant to subclauses (A), (B) and (C) of this clause,
48 provided that if such amount of tax is less than zero it shall be deemed
49 to be zero; and
50 (E) provided that in no event shall the amount of tax computed pursu-
51 ant to subclause (D) of this clause on the taxpayer's total business
52 capital, or the portion thereof allocated within the city, exceed ten
53 million dollars, or
54 (iii) Intentionally omitted.
55 (iv) If New York city receipts are: Fixed dollar minimum
S. 8578 699
1 tax is:
2 Not more than $100,000 $25
3 More than $100,000 but not over $250,000 $75
4 More than $250,000 but not over $500,000 $175
5 More than $500,000 but not over $1,000,000 $500
6 More than $1,000,000 but not over $5,000,000 $1,500
7 More than $5,000,000 but not over $25,000,000 $3,500
8 More than $25,000,000 but not over $50,000,000 $5,000
9 More than $50,000,000 but not over $100,000,000 $10,000
10 More than $100,000,000 but not over $250,000,000 $20,000
11 More than $250,000,000 but not over $500,000,000 $50,000
12 More than $500,000,000 but not over $1,000,000,000 $100,000
13 Over $1,000,000,000 $200,000
14 For purposes of this clause, New York city receipts are the receipts
15 computed in accordance with section 11-654.2 of this subchapter for the
16 taxable year. If the taxable year is less than twelve months, the amount
17 prescribed by this clause shall be reduced by twenty-five percent if the
18 period for which the taxpayer is subject to tax is more than six months
19 but not more than nine months and by fifty percent if the period for
20 which the taxpayer is subject to tax is not more than six months. If the
21 taxable year is less than twelve months, the amount of New York city
22 receipts for purposes of this clause is determined by dividing the
23 amount of the receipts for the taxable year by the number of months in
24 the taxable year and multiplying the result by twelve.
25 (f) Intentionally omitted.
26 (g) Intentionally omitted.
27 (h) Intentionally omitted.
28 (i) Intentionally omitted.
29 (j) (1) If the amount of business income allocated within the city as
30 hereinafter provided is less than one million dollars, the amount
31 computed in clause (i) of subparagraph one of paragraph (e) of this
32 subdivision shall be at the rate of six and five-tenths per centum of
33 the amount of business income allocated within the city as hereinafter
34 provided, subject to any modification required by paragraphs (d) and (e)
35 of subdivision three of this section;
36 (2) Subject to subparagraph three of this paragraph, if the amount of
37 business income allocated within the city as hereinafter provided is one
38 million dollars or greater but less than one million five hundred thou-
39 sand dollars, the amount computed in clause (i) of subparagraph one of
40 paragraph (e) of this subdivision shall be at the rate of (i) six and
41 five-tenths per centum, plus (ii) two and thirty-five one-hundredths per
42 centum multiplied by a fraction the numerator of which is allocated
43 business income less one million dollars and the denominator of which is
44 five hundred thousand dollars, of the amount of business income allo-
45 cated within the city as hereinafter provided, subject to any modifica-
46 tion required by paragraphs (d) and (e) of subdivision three of this
47 section;
48 (3) Provided, however, notwithstanding anything to the contrary, if
49 the amount of business income before allocation is two million dollars
50 or greater but less than three million dollars, the rate of tax provided
51 for in this paragraph shall not be less than (i) six and five-tenths per
52 centum, plus (ii) two and thirty-five one-hundredths per centum multi-
53 plied by a fraction the numerator of which is business income before
54 allocation less two million dollars and the denominator of which is one
55 million dollars, and provided, however, notwithstanding anything to the
S. 8578 700
1 contrary, if the amount of business income before allocation is three
2 million dollars or greater, the rate of tax shall be eight and eighty-
3 five one-hundredths percentum or, in the case of a financial corpo-
4 ration, as defined in clause (i) of subparagraph one of paragraph (e) of
5 subdivision one of section 11-654, if the amount of business income
6 before allocation is three million dollars or greater the rate of tax
7 shall be nine per centum.
8 (k)(1) For qualified New York manufacturing corporations as defined in
9 subparagraph four of this paragraph, if the amount of business income
10 allocated within the city as hereinafter provided is less than ten
11 million dollars, the amount computed in clause (i) of subparagraph one
12 of paragraph (e) of this subdivision shall be at the rate of four and
13 four hundred twenty-five one thousandths per centum, of its business
14 income allocated within the city as hereinafter provided, subject to any
15 modification required by paragraphs (d) and (e) of subdivision three of
16 this section;
17 (2) Subject to subparagraph three of this paragraph for qualified New
18 York manufacturing corporations as defined in subparagraph four of this
19 paragraph, if the amount of business income allocated within the city as
20 hereinafter provided is ten million dollars or greater but less than
21 twenty million dollars, the amount computed in clause (i) of subpara-
22 graph one of paragraph (e) of this subdivision shall be at the rate of
23 (i) four and four hundred twenty-five one-thousandths per centum, plus
24 (ii) four and four hundred twenty-five one-thousandths per centum multi-
25 plied by a fraction the numerator of which is allocated business income
26 less ten million dollars and the denominator of which is ten million
27 dollars, of its business income or the portion of such business income
28 allocated within the city as hereinafter provided, subject to any
29 modification required by paragraphs (d) and (e) of subdivision three of
30 this section;
31 (3) Notwithstanding anything to the contrary, if the amount of busi-
32 ness income before allocation is twenty million dollars or greater but
33 less than forty million dollars, the rate of tax provided for in this
34 paragraph shall not be less than (i) four and four hundred twenty-five
35 one-thousandths per centum, plus (ii) four and four hundred twenty-five
36 one-thousandths per centum multiplied by a fraction the numerator of
37 which is business income before allocation less twenty million dollars
38 and the denominator of which is twenty million dollars, and provided,
39 however, notwithstanding anything to the contrary, if the amount of
40 business income before allocation is forty million dollars or greater,
41 the rate of tax shall be eight and eighty-five one-hundredths per
42 centum.
43 (4)(i) As used in this subparagraph, the term "manufacturing corpo-
44 ration" means a corporation principally engaged in the manufacturing and
45 sale thereof of tangible personal property; and the term "manufacturing"
46 includes the process, including the assembly process (A) of working raw
47 materials into wares suitable for use or (B) which gives new shapes, new
48 qualities or new combinations to matter which already has gone through
49 some artificial process, by the use of machinery, tools, appliances and
50 other similar equipment. Moreover, in the case of a combined report, a
51 combined group shall be considered a "manufacturing corporation" for
52 purposes of this subparagraph only if the combined group during the
53 taxable year is principally engaged in the activities set forth in this
54 paragraph, or any combination thereof. A taxpayer or, in the case of a
55 combined report, a combined group, shall be "principally engaged" in
56 activities described in this subparagraph if, during the taxable year,
S. 8578 701
1 more than fifty percent of the gross receipts of the taxpayer or
2 combined group, respectively, are derived from receipts from the sale of
3 goods produced by such activities. In computing a combined group's gross
4 receipts, intercorporate receipts shall be eliminated.
5 (ii) A "qualified New York manufacturing corporation" is a manufactur-
6 ing corporation that has property in the state that is described in
7 subparagraph five of this paragraph and either (A) the adjusted basis of
8 such property for New York state tax purposes at the close of the taxa-
9 ble year is at least one million dollars or (B) more than fifty percent
10 of its real and personal property is located in the state.
11 (5) For purposes of subclause (A) of clause (ii) of subparagraph four
12 of this paragraph, property includes tangible personal property and
13 other tangible property, including buildings and structural components
14 of buildings, which are: depreciable pursuant to section one hundred
15 sixty-seven of the internal revenue code, have a useful life of four
16 years or more, are acquired by purchase as defined in subsection (d) of
17 section one hundred seventy-nine of the internal revenue code, have a
18 situs in the state and are principally used by the taxpayer in the
19 production of goods by manufacturing. Property used in the production of
20 goods shall include machinery, equipment or other tangible property
21 which is principally used in the repair and service of other machinery,
22 equipment or other tangible property used principally in the production
23 of goods and shall include all facilities used in the production opera-
24 tion, including storage of material to be used in production and of the
25 products that are produced.
26 2. The amount of investment capital and business capital shall be
27 determined by taking the average value of the gross assets included
28 therein, less liabilities deductible therefrom pursuant to the
29 provisions of subdivisions four and six of section 11-652 of this
30 subchapter, and, if the period covered by the report is other than a
31 period of twelve calendar months, by multiplying such value by the
32 number of calendar months or major parts thereof included in such peri-
33 od, and dividing the product thus obtained by twelve. For purposes of
34 this subdivision, real property and marketable securities shall be
35 valued at fair market value and the value of personal property other
36 than marketable securities shall be the value thereof shown on the books
37 and records of the taxpayer in accordance with generally accepted
38 accounting principles.
39 3. The portion of the business income of a taxpayer to be allocated to
40 the city shall be determined as follows:
41 (a) multiply its business income by a business allocation percentage
42 to be determined by:
43 (1) ascertaining the percentage which the average value of the taxpay-
44 er's real and tangible personal property, whether owned or rented to it,
45 within the city during the period covered by its report bears to the
46 average value of all the taxpayer's real and tangible personal property,
47 whether owned or rented to it, wherever situated during such period. For
48 the purpose of this subparagraph, the term "value of the taxpayer's real
49 and tangible personal property" shall mean the adjusted bases of such
50 properties for federal income tax purposes, except that in the case of
51 rented property such value shall mean the product of (i) eight and (ii)
52 the gross rents payable for the rental of such property during the taxa-
53 ble year; provided, however, that the taxpayer may make a one-time,
54 revocable election, pursuant to regulations promulgated by the commis-
55 sioner of finance to use fair market value as the value of all of its
56 real and tangible personal property, provided that such election is made
S. 8578 702
1 on or before the due date for filing a report under section 11-655 of
2 this subchapter for the taxpayer's first taxable year commencing on or
3 after January first, two thousand fifteen and provided that such
4 election shall not apply to any taxable year with respect to which the
5 taxpayer is included on a combined report unless each of the taxpayers
6 included on such report has made such an election which remains in
7 effect for such year or to any taxpayer that was subject to tax under
8 subchapter two of this chapter and did not have an election in effect
9 under subparagraph one of paragraph (a) of subdivision three of section
10 11-604 of this chapter on December thirty-first, two thousand fourteen;
11 (2) ascertaining the percentage determined under section 11-654.2 of
12 this subchapter;
13 (3) ascertaining the percentage of the total wages, salaries and other
14 personal service compensation, similarly computed, during such period of
15 employees within the city, except general executive officers, to the
16 total wages, salaries and other personal service compensation, similarly
17 computed, during such period of all the taxpayer's employees within and
18 without the city, except general executive officers; and
19 (4) adding together the percentages so determined and dividing the
20 result by the number of percentages.
21 (5) Intentionally omitted.
22 (6) Intentionally omitted.
23 (7) Intentionally omitted.
24 (8) Intentionally omitted.
25 (9) Intentionally omitted.
26 (10) Notwithstanding subparagraphs one through four of this paragraph,
27 the business allocation percentage, to the extent that it is computed by
28 reference to the percentages determined under subparagraphs one, two and
29 three of this paragraph, shall be computed in the manner set forth in
30 this subparagraph.
31 (i) Intentionally omitted.
32 (ii) Intentionally omitted.
33 (iii) Intentionally omitted.
34 (iv) Intentionally omitted.
35 (v) Intentionally omitted.
36 (vi) Intentionally omitted.
37 (vii) For taxable years beginning in two thousand fifteen, the busi-
38 ness allocation percentage shall be determined by adding together the
39 following percentages:
40 (A) the product of ten percent and the percentage determined under
41 subparagraph one of this paragraph;
42 (B) the product of eighty percent and the percentage determined under
43 subparagraph two of this paragraph; and
44 (C) the product of ten percent and the percentage determined under
45 subparagraph three of this paragraph.
46 (viii) For taxable years beginning in two thousand sixteen, the busi-
47 ness allocation percentage shall be determined by adding together the
48 following percentages:
49 (A) the product of six and one-half percent and the percentage deter-
50 mined under subparagraph one of this paragraph;
51 (B) the product of eighty-seven percent and the percentage determined
52 under subparagraph two of this paragraph; and
53 (C) the product of six and one-half percent and the percentage deter-
54 mined under subparagraph three of this paragraph.
S. 8578 703
1 (ix) For taxable years beginning in two thousand seventeen, the busi-
2 ness allocation percentage shall be determined by adding together the
3 following percentages:
4 (A) the product of three and one-half percent and the percentage
5 determined under subparagraph one of this paragraph;
6 (B) the product of ninety-three percent and the percentage determined
7 under subparagraph two of this paragraph; and
8 (C) the product of three and one-half percent and the percentage
9 determined under subparagraph three of this paragraph.
10 (x) For taxable years beginning after two thousand seventeen, the
11 business allocation percentage shall be the percentage determined under
12 subparagraph two of this paragraph.
13 (xi) The commissioner of finance shall promulgate rules necessary to
14 implement the provisions of this subparagraph under such circumstances
15 where any of the percentages to be determined under subparagraph one,
16 two or three of this paragraph cannot be determined because the taxpayer
17 has no property, receipts or wages within or without the city.
18 (xii) Notwithstanding the provisions of clauses (viii), (ix), and (x)
19 of this subparagraph, for taxable years beginning on or after January
20 first, two thousand eighteen, a taxpayer that has fifty million dollars
21 or less of receipts allocated to the city as determined under section
22 11-654.2 of this subchapter, or, if the taxpayer is included in a
23 combined group, a combined group that has fifty million dollars or less
24 of receipts allocated to the city as determined under section 11-654.2
25 of this subchapter, may make a one-time election to determine its busi-
26 ness allocation percentage by adding together the following percentages:
27 (A) the product of three and one-half percent and the percentage
28 determined under subparagraph one of this paragraph;
29 (B) the product of ninety-three percent and the percentage determined
30 under subparagraph two of this paragraph; and
31 (C) the product of three and one-half percent and the percentage
32 determined under subparagraph three of this paragraph.
33 The election provided for in this clause must be made on an original
34 or amended report filed pursuant to section 11-655 of this subchapter
35 for the taxpayer's or, if the taxpayer is included in a combined group,
36 the combined group's, first taxable year commencing on or after January
37 first, two thousand eighteen and shall remain in effect until revoked by
38 the taxpayer, or if the taxpayer is included in a combined group, the
39 combined group. An election shall be revoked under this clause on an
40 original or amended report filed pursuant to section 11-655 of this
41 subchapter for the taxpayer's, or if the taxpayer is included in a
42 combined group, the combined group's, first taxable year with respect to
43 which such revocation is to be effective. If the taxpayer is a member of
44 a combined group, an election or revocation by the taxpayer under this
45 clause shall apply to all members of the combined group.
46 (11) A foreign air carrier described in the first sentence of subpara-
47 graph one of paragraph (c-1) of subdivision eight of section 11-652 of
48 this subchapter shall determine its business allocation percentage
49 pursuant to subparagraphs one through four of this paragraph, as modi-
50 fied by subparagraph ten of this paragraph, except that the numerators
51 and denominators involved in such computation shall exclude property to
52 the extent employed in generating income excluded from entire net income
53 for the taxable year pursuant to paragraph (c-1) of subdivision eight of
54 section 11-652 of this subchapter, exclude such receipts as are excluded
55 from entire net income for the taxable year pursuant to paragraph (c-1)
56 of subdivision eight of section 11-652 of this subchapter, and exclude
S. 8578 704
1 wages, salaries or other personal service compensation which are direct-
2 ly attributable to the generation of income excluded from entire net
3 income for the taxable year pursuant to paragraph (c-1) of subdivision
4 eight of section 11-652 of this subchapter.
5 (b) Intentionally omitted.
6 (c) Intentionally omitted.
7 (d) In any taxable year when property is sold or otherwise disposed
8 of, with respect to which a deduction has been allowed pursuant to
9 subparagraph one or two of paragraph (d) of subdivision three of section
10 11-604 of this chapter or subdivision (k) of section 11-641 of this
11 chapter in any period in which the taxpayer was subject to tax under
12 subchapter two of this chapter, the gain or loss thereon entering into
13 the computation of federal taxable income shall be disregarded in
14 computing entire net income, and there shall be added to or subtracted
15 from the portion of entire net income allocated within the city the gain
16 or loss upon such sale or other disposition. In computing such gain or
17 loss the basis of the property sold or disposed of shall be adjusted to
18 reflect the deduction allowed with respect to such property pursuant to
19 subparagraph one or two of paragraph (d) of subdivision three of section
20 11-604 of this chapter. Provided, however, that no loss shall be recog-
21 nized for the purposes of this subparagraph with respect to a sale or
22 other disposition of property to a person whose acquisition thereof is
23 not a purchase as defined in subsection (d) of section one hundred
24 seventy-nine of the internal revenue code.
25 (e) In any taxable year when property is sold or otherwise disposed
26 of, with respect to which a deduction has been allowed pursuant to
27 subparagraph one or two of paragraph (e) of subdivision three of section
28 11-604 of this chapter in any period the taxpayer was subject to tax
29 under subchapter two of this chapter, the gain or loss thereon entering
30 into the computation of federal taxable income shall be disregarded in
31 computing entire net income, and there shall be added to or subtracted
32 from the portion of entire net income allocated within the city the gain
33 or loss upon such sale or other disposition. In computing such gain or
34 loss the basis of the property sold or disposed of shall be adjusted to
35 reflect the deduction allowed with respect to such property pursuant to
36 subparagraph one or two of paragraph (e) of subdivision three of section
37 11-604 of this chapter. Provided, however, that no loss shall be recog-
38 nized for the purposes of this subparagraph with respect to a sale or
39 other disposition of property to a person whose acquisition thereof is
40 not a purchase as defined in subsection (d) of section one hundred
41 seventy-nine of the internal revenue code.
42 4. The portion of the business capital of a taxpayer to be allocated
43 within the city shall be determined by multiplying the amount thereof by
44 the business allocation percentage determined as hereinabove provided.
45 4-a. A corporation that is a partner in a partnership shall compute
46 tax under this subchapter using any method required or permitted in
47 regulations of the commissioner of finance.
48 5. Intentionally omitted.
49 6. Intentionally omitted.
50 7. Intentionally omitted.
51 8. Intentionally omitted.
52 9. If it shall appear to the commissioner of finance that any business
53 allocation percentage determined as hereinabove provided does not prop-
54 erly reflect the activity, business, income or capital of a taxpayer
55 within the city, the commissioner of finance shall be authorized in his
56 or her discretion to adjust it, or the taxpayer may request that the
S. 8578 705
1 commissioner of finance adjust it, by (a) excluding one or more of the
2 factors therein, (b) including one or more other factors, such as
3 expenses, purchases, contract values, minus subcontract values, (c)
4 excluding one or more assets in computing such allocation percentage,
5 provided the income therefrom, is also excluded in determining entire
6 net income, or (d) any other similar or different method calculated to
7 effect a fair and proper allocation of the income and capital reasonably
8 attributable to the city. The party seeking the adjustment shall bear
9 the burden of proof to demonstrate that the business allocation percent-
10 age determined pursuant to this section does not result in a proper
11 reflection of the taxpayer's income or capital within the city and that
12 the proposed adjustment is appropriate. The commissioner of finance from
13 time to time shall publish all rulings of general public interest with
14 respect to any application of the provisions of this subdivision.
15 10. Intentionally omitted.
16 11. Intentionally omitted.
17 12. Intentionally omitted.
18 13. (a) In addition to any other credit allowed by this section, a
19 taxpayer shall be allowed a credit against the tax imposed by this
20 subchapter to be credited or refunded without interest, in the manner
21 hereinafter provided in this section.
22 (1)(i) Where a taxpayer shall have relocated to the city from a
23 location outside the state, and by such relocation shall have created a
24 minimum of one hundred industrial or commercial employment opportu-
25 nities; and where such taxpayer shall have entered into a written lease
26 for the relocation premises, the terms of which lease provide for
27 increased additional payments to the landlord which are based solely and
28 directly upon any increase or addition in real estate taxes imposed on
29 the leased premises, the taxpayer upon approval and certification by the
30 industrial and commercial incentive board as hereinafter provided shall
31 be entitled to a credit against the tax imposed by this subchapter. The
32 amount of such credit shall be an amount equal to the annual increased
33 payments actually made by the taxpayer to the landlord which are solely
34 and directly attributable to an increase or addition to the real estate
35 tax imposed upon the leased premises. Such credit shall be allowed only
36 to the extent that the taxpayer has not otherwise claimed said amount as
37 a deduction against the tax imposed by this subchapter.
38 (ii) The industrial and commercial incentive board in approving and
39 certifying to the qualifications of the taxpayer to receive such tax
40 credit shall first determine that the applicant has met the requirements
41 of this section, and further, that the granting of the tax credit to the
42 applicant is in the "public interest". In determining that the granting
43 of the tax credit is in the public interest, the board shall make affir-
44 mative findings that: the granting of the tax credit to the applicant
45 will not effect an undue hardship on similar taxpayers already located
46 within the city; the existence of this tax incentive has been instru-
47 mental in bringing about the relocation of the applicant to the city;
48 and the granting of the tax credit will foster the economic recovery and
49 economic development of the city.
50 (iii) The tax credit, if approved and certified by the industrial and
51 commercial incentive board, must be utilized annually by the taxpayer
52 for the length of the term of the lease or for a period not to exceed
53 ten years from the date of relocation whichever period is shorter.
54 (2) When used in this subdivision:
S. 8578 706
1 (i) "Employment opportunity" means the creation of a full time posi-
2 tion of gainful employment for an industrial or commercial employee and
3 the actual hiring of such employee for the said position.
4 (ii) "Industrial employee" means one engaged in the manufacture or
5 assembling of tangible goods or the processing of raw materials.
6 (iii) "Commercial employee" means one engaged in the buying, selling
7 or otherwise providing of goods or services other than on a retail
8 basis.
9 (iv) "Retail" means the selling or otherwise disposing or furnishing
10 of tangible goods or services directly to the ultimate user or consumer.
11 (v) "Full time position" means the hiring of an industrial or commer-
12 cial employee in a position of gainful employment where the number of
13 hours worked by such employees is not less than thirty hours during any
14 given work week.
15 (vi) "Industrial and commercial incentive board" means the board
16 created pursuant to part three of subchapter two of chapter two of this
17 title.
18 (b) The credit allowed under this subdivision for any taxable year
19 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
20 ited or refunded, without interest, in accordance with the provisions of
21 section 11-677 of this chapter.
22 14. (a) In addition to any other credit allowed by this section, a
23 taxpayer shall be allowed a credit against the tax imposed by this
24 subchapter to be credited or refunded without interest, in the manner
25 hereinafter provided in this section. The amount of such credit shall
26 be:
27 (1) A maximum of three hundred dollars for each commercial employment
28 opportunity and a maximum of five hundred dollars for each industrial
29 employment opportunity relocated to the city from an area outside the
30 state. Such credit shall be allowed to a taxpayer who relocates a mini-
31 mum of ten employment opportunities. The credit shall be allowed against
32 employment opportunity relocation costs incurred by the taxpayer. Such
33 credit shall be allowed only to the extent that the taxpayer has not
34 claimed a deduction for allowable employment opportunity relocation
35 costs. The credit allowed hereunder may be taken by the taxpayer in
36 whole or in part in the year in which the employment opportunity is
37 relocated by such taxpayer or either of the two years succeeding such
38 event, provided, however, no credit shall be allowed under this subdivi-
39 sion to a taxpayer for industrial employment opportunities relocated to
40 premises (i) that are within an industrial business zone established
41 pursuant to section 22-626 of the code of the preceding municipality and
42 (ii) for which a binding contract to purchase or lease was first entered
43 into by the taxpayer on or after July first, two thousand five.
44 The commissioner of finance is empowered to promulgate rules and regu-
45 lations and to prescribe the form of application to be used by a taxpay-
46 er seeking the such credit.
47 (2) When used in this subdivision:
48 (i) "Employment opportunity" means the creation of a full time posi-
49 tion of gainful employment for an industrial or commercial employee and
50 the actual hiring of such employee for the said position.
51 (ii) "Industrial employee" means one engaged in the manufacture or
52 assembling of tangible goods or the processing of raw materials.
53 (iii) "Commercial employee" means one engaged in the buying, selling
54 or otherwise providing of goods or services other than on a retail
55 basis.
S. 8578 707
1 (iv) "Retail" means the selling or otherwise disposing of tangible
2 goods directly to the ultimate user or consumer.
3 (v) "Full time position" means the hiring of an industrial or commer-
4 cial employee in a position of gainful employment where the number of
5 hours worked by such employee is not less than thirty hours during any
6 given work week.
7 (vi) "Employment opportunity relocation costs" means the costs
8 incurred by the taxpayer in moving furniture, files, papers and office
9 equipment into the city from a location outside the state; the costs
10 incurred by the taxpayer in the moving and installation of machinery and
11 equipment into the city from a location outside the state; the costs of
12 installation of telephones and other communications equipment required
13 as a result of the relocation to the city from a location outside the
14 state; the cost incurred in the purchase of office furniture and
15 fixtures required as a result of the relocation to the city from a
16 location outside the state; and the cost of renovation of the premises
17 to be occupied as a result of the relocation; provided, however, that
18 such renovation costs shall be allowable only to the extent that they do
19 not exceed seventy-five cents per square foot of the total area utilized
20 by the taxpayer in the occupied premises.
21 (b) The credit allowed under this section for any taxable year shall
22 be deemed to be an overpayment of tax by the taxpayer to be credited or
23 refunded without interest in accordance with the provisions of section
24 11-677 of this chapter.
25 (c) Notwithstanding any other provision of this subdivision to the
26 contrary, in the case of a taxpayer that has received, in a taxable year
27 beginning before January first, two thousand fifteen, the credit set
28 forth in subdivision fourteen of section 11-604 of this chapter for an
29 eligible employment relocation, a credit shall be allowed to the taxpay-
30 er under this subdivision for any tax year beginning on or after January
31 first, two thousand fifteen, in the same amount and to the same extent
32 that a credit, or the unused portion thereof, would have been allowed
33 under subdivision fourteen of section 11-604 of this chapter, as in
34 effect on December thirty-first, two thousand fourteen, if such subdivi-
35 sion continued to apply to the taxpayer for such taxable year.
36 15. Intentionally omitted.
37 16. Intentionally omitted.
38 17. (a) In addition to any other credit allowed by this section, a
39 taxpayer that has obtained the certifications required by chapter six-B
40 of title twenty-two of the code of the preceding municipality shall be
41 allowed a credit against the tax imposed by this subchapter. The amount
42 of the credit shall be the amount determined by multiplying five hundred
43 dollars or, in the case of a taxpayer that has obtained pursuant to
44 chapter six-B of such title twenty-two a certification of eligibility
45 dated on or after July first, nineteen hundred ninety-five, one thousand
46 dollars or, in the case of an eligible business that has obtained pursu-
47 ant to chapter six-B of such title twenty-two a certification of eligi-
48 bility dated on or after July first, two thousand, for a relocation to
49 eligible premises located within a revitalization area defined in subdi-
50 vision (n) of section 22-621 of the code of the preceding municipality,
51 three thousand dollars, by the number of eligible aggregate employment
52 shares maintained by the taxpayer during the taxable year with respect
53 to particular premises to which the taxpayer has relocated; provided,
54 however, with respect to a relocation for which no application for a
55 certificate of eligibility is submitted prior to July first, two thou-
56 sand three, to eligible premises that are not within a revitalization
S. 8578 708
1 area, if the date of such relocation as determined pursuant to subdivi-
2 sion (j) of section 22-621 of the code of the preceding municipality is
3 before July first, nineteen hundred ninety-five, the amount to be multi-
4 plied by the number of eligible aggregate employment shares shall be
5 five hundred dollars, and with respect to a relocation for which no
6 application for a certificate of eligibility is submitted prior to July
7 first, two thousand three, to eligible premises that are within a revi-
8 talization area, if the date of such relocation as determined pursuant
9 to subdivision (j) of such section is before July first, nineteen
10 hundred ninety-five, the amount to be multiplied by the number of eligi-
11 ble aggregate employment shares shall be five hundred dollars, and if
12 the date of such relocation as determined pursuant to subdivision (j) of
13 such section is on or after July first, nineteen hundred ninety-five,
14 and before July first, two thousand, one thousand dollars; provided,
15 however, that no credit shall be allowed for the relocation of any
16 retail activity or hotel services; provided, further, that no credit
17 shall be allowed under this subdivision to any taxpayer that has elected
18 pursuant to subdivision (d) of section 22-622 of the code of the preced-
19 ing municipality to take such credit against a gross receipts tax
20 imposed by chapter eleven of this title; and provided that in the case
21 of an eligible business that has obtained pursuant to chapter six-B of
22 such title twenty-two certifications of eligibility for more than one
23 relocation, the portion of the total amount of eligible aggregate
24 employment shares to be multiplied by the dollar amount specified in
25 this subdivision for each such certification of a relocation shall be
26 the number of total attributed eligible aggregate employment shares
27 determined with respect to such relocation pursuant to subdivision (o)
28 of section 22-621 of the code of the preceding municipality. For
29 purposes of this subdivision, the terms "eligible aggregate employment
30 shares," "relocate," "retail activity" and "hotel services" shall have
31 the meanings ascribed by section 22-621 of the code of the preceding
32 municipality.
33 (b) The credit allowed under this subdivision with respect to eligible
34 aggregate employment shares maintained with respect to particular prem-
35 ises to which the taxpayer has relocated shall be allowed for the first
36 taxable year during which such eligible aggregate employment shares are
37 maintained with respect to such premises and for any of the twelve
38 succeeding taxable years during which eligible aggregate employment
39 shares are maintained with respect to such premises; provided that the
40 credit allowed for the twelfth succeeding taxable year shall be calcu-
41 lated by multiplying the number of eligible aggregate employment shares
42 maintained with respect to such premises in the twelfth succeeding taxa-
43 ble year by the lesser of one and a fraction the numerator of which is
44 such number of days in the taxable year of relocation less the number of
45 days the eligible business maintained employment shares in the eligible
46 premises in the taxable year of relocation and the denominator of which
47 is the number of days in such twelfth succeeding taxable year during
48 which such eligible aggregate employment shares are maintained with
49 respect to such premises. Except as provided in paragraph (d) of this
50 subdivision, if the amount of the credit allowable under this subdivi-
51 sion for any taxable year exceeds the tax imposed for such year, the
52 excess may be carried over, in order, to the five immediately succeeding
53 taxable years and, to the extent not previously deductible, may be
54 deducted from the taxpayer's tax for such years.
S. 8578 709
1 (c) The credit allowable under this subdivision shall be deducted
2 after the credit allowed by subdivision eighteen of this section, but
3 prior to the deduction of any other credit allowed by this section.
4 (d) In the case of a taxpayer that has obtained a certification of
5 eligibility pursuant to chapter six-B of title twenty-two of the code of
6 the preceding municipality dated on or after July first, two thousand
7 for a relocation to eligible premises located within the revitalization
8 area defined in subdivision (n) of section 22-621 of the code of the
9 preceding municipality, the credits allowed under this subdivision, or
10 in the case of a taxpayer that has relocated more than once, the portion
11 of such credits attributed to such certification of eligibility pursuant
12 to paragraph (a) of this subdivision, against the tax imposed by this
13 chapter for the taxable year of such relocation and for the four taxable
14 years immediately succeeding the taxable year of such relocation, shall
15 be deemed to be overpayments of tax by the taxpayer to be credited or
16 refunded, without interest, in accordance with the provisions of section
17 11-677 of this chapter. For such taxable years, such credits or portions
18 thereof may not be carried over to any succeeding taxable year;
19 provided, however, that this paragraph shall not apply to any relocation
20 for which an application for a certification of eligibility was not
21 submitted prior to July first, two thousand three, unless the date of
22 such relocation is on or after July first, two thousand.
23 (e) Notwithstanding any other provision of this subdivision to the
24 contrary, in the case of a taxpayer that has obtained, pursuant to chap-
25 ter six-B of title twenty-two of the code of the preceding municipality,
26 a certification of eligibility and has received, in a taxable year
27 beginning before January first, two thousand fifteen, the credit set
28 forth in subdivision seventeen of section 11-604 of this chapter or
29 section 11-643.7 of this chapter for the relocation of an eligible busi-
30 ness, a credit shall be allowed under this subdivision to the taxpayer
31 for any taxable year beginning on or after January first, two thousand
32 fifteen in the same amount and to the same extent that a credit would
33 have been allowed under subdivision seventeen of section 11-604 of this
34 chapter or section 11-643.7 of this chapter, as in effect on December
35 thirty-first, two thousand fourteen, if such subdivision continued to
36 apply to the taxpayer for such taxable year.
37 17-a. Intentionally omitted.
38 17-b. (a) In addition to any other credit allowed by this section, an
39 eligible business that first enters into a binding contract on or after
40 July first, two thousand five to purchase or lease eligible premises to
41 which it relocates shall be allowed a one-time credit against the tax
42 imposed by this subchapter to be credited or refunded in the manner
43 hereinafter provided in this subdivision. The amount of such credit
44 shall be one thousand dollars per full-time employee; provided, however,
45 that the amount of such credit shall not exceed the lesser of actual
46 relocation costs or one hundred thousand dollars.
47 (b) When used in this subdivision, the following terms shall have the
48 following meanings:
49 (1) "Eligible business" means any business subject to tax under this
50 subchapter that (i) has been conducting substantial business operations
51 and engaging primarily in industrial and manufacturing activities at one
52 or more locations within the city of New York or outside the state of
53 New York continuously during the twenty-four consecutive full months
54 immediately preceding relocation, (ii) has leased the premises from
55 which it relocates continuously during the twenty-four consecutive full
56 months immediately preceding relocation, (iii) first enters into a bind-
S. 8578 710
1 ing contract on or after July first, two thousand five to purchase or
2 lease eligible premises to which such business will relocate, and (iv)
3 will be engaged primarily in industrial and manufacturing activities at
4 such eligible premises.
5 (2) "Eligible premises" means premises located entirely within an
6 industrial business zone. For any eligible business, an industrial busi-
7 ness zone tax credit shall not be granted with respect to more than one
8 eligible premises.
9 (3) "Full-time employee" means (i) one person gainfully employed in an
10 eligible premises by an eligible business where the number of hours
11 required to be worked by such person is not less than thirty-five hours
12 per week; or (ii) two persons gainfully employed in an eligible premises
13 by an eligible business where the number of hours required to be worked
14 by each such person is more than fifteen hours per week but less than
15 thirty-five hours per week.
16 (4) "Industrial business zone" means an area within the city of New
17 York established pursuant to section 22-626 of the code of the preceding
18 municipality.
19 (5) "Industrial business zone tax credit" means a credit, as provided
20 for in this subdivision, against a tax imposed under this subchapter.
21 (6) "Industrial and manufacturing activities" means activities involv-
22 ing the assembly of goods to create a different article, or the process-
23 ing, fabrication, or packaging of goods. Industrial and manufacturing
24 activities shall not include waste management or utility services.
25 (7) "Relocation" means the physical relocation of furniture, fixtures,
26 equipment, machinery and supplies directly to an eligible premises, from
27 one or more locations of an eligible business, including at least one
28 location at which such business conducts substantial business operations
29 and engages primarily in industrial and manufacturing activities. For
30 purposes of this subdivision, the date of relocation shall be (i) the
31 date of the completion of the relocation to the eligible premises or
32 (ii) ninety days from the commencement of the relocation to the eligible
33 premises, whichever is earlier.
34 (8) "Relocation costs" means costs incurred in the relocation of such
35 furniture, fixtures, equipment, machinery and supplies, including, but
36 not limited to, the cost of dismantling and reassembling equipment and
37 the cost of floor preparation necessary for the reassembly of the equip-
38 ment. Relocation costs shall include only such costs that are incurred
39 during the ninety-day period immediately following the commencement of
40 the relocation to an eligible premises. Relocation costs shall not
41 include costs for structural or capital improvements or items purchased
42 in connection with the relocation.
43 (c) The credit allowed under this subdivision for any taxable year
44 shall be deemed to be an overpayment of tax by the taxpayer to be cred-
45 ited or refunded without interest, in accordance with the provisions of
46 section 11-677 of this chapter.
47 (d) The number of full-time employees for the purposes of calculating
48 an industrial business tax credit shall be the average number of full-
49 time employees, calculated on a weekly basis, employed in the eligible
50 premises by the eligible business in the fifty-two week period imme-
51 diately following the earlier of (1) the date of the completion of the
52 relocation to eligible premises or (2) ninety days from the commencement
53 of the relocation to the eligible premises.
54 (e) The credit allowed under this subdivision must be taken by the
55 taxpayer in the taxable year in which such twelve month period selected
56 by the taxpayer ends.
S. 8578 711
1 (f) For the purposes of calculating entire net income in the taxable
2 year that an industrial business tax credit is allowed, a taxpayer must
3 add back the amount of the credit allowed under this subdivision, to the
4 extent of any relocation costs deducted in the current taxable year or a
5 prior taxable year in calculating federal taxable income.
6 (g) The credit allowed under this subdivision shall not be granted for
7 an eligible business for more than one relocation, provided, however, an
8 industrial business tax credit shall not be granted if the eligible
9 business receives benefits pursuant to chapter six-B or six-C of title
10 twenty-two of the code of the preceding municipality, through a grant
11 program administered by the business relocation assistance corporation,
12 or through the New York city printers relocation fund grant.
13 (h) The commissioner of finance is authorized to promulgate rules and
14 regulations and to prescribe forms necessary to effectuate the purposes
15 of this subdivision.
16 18. (a) If a corporation is a partner in an unincorporated business
17 taxable under chapter five of this title, and is required to include in
18 entire net income its distributive share of income, gain, loss and
19 deductions of, or guaranteed payments from, such unincorporated busi-
20 ness, such corporation shall be allowed a credit against the tax imposed
21 by this subchapter equal to the lesser of the amounts determined in
22 subparagraphs one and two of this paragraph:
23 (1) The amount determined in this subparagraph is the product of (i)
24 the sum of (A) the tax imposed by chapter five of this title on the
25 unincorporated business for its taxable year ending within or with the
26 taxable year of the corporation and paid by the unincorporated business
27 and (B) the amount of any credit or credits taken by the unincorporated
28 business under section 11-503 of this title, except the credit allowed
29 by subdivision (b) of section 11-503 of this title, for its taxable year
30 ending within or with the taxable year of the corporation, to the extent
31 that such credits do not reduce such unincorporated business's tax below
32 zero, and (ii) a fraction, the numerator of which is the net total of
33 the corporation's distributive share of income, gain, loss and
34 deductions of, and guaranteed payments from, the unincorporated business
35 for such taxable year, and the denominator of which is the sum, for such
36 taxable year, of the net total distributive shares of income, gain, loss
37 and deductions of, and guaranteed payments to, all partners in the unin-
38 corporated business for whom or which such net total, as separately
39 determined for each partner, is greater than zero.
40 (2) The amount determined in this subparagraph is the product of (i)
41 the excess of (A) the tax computed under clause (i) of subparagraph one
42 of paragraph (e) of subdivision one of this section, without allowance
43 of any credits allowed by this section, over (B) the tax so computed,
44 determined as if the corporation had no such distributive share or guar-
45 anteed payments with respect to the unincorporated business, and (ii) a
46 fraction, the numerator of which is four and the denominator of which is
47 eight and eighty-five one-hundredths, except that in the case of a
48 financial corporation as defined in clause (i) of subparagraph one of
49 paragraph (e) of subdivision one of this section, such denominator is
50 nine, and in the case of a taxpayer that is subject to paragraph (j) or
51 (k) of subdivision one of this section, such denominator shall be the
52 rate of tax as determined by such paragraph (j) or (k) for the taxable
53 year; provided that the amounts computed in subclauses (A) and (B) of
54 clause (i) of this subparagraph shall be computed with the following
55 modifications:
S. 8578 712
1 (A) such amounts shall be computed without taking into account any
2 carryforward or carryback by the partner of a net operating loss or a
3 prior net operation loss conversion subtraction;
4 (B) if, prior to taking into account any distributive share or guaran-
5 teed payments from any unincorporated business or any net operating loss
6 carryforward or carryback, the entire net income of the partner is less
7 than zero, such entire net income shall be treated as zero; and
8 (C) if such partner's net total distributive share of income, gain,
9 loss and deductions of, and guaranteed payments from, any unincorporated
10 business is less than zero, such net total shall be treated as zero. The
11 amount determined in this subparagraph shall not be less than zero.
12 (b) (1) Notwithstanding anything to the contrary in paragraph (a) of
13 this subdivision, in the case of a corporation that, before the applica-
14 tion of this subdivision or any other credit allowed by this section, is
15 liable for the tax on business income under clause (i) of subparagraph
16 one of paragraph (e) of subdivision one of this section, the credit or
17 the sum of the credits that may be taken by such corporation for a taxa-
18 ble year under this subdivision with respect to an unincorporated busi-
19 ness or unincorporated businesses in which it is a partner shall not
20 exceed the tax so computed, without allowance of any credits allowed by
21 this section, multiplied by a fraction the numerator of which is four
22 and the denominator of which is eight and eighty-five one-hundredths,
23 except that in the case of a financial corporation as defined in clause
24 (i) of subparagraph one of paragraph (e) of subdivision one of this
25 section, such denominator is nine, and in the case of a taxpayer that is
26 subject to paragraph (j) or (k) of subdivision one of this section, such
27 denominator shall be the rate of tax as determined by such paragraph (j)
28 or (k) for the taxable year. If the credit allowed under this subdivi-
29 sion or the sum of such credits exceeds the product of such tax and such
30 fraction, the amount of the excess may be carried forward, in order, to
31 each of the seven immediately succeeding taxable years and, to the
32 extent not previously taken, shall be allowed as a credit in each of
33 such years. In applying such provisions, the credit determined for the
34 taxable year under paragraph (a) of this subdivision shall be taken
35 before taking any credit carryforward pursuant to this paragraph and the
36 credit carryforward attributable to the earliest taxable year shall be
37 taken before taking a credit carryforward attributable to a subsequent
38 taxable year.
39 (2) Intentionally omitted.
40 (2-a) Notwithstanding any other provision of this subdivision to the
41 contrary, in the case of a taxpayer that has received, in a taxable year
42 beginning before January first, two thousand fifteen, the credit set
43 forth in subdivision eighteen of section 11-604 of this chapter or in
44 section 11-643.8 of this chapter for a tax paid under chapter five of
45 this title in a taxable year beginning before January first, two thou-
46 sand fifteen, the taxpayer may carry forward the unused portion of such
47 credit under this subdivision to any taxable year beginning on or after
48 January first, two thousand fifteen in the same amount and to the same
49 extent, including the same limitations, that the credit, or the unused
50 portion thereof, would have been allowed to be carried forward under
51 subparagraph one of paragraph (b) of subdivision eighteen of section
52 11-604 of this chapter or paragraph one of subdivision (b) of section
53 11-643.8 of this chapter, as in effect on December thirty-first, two
54 thousand fourteen, if such subdivision continued to apply to the taxpay-
55 er for such taxable year.
S. 8578 713
1 (3) No credit allowed under this subdivision may be taken in a taxable
2 year by a taxpayer that, in the absence of such credit, would be liable
3 for the tax computed on the basis of business capital under clause (ii)
4 of subparagraph one of paragraph (e) of subdivision one of this section
5 or the fixed-dollar minimum tax under clause (iv) of subparagraph one of
6 paragraph (e) of subdivision one of this section.
7 (c) For corporations that file a report on a combined basis pursuant
8 to section 11-654.3 of this subchapter, the credit allowed by this
9 subdivision shall be computed as if the combined group were the partner
10 in each unincorporated business from which any of the members of such
11 group had a distributive share or guaranteed payments, provided, howev-
12 er, if more than one member of the combined group is a partner in the
13 same unincorporated business, for purposes of the calculation required
14 in subparagraph one of paragraph (a) of this subdivision, the numerator
15 of the fraction described in clause (ii) of such subparagraph one shall
16 be the sum of the net total distributive shares of income, gain, loss
17 and deductions of, and guaranteed payments from, the unincorporated
18 business of all of the partners of the unincorporated business within
19 the combined group for which such net total, as separately determined
20 for each partner, is greater than zero, and the denominator of such
21 fraction shall be the sum of the net total distributive shares of
22 income, gain, loss and deductions of, and guaranteed payments from, the
23 unincorporated business of all partners in the unincorporated business
24 for whom or which such net total, as separately determined for each
25 partner, is greater than zero.
26 (d) Notwithstanding any other provision of this subchapter, the credit
27 allowable under this subdivision shall be taken prior to the taking of
28 any other credit allowed by this section. Notwithstanding any other
29 provision of this subchapter, the application of this subdivision shall
30 not change the basis on which the taxpayer's tax is computed under para-
31 graph (e) of subdivision one of this section.
32 19. Lower Manhattan relocation and employment assistance credit. (a)
33 In addition to any other credit allowed by this section, a taxpayer that
34 has obtained the certifications required by chapter six-C of title twen-
35 ty-two of the code of the preceding municipality shall be allowed a
36 credit against the tax imposed by this subchapter. The amount of the
37 credit shall be the amount determined by multiplying three thousand
38 dollars by the number of eligible aggregate employment shares maintained
39 by the taxpayer during the taxable year with respect to eligible prem-
40 ises to which the taxpayer has relocated; provided, however, that no
41 credit shall be allowed for the relocation of any retail activity or
42 hotel services; provided, further, that no credit shall be allowed under
43 this subdivision to any taxpayer that has elected pursuant to subdivi-
44 sion (d) of section 22-624 of the code of the preceding municipality to
45 take such credit against a gross receipts tax imposed under chapter
46 eleven of this title. For purposes of this subdivision, the terms
47 "eligible aggregate employment shares," "eligible premises," "relocate,"
48 "retail activity" and "hotel services" shall have the meanings ascribed
49 by section 22-623 of the code of the preceding municipality.
50 (b) The credit allowed under this subdivision with respect to eligible
51 aggregate employment shares maintained with respect to eligible premises
52 to which the taxpayer has relocated shall be allowed for the taxable
53 year of the relocation and for any of the twelve succeeding taxable
54 years during which eligible aggregate employment shares are maintained
55 with respect to eligible premises; provided that the credit allowed for
56 the twelfth succeeding taxable year shall be calculated by multiplying
S. 8578 714
1 the number of eligible aggregate employment shares maintained with
2 respect to eligible premises in the twelfth succeeding taxable year by
3 the lesser of one and a fraction the numerator of which is such number
4 of days in the taxable year of relocation less the number of days the
5 taxpayer maintained employment shares in eligible premises in the taxa-
6 ble year of relocation and the denominator of which is the number of
7 days in such twelfth taxable year during which such eligible aggregate
8 employment shares are maintained with respect to such premises.
9 (c) Except as provided in paragraph (d) of this subdivision, if the
10 amount of the credit allowable under this subdivision for any taxable
11 year exceeds the tax imposed for such year, the excess may be carried
12 over, in order, to the five immediately succeeding taxable years and, to
13 the extent not previously deductible, may be deducted from the taxpay-
14 er's tax for such years.
15 (d) The credits allowed under this subdivision, against the tax
16 imposed by this chapter for the taxable year of the relocation and for
17 the four taxable years immediately succeeding the taxable year of such
18 relocation, shall be deemed to be overpayments of tax by the taxpayer to
19 be credited or refunded, without interest, in accordance with the
20 provisions of section 11-677 of this chapter. For such taxable years,
21 such credits or portions thereof may not be carried over to any succeed-
22 ing taxable year.
23 (e) The credit allowable under this subdivision shall be deducted
24 after the credits allowed by subdivisions seventeen and eighteen of this
25 section, but prior to the deduction of any other credit allowed by this
26 section.
27 (f) Notwithstanding any other provision of this subdivision to the
28 contrary, in the case of a taxpayer that has obtained, pursuant to chap-
29 ter six-C of title twenty-two of the code of the preceding municipality,
30 a certification of eligibility and has received, in a taxable year
31 beginning before January first, two thousand fifteen, the credit set
32 forth in subdivision nineteen of section 11-604 of this chapter or
33 section 11-643.9 of this chapter for the relocation of an eligible busi-
34 ness, a credit shall be allowed under this subdivision to the taxpayer
35 for any taxable year beginning on or after January first, two thousand
36 fifteen in the same amount and to the same extent that a credit would
37 have been allowed under subdivision nineteen of section 11-604 of this
38 chapter or section 11-643.9 of this chapter, as in effect on December
39 thirty-first, two thousand fourteen, if such subdivision continued to
40 apply to the taxpayer for such taxable year.
41 20. Intentionally omitted.
42 21. Biotechnology credit. (a) (1) A taxpayer that is a qualified
43 emerging technology company, engages in biotechnologies, and meets the
44 eligibility requirements of this subdivision, shall be allowed a credit
45 against the tax imposed by this subchapter. The amount of credit shall
46 be equal to the sum of the amounts specified in subparagraphs three,
47 four and five of this paragraph, subject to the limitations in subpara-
48 graphs six and seven of this paragraph, paragraph (b) of this subdivi-
49 sion, and paragraph three of subdivision (d) of section twelve hundred
50 one-a of the tax law. For the purposes of this subdivision, "qualified
51 emerging technology company" shall mean a company located in the city:
52 (i) whose primary products or services are classified as emerging tech-
53 nologies and whose total annual product sales are ten million dollars or
54 less; or
55 (ii) a company that has research and development activities in the
56 city and whose ratio of research and development funds to net sales
S. 8578 715
1 equals or exceeds the average ratio for all surveyed companies classi-
2 fied as determined by the National Science Foundation in the most recent
3 published results from its Survey of Industry Research and Development,
4 or any comparable successor survey as determined by the department of
5 finance, and whose total annual product sales are ten million dollars or
6 less. For the purposes of this subdivision, the definition of research
7 and development funds shall be the same as that used by the National
8 Science Foundation in the aforementioned survey. For the purposes of
9 this subdivision, "biotechnologies" shall mean the technologies involv-
10 ing the scientific manipulation of living organisms, especially at the
11 molecular and/or the sub-molecular genetic level, to produce products
12 conducive to improving the lives and health of plants, animals, and
13 humans; and the associated scientific research, pharmacological, mechan-
14 ical, and computational applications and services connected with these
15 improvements. Activities included with such applications and services
16 shall include, but not be limited to, alternative mRNA splicing, DNA
17 sequence amplification, antigenetic switching bioaugmentation, bioen-
18 richment, bioremediation, chromosome walking, cytogenetic engineering,
19 DNA diagnosis, fingerprinting, and sequencing, electroporation, gene
20 translocation, genetic mapping, site-directed mutagenesis, bio-transduc-
21 tion, bio-mechanical and bio-electrical engineering, and bio-informat-
22 ics.
23 (2) An eligible taxpayer shall (i) have no more than one hundred full-
24 time employees, of which at least seventy-five percent are employed in
25 the city, (ii) have a ratio of research and development funds to net
26 sales, as referred to in section thirty-one hundred two-e of the public
27 authorities law, which equals or exceeds six percent during the calendar
28 year ending with or within the taxable year for which the credit is
29 claimed, and (iii) have gross revenues, along with the gross revenues of
30 its "affiliates" and "related members" not exceeding twenty million
31 dollars for the calendar year immediately preceding the calendar year
32 ending with or within the taxable year for which the credit is claimed.
33 For the purposes of this subdivision, "affiliates" shall mean those
34 corporations that are members of the same affiliated group, as defined
35 in section fifteen hundred four of the internal revenue code, as the
36 taxpayer. For the purposes of this subdivision, the term "related
37 members" shall mean a person, corporation, or other entity, including an
38 entity that is treated as a partnership or other pass-through vehicle
39 for purposes of federal taxation, whether such person, corporation or
40 entity is a taxpayer or not, where one such person, corporation or enti-
41 ty, or set of related persons, corporations or entities, directly or
42 indirectly owns or controls a controlling interest in another entity.
43 Such entity or entities may include all taxpayers under chapters five,
44 eleven and seventeen of this title, and this subchapter and subchapters
45 two and three of this chapter. A controlling interest shall mean, in the
46 case of a corporation, either thirty percent or more of the total
47 combined voting power of all classes of stock of such corporation, or
48 thirty percent or more of the capital, profits or beneficial interest in
49 such voting stock of such corporation; and in the case of a partnership,
50 association, trust or other entity, thirty percent or more of the capi-
51 tal, profits or beneficial interest in such partnership, association,
52 trust or other entity.
53 (3) An eligible taxpayer shall be allowed a credit for eighteen per
54 centum of the cost or other basis for federal income tax purposes of
55 research and development property that is acquired by the taxpayer by
56 purchase as defined in subsection (d) of section one hundred seventy-
S. 8578 716
1 nine of the internal revenue code and placed in service during the
2 calendar year that ends with or within the taxable year for which the
3 credit is claimed. Provided, however, for the purposes of this paragraph
4 only, an eligible taxpayer shall be allowed a credit for such percentage
5 of the (i) cost or other basis for federal income tax purposes for prop-
6 erty used in the testing or inspection of materials and products, (ii)
7 the costs or expenses associated with quality control of the research
8 and development, (iii) fees for use of sophisticated technology facili-
9 ties and processes, and (iv) fees for the production or eventual commer-
10 cial distribution of materials and products resulting from the activ-
11 ities of an eligible taxpayer as long as such activities fall under
12 activities relating to biotechnologies. The costs, expenses and other
13 amounts for which a credit is allowed and claimed under this paragraph
14 shall not be used in the calculation of any other credit allowed under
15 this subchapter. For the purposes of this subdivision, "research and
16 development property" shall mean property that is used for purposes of
17 research and development in the experimental or laboratory sense. Such
18 purposes shall not be deemed to include the ordinary testing or
19 inspection of materials or products for quality control, efficiency
20 surveys, management studies, consumer surveys, advertising, promotions,
21 or research in connection with literary, historical or similar projects.
22 (4) An eligible taxpayer shall be allowed a credit for nine per centum
23 of qualified research expenses paid or incurred by the taxpayer in the
24 calendar year that ends with or within the taxable year for which the
25 credit is claimed. For the purposes of this subdivision, "qualified
26 research expenses" shall mean expenses associated with in-house research
27 and processes, and costs associated with the dissemination of the
28 results of the products that directly result from such research and
29 development activities; provided, however, that such costs shall not
30 include advertising or promotion through media. In addition, costs asso-
31 ciated with the preparation of patent applications, patent application
32 filing fees, patent research fees, patent examinations fees, patent post
33 allowance fees, patent maintenance fees, and grant application expenses
34 and fees shall qualify as qualified research expenses. In no case shall
35 the credit allowed under this subparagraph apply to expenses for liti-
36 gation or the challenge of another entity's intellectual property
37 rights, or for contract expenses involving outside paid consultants.
38 (5) An eligible taxpayer shall be allowed a credit for qualified high-
39 technology training expenditures as described in this subparagraph paid
40 or incurred by the taxpayer during the calendar year that ends with or
41 within the taxable year for which the credit is claimed.
42 (i) The amount of credit shall be one hundred percent of the training
43 expenses described in clause (iii) of this subparagraph, subject to a
44 limitation of no more than four thousand dollars per employee per calen-
45 dar year for such training expenses.
46 (ii) Qualified high-technology training shall include a course or
47 courses taken and satisfactorily completed by an employee of the taxpay-
48 er at an accredited, degree granting post-secondary college or universi-
49 ty in the city that (A) directly relates to biotechnology activities,
50 and (B) is intended to upgrade, retrain or improve the productivity or
51 theoretical awareness of the employee. Such course or courses may
52 include, but are not limited to, instruction or research relating to
53 techniques, meta, macro, or micro-theoretical or practical knowledge
54 bases or frontiers, or ethical concerns related to such activities. Such
55 course or courses shall not include classes in the disciplines of
56 management, accounting or the law or any class designed to fulfill the
S. 8578 717
1 discipline specific requirements of a degree program at the associate,
2 baccalaureate, graduate or professional level of these disciplines.
3 Satisfactory completion of a course or courses shall mean the earning
4 and granting of credit or equivalent unit, with the attainment of a
5 grade of "B" or higher in a graduate level course or courses, a grade of
6 "C" or higher in an undergraduate level course or courses, or a similar
7 measure of competency for a course that is not measured according to a
8 standard grade formula.
9 (iii) Qualified high-technology training expenditures shall include
10 expenses for tuition and mandatory fees, software required by the insti-
11 tution, fees for textbooks or other literature required by the institu-
12 tion offering the course or courses, minus applicable scholarships and
13 tuition or fee waivers not granted by the taxpayer or any affiliates of
14 the taxpayer, that are paid or reimbursed by the taxpayer. Qualified
15 high-technology expenditures do not include room and board, computer
16 hardware or software not specifically assigned for such course or cours-
17 es, late-charges, fines or membership dues and similar expenses. Such
18 qualified expenditures shall not be eligible for the credit provided by
19 this section unless the employee for whom the expenditures are disbursed
20 is continuously employed by the taxpayer in a full-time, full-year posi-
21 tion primarily located at a qualified site during the period of such
22 coursework and lasting through at least one hundred eighty days after
23 the satisfactory completion of the qualifying course-work. Qualified
24 high-technology training expenditures shall not include expenses for
25 in-house or shared training outside of a city higher education institu-
26 tion or the use of consultants outside of credit granting courses,
27 whether such consultants function inside of such higher education insti-
28 tution or not.
29 (iv) If a taxpayer relocates from an academic business incubator
30 facility partnered with an accredited post-secondary education institu-
31 tion located within the city, which provides space and business support
32 services to taxpayers, to another site, the credit provided in this
33 subdivision shall be allowed for all expenditures referenced in clause
34 (iii) of this subparagraph paid or incurred in the two preceding calen-
35 dar years that the taxpayer was located in such an incubator facility
36 for employees of the taxpayer who also relocate from said incubator
37 facility to such city site and are employed and primarily located by the
38 taxpayer in the city. Such expenditures in the two preceding years shall
39 be added to the amounts otherwise qualifying for the credit provided by
40 this subdivision that were paid or incurred in the calendar year that
41 the taxpayer relocates from such a facility. Such expenditures shall
42 include expenses paid for an eligible employee who is a full-time, full-
43 year employee of said taxpayer during the calendar year that the taxpay-
44 er relocated from an incubator facility notwithstanding (A) that such
45 employee was employed full or part-time as an officer, staff-person or
46 paid intern of the taxpayer when such taxpayer was located at such incu-
47 bator facility or (B) that such employee was not continuously employed
48 when such taxpayer was located at the incubator facility during the one
49 hundred eighty day period referred to in clause (iii) of this subpara-
50 graph, provided such employee received wages or equivalent income for at
51 least seven hundred fifty hours during any twenty-four month period when
52 the taxpayer was located at the incubator facility. Such expenditures
53 shall include payments made to such employee after the taxpayer has
54 relocated from the incubator facility for qualified expenditures if such
55 payments are made to reimburse an employee for expenditures paid by the
56 employee during such two preceding years. The credit provided under
S. 8578 718
1 this paragraph shall be allowed in any taxable year that the taxpayer
2 qualifies as an eligible taxpayer.
3 (v) For purposes of this subdivision the term "academic year" shall
4 mean the annual period of sessions of a post-secondary college or
5 university.
6 (vi) For the purposes of this subdivision the term "academic incubator
7 facility" shall mean a facility providing low-cost space, technical
8 assistance, support services and educational opportunities, including
9 but not limited to central services provided by the manager of the
10 facility to the tenants of the facility, to an entity located in the
11 city. Such entity's primary activity must be in biotechnologies, and
12 such entity must be in the formative stage of development. The academic
13 incubator facility and the entity must act in partnership with an
14 accredited post-secondary college or university located in the city. An
15 academic incubator facility's mission shall be to promote job creation,
16 entrepreneurship, technology transfer, and provide support services to
17 incubator tenants, including, but not limited to, business planning,
18 management assistance, financial-packaging, linkages to financing
19 services, and coordinating with other sources of assistance.
20 (6) An eligible taxpayer may claim credits under this subdivision for
21 three consecutive years. In no case shall the credit allowed by this
22 subdivision to a taxpayer exceed two hundred fifty thousand dollars per
23 calendar year for eligible expenditures made during such calendar year.
24 (7) The credit allowed under this subdivision for any taxable year
25 shall not reduce the tax due for such year to less than the amount
26 prescribed in clause (iv) of subparagraph one of paragraph (e) of subdi-
27 vision one of this section. Provided, however, if the amount of credit
28 allowed under this subdivision for any taxable year reduces the tax to
29 such amount, any amount of credit not deductible in such taxable year
30 shall be treated as an overpayment of tax to be credited or refunded in
31 accordance with the provisions of section 11-677 of this chapter;
32 provided, however, that notwithstanding the provisions of section 11-679
33 of this chapter, no interest shall be paid thereon.
34 (8) The credit allowed under this subdivision shall only be allowed
35 for taxable years beginning before January first, two thousand nineteen.
36 (b) (1) The percentage of the credit allowed to a taxpayer under this
37 subdivision in any calendar year shall be:
38 (i) If the average number of individuals employed full time by a
39 taxpayer in the city during the calendar year that ends with or within
40 the taxable year for which the credit is claimed is at least one hundred
41 five percent of the taxpayer's base year employment, one hundred
42 percent, except that in no case shall the credit allowed under this
43 clause exceed two hundred fifty thousand dollars per calendar year.
44 Provided, however, the increase in base year employment shall not apply
45 to a taxpayer allowed a credit under this subdivision that was, (A)
46 located outside of the city, (B) not doing business, or (C) did not have
47 any employees, in the year preceding the first year that the credit is
48 claimed. Any such taxpayer shall be eligible for one hundred percent of
49 the credit for the first calendar year that ends with or within the
50 taxable year for which the credit is claimed, provided that such taxpay-
51 er locates in the city, begins doing business in the city or hires
52 employees in the city during such calendar year and is otherwise eligi-
53 ble for the credit pursuant to the provisions of this subdivision.
54 (ii) If the average number of individuals employed full time by a
55 taxpayer in the city during the calendar year that ends with or within
56 the taxable year for which the credit is claimed is less than one
S. 8578 719
1 hundred five percent of the taxpayer's base year employment, fifty
2 percent, except that in no case shall the credit allowed under this
3 clause exceed one hundred twenty-five thousand dollars per calendar
4 year. In the case of an entity located in the city receiving space and
5 business support services by an academic incubator facility, if the
6 average number of individuals employed full time by such entity in the
7 city during the calendar year in which the credit allowed under this
8 subdivision is claimed is less than one hundred five percent of the
9 taxpayer's base year employment, the credit shall be zero.
10 (2) For the purposes of this subdivision, "base year employment" means
11 the average number of individuals employed full-time by the taxpayer in
12 the city in the year preceding the first calendar year that ends with or
13 within the taxable year for which the credit is claimed.
14 (3) For the purposes of this subdivision, average number of individ-
15 uals employed full-time shall be computed by adding the number of such
16 individuals employed by the taxpayer at the end of each quarter during
17 each calendar year or other applicable period and dividing the sum so
18 obtained by the number of such quarters occurring within such calendar
19 year or other applicable period.
20 (4) Notwithstanding anything contained in this section to the contra-
21 ry, the credit provided by this subdivision shall be allowed against the
22 taxes authorized by this chapter for the taxable year after reduction by
23 all other credits permitted by this chapter.
24 (c) Notwithstanding any other provision of this subdivision to the
25 contrary, in the case of a taxpayer that has received, in a taxable year
26 beginning before January first, two thousand fifteen, the credit set
27 forth in subdivision twenty-one of section 11-604 of this chapter for an
28 eligible acquisition of property and/or expense paid or incurred, a
29 credit shall be allowed to the taxpayer under this subdivision for any
30 tax year beginning on or after January first, two thousand fifteen in
31 the same amount and to the same extent that a credit would have been
32 allowed under subdivision twenty-one of section 11-604 of this chapter,
33 as in effect on December thirty-first, two thousand fourteen, if such
34 subdivision continued to apply to the taxpayer for such taxable year.
35 22. Beer production credit. (a) A taxpayer subject to tax under this
36 subchapter, that is registered as a distributor under article eighteen
37 of the tax law, and that produces sixty million or fewer gallons of beer
38 in this state in the taxable year, shall be allowed a credit against the
39 tax imposed by this subchapter in the amount specified in paragraph (b)
40 of this subdivision. Provided, however, that no credit shall be allowed
41 for any beer produced in excess of fifteen million five hundred thousand
42 gallons in the taxable year. Notwithstanding anything in this title to
43 the contrary, if a partnership is allowed a credit under subdivision (p)
44 of section 11-503 of this title, a taxpayer that is a partner in such
45 partnership shall not be allowed a credit under this subdivision for any
46 taxable year that includes the last day of the taxable year for which
47 the partnership is allowed such credit.
48 (b) The amount of the credit per taxpayer per taxable year for each
49 gallon of beer produced in the city of New York on or after January
50 first, two thousand seventeen shall be determined as follows:
51 (1) for the first five hundred thousand gallons of beer produced in
52 the city of New York in the taxable year, the credit shall equal twelve
53 cents per gallon; and
54 (2) for each gallon of beer produced in the city of New York in the
55 taxable year in excess of five hundred thousand gallons, the credit
56 shall equal three and eighty-six one-hundredths cents per gallon. In no
S. 8578 720
1 event shall the credit allowed under this subdivision for any taxable
2 year reduce the tax due for such year to less than the amount prescribed
3 in subparagraph one of paragraph (e) of subdivision one of this section.
4 However, if the amount of credit allowed under this subdivision for any
5 taxable year reduces the tax to such amount, any amount of credit thus
6 not deductible in such taxable year shall be treated as an overpayment
7 of tax to be credited or refunded in accordance with the provisions of
8 section 11-677 of this chapter; provided, however, that notwithstanding
9 the provisions of section 11-679 of this chapter, no interest shall be
10 paid thereon.
11 23. Credit for the provision of child care. In addition to any other
12 credit allowed under this section, a taxpayer whose application for a
13 credit authorized by section 11-144 of this title has been approved by
14 the department of finance shall be allowed a credit against the tax
15 imposed by this chapter. The amount of the credit shall be determined as
16 provided in such section. To the extent the amount of the credit allowed
17 by this subdivision exceeds the amount of tax due pursuant to this
18 subchapter, as calculated without such credit, such excess amount shall
19 be treated as an overpayment of tax to be credited or refunded in
20 accordance with the provisions of section 11-677 of this chapter,
21 provided, however, that notwithstanding the requirements of section
22 11-679 of this chapter to the contrary, no interest shall be paid there-
23 on.
24 § 11-654.1 Net operating loss. 1. In computing the business income
25 subject to tax, taxpayers shall be allowed both a prior net operating
26 loss conversion subtraction under subdivision two of this section and a
27 net operating loss deduction under subdivision three of this section.
28 The prior net operating loss conversion subtraction computed under
29 subdivision two of this section shall be applied against business income
30 before the net operating loss deduction computed under subdivision three
31 of this section.
32 2. Prior net operating loss conversion subtraction. (a) Definitions.
33 (1) "Base year" means the last taxable year beginning on or after Janu-
34 ary first, two thousand fourteen and before January first, two thousand
35 fifteen.
36 (2) "Unabsorbed net operating loss" means the unabsorbed portion of
37 net operating loss as calculated under paragraph (f) of subdivision
38 eight of section 11-602 of this chapter or subdivision (k-1) of section
39 11-641 of this chapter, as such sections were in effect on December
40 thirty-first, two thousand fourteen, that was not deductible in previous
41 taxable years and was eligible for carryover on the last day of the base
42 year subject to the limitations for deduction under such sections,
43 including any net operating loss sustained by the taxpayer during the
44 base year.
45 (3) "Base year BAP" means the taxpayer's business allocation percent-
46 age as calculated under paragraph (a) of subdivision three of section
47 11-604 of this chapter for the base year, or the taxpayer's allocation
48 percentage as calculated under section 11-642 of this chapter for
49 purposes of calculating entire net income for the base year, as such
50 sections were in effect on December thirty-first, two thousand fourteen.
51 (4) "Base year tax rate" means the taxpayer's tax rate for the base
52 year as applied to entire net income and calculated under subdivision
53 one of section 11-604 of this chapter or subdivision (a) of section
54 11-643.5 of this chapter, as such provisions were in effect on December
55 thirty-first, two thousand fourteen.
S. 8578 721
1 (b) The prior net operating loss conversion subtraction shall be
2 calculated as follows:
3 (1) The taxpayer shall first calculate the tax value of its unabsorbed
4 net operating loss for the base year. The value is equal to the product
5 of (i) the amount of the taxpayer's unabsorbed net operating loss, (ii)
6 the taxpayer's base year BAP, and (iii) the taxpayer's base year tax
7 rate.
8 (2) The product determined under subparagraph one of this paragraph
9 shall then be divided by eight and eighty-five one-hundredths per centum
10 or, in the case of a financial corporation, as defined in clause (i) of
11 subparagraph one of paragraph (e) of subdivision one of section 11-654
12 of this subchapter, the product determined under subparagraph one of
13 this paragraph shall then be divided by nine per centum. This result
14 shall equal the taxpayer's prior net operating loss conversion
15 subtraction pool.
16 (3) The taxpayer's prior net operating loss conversion subtraction for
17 the taxable year shall equal one-tenth of its prior net operating loss
18 conversion subtraction pool, plus any amount of unused prior net operat-
19 ing loss conversion subtraction from preceding taxable years.
20 (4) In lieu of the prior net operating loss conversion subtraction
21 described in subparagraph three of this paragraph, if the taxpayer so
22 elects, the taxpayer's prior net operating loss conversion subtraction
23 for its taxable years beginning on or after January first, two thousand
24 fifteen and before January first, two thousand seventeen shall equal, in
25 each year, not more than one-half of its prior net operating loss
26 conversion subtraction pool until the pool is exhausted. If the pool is
27 not exhausted at the end of such time period, the remainder of the pool
28 shall be forfeited. The taxpayer shall make such election, which shall
29 be revocable, on its first return for the tax year beginning on or after
30 January first, two thousand fifteen and before January first, two thou-
31 sand sixteen by the due date for such return, determined with regard to
32 extensions.
33 (c) (1) Where a taxpayer was properly included or required to be
34 included in a combined report for the base year pursuant to section
35 11-605 of this chapter or a combined return for the base year pursuant
36 to section 11-646 of this chapter, as such sections were in effect on
37 December thirty-first, two thousand fourteen, and the members of the
38 combined group for the base year are the same as the members of the
39 combined group for the taxable year immediately succeeding the base
40 year, the combined group shall calculate its prior net operating loss
41 conversion subtraction pool using the combined group's total unabsorbed
42 net operating loss, base year BAP, and base year tax rate.
43 (2) If a combined group includes additional members in the taxable
44 year immediately succeeding the base year that were not included in the
45 combined group during the base year, each base year combined group and
46 each taxpayer that filed separately for the base year but is included in
47 the combined group in the taxable year succeeding the base year shall
48 calculate its prior net operating loss conversion subtraction pool, and
49 the sum of the pools shall be the combined prior net operating loss
50 conversion subtraction pool of the combined group.
51 (3) If a taxpayer was properly included in a combined report for the
52 base year and files a separate report for a subsequent taxable year,
53 then the amount of remaining prior net operating loss conversion
54 subtraction allowed to the taxpayer filing such separate report shall be
55 proportionate to the amount that such taxpayer contributed to the prior
56 net operating loss conversion subtraction pool on a combined basis, and
S. 8578 722
1 the remaining prior net operating loss conversion subtraction allowed to
2 the remaining members of the combined group shall be reduced according-
3 ly.
4 (4) If a taxpayer filed a separate report for the base year and is
5 properly included in a combined report for a subsequent taxable year,
6 then the prior net operating loss conversion subtraction pool of the
7 combined group shall be increased by the amount of the remaining prior
8 net operating loss conversion subtraction allowed to the taxpayer at the
9 time the taxpayer is properly included in the combined group.
10 (d) The prior net operating loss conversion subtraction may be used to
11 reduce the taxpayer's tax on allocated business income to the higher of
12 the tax on business capital under clause (ii) of subparagraph one of
13 paragraph (e) of subdivision one of section 11-654 of this subchapter or
14 the fixed dollar minimum under clause (iv) of subparagraph one of para-
15 graph (e) of subdivision one of section 11-654 of this subchapter.
16 Unless the taxpayer has made the election provided for in subparagraph
17 four of paragraph (b) of this subdivision, any amount of unused prior
18 net operating loss conversion subtraction shall be carried forward to a
19 subsequent tax year or subsequent tax years until the prior net operat-
20 ing loss conversion subtraction pool is exhausted, but for no longer
21 than twenty taxable years or the taxable year beginning on or after
22 January first, two thousand thirty-five but before January first, two
23 thousand thirty-six, whichever comes first. Such amount carried forward
24 shall not be subject to the one-tenth limitation for the subsequent tax
25 year or years under subparagraph three of paragraph (b) of this subdivi-
26 sion. However, if the taxpayer elects to compute its prior net operat-
27 ing loss conversion subtraction pursuant to subparagraph four of para-
28 graph (b) of this subdivision, the taxpayer shall not carry forward any
29 unused amount of such prior net operating loss conversion subtraction to
30 any tax year beginning on or after January first, two thousand seven-
31 teen.
32 3. In computing business income, a net operating loss deduction shall
33 be allowed. A net operating loss deduction shall be the amount of net
34 operating loss or losses from one or more taxable years that are carried
35 forward or carried back to a particular taxable year. A net operating
36 loss shall be the amount of a business loss incurred in a particular tax
37 year multiplied by the business allocation percentage for that year as
38 determined under subdivision three of section 11-654 of this subchapter.
39 The maximum net operating loss deduction that is allowed in a taxable
40 year shall be the amount that reduces the taxpayer's tax on allocated
41 business income to the higher of the tax on business capital under
42 clause (ii) of subparagraph one of paragraph (e) of subdivision one of
43 section 11-654 of this subchapter or the fixed dollar minimum amount
44 under clause (iv) of subparagraph one of paragraph (e) of subdivision
45 one of section 11-654 of this subchapter. Such net operating loss
46 deduction and net operating loss shall be determined in accordance with
47 the following:
48 (a) Such net operating loss deduction shall not be limited to the
49 amount allowed under section one hundred seventy-two of the internal
50 revenue code or the amount that would have been allowed if the taxpayer
51 did not have an election under subchapter S of chapter one of the inter-
52 nal revenue code in effect for the applicable tax year.
53 (b) Such net operating loss deduction shall not include any net oper-
54 ating loss incurred during any taxable year beginning prior to January
55 first, two thousand fifteen, or during any taxable year in which the
56 taxpayer was not subject to the tax imposed by this subchapter.
S. 8578 723
1 (c) A taxpayer that files as part of a federal consolidated return but
2 on a separate basis for purposes of this subchapter shall compute its
3 deduction and loss as if it were filing on a separate basis for federal
4 income tax purposes.
5 (d) A net operating loss may be carried back three taxable years
6 preceding the taxable year of the loss except that no loss may be
7 carried back to a taxable year beginning before January first, two thou-
8 sand fifteen. The loss first shall be carried to the earliest of the
9 three taxable years preceding the taxable year of the loss. If it is not
10 entirely used in that year, it shall be carried to the second taxable
11 year preceding the taxable year of the loss, and any remaining amount
12 shall be carried to the taxable year immediately preceding the taxable
13 year of the loss. Any unused amount of loss then remaining may be
14 carried forward for as many as twenty taxable years following the taxa-
15 ble year of the loss. Losses carried forward are carried forward first
16 to the taxable year immediately following the taxable year of the loss,
17 then to the second taxable year following the taxable year of the loss,
18 and then to the next immediately subsequent taxable year or years until
19 the loss is used up or the twentieth taxable year following the taxable
20 year of the loss, whichever comes first.
21 (e) Such net operating loss deduction shall not include any net oper-
22 ating loss incurred during any taxable year commencing after January
23 first, two thousand fifteen if the taxpayer was subject to tax under
24 subchapter two or three of this chapter in that year; provided, however,
25 any year commencing after January first, two thousand fifteen that the
26 taxpayer was subject to tax under subchapter two or three of this chap-
27 ter in that year must be treated as a taxable year for purposes of
28 determining the number of taxable years to which a net operating loss
29 may be carried forward.
30 (f) Where there are two or more allocated net operating losses, or
31 portions thereof, carried back or carried forward to be deducted in one
32 particular tax year from allocated business income, the earliest allo-
33 cated loss incurred must be applied first.
34 (g) A taxpayer may elect to waive the entire carryback period with
35 respect to a net operating loss. Such election must be made on the
36 taxpayer's original timely filed return, determined with regard to
37 extensions, for the taxable year of the net operating loss for which the
38 election is to be in effect. Once an election is made for a taxable
39 year, it shall be irrevocable for that taxable year. A separate election
40 must be made for each taxable year of the loss. This election applies to
41 all members of a combined group.
42 § 11-654.2 Receipts allocation. 1. The percentage of receipts of the
43 taxpayer to be allocated to the city for purposes of subparagraph two of
44 paragraph (a) of subdivision three of section 11-654 of this subchapter
45 shall be equal to the receipts fraction determined pursuant to this
46 section. The receipts fraction is a fraction, determined by including
47 only those receipts, net income, net gains, and other items described in
48 this section that are included in the computation of the taxpayer's
49 business income, determined without regard to the modification provided
50 in subparagraph fourteen of paragraph (a) of subdivision eight of
51 section 11-652 of this subchapter, for the taxable year. The numerator
52 of the receipts fraction shall be equal to the sum of all the amounts
53 required to be included in the numerator pursuant to the provisions of
54 this section and the denominator of the receipts fraction shall be equal
55 to the sum of all the amounts required to be included in the denominator
56 pursuant to the provisions of this section.
S. 8578 724
1 2. (a) Receipts from sales of tangible personal property where ship-
2 ments are made to points within the city or the destination of the prop-
3 erty is a point within the city shall be included in the numerator of
4 the receipts fraction. Receipts from sales of tangible personal property
5 where shipments are made to points within and without the city or the
6 destination is within and without the city shall be included in the
7 denominator of the receipts fraction.
8 (b) Receipts from sales of electricity delivered to points within the
9 city shall be included in the numerator of the receipts fraction.
10 Receipts from sales of electricity delivered to points within and with-
11 out the city shall be included in the denominator of the receipts frac-
12 tion.
13 (c) Receipts from sales of tangible personal property and electricity
14 that are traded as commodities as the term "commodity" is defined in
15 section four hundred seventy-five of the internal revenue code, shall be
16 included in the receipts fraction in accordance with clause (ix) of
17 subparagraph two of paragraph (a) of subdivision five of this section.
18 (d) Net gains, not less than zero, from the sales of real property
19 located within the city shall be included in the numerator of the
20 receipts fraction. Net gains, not less than zero, from the sales of real
21 property located within and without the city shall be included in the
22 denominator of the receipts fraction.
23 3. (a) Receipts from rentals of real and tangible personal property
24 located within the city shall be included in the numerator of the
25 receipts fraction. Receipts from rentals of real and tangible personal
26 property located within and without the city shall be included in the
27 denominator of the receipts fraction.
28 (b) Receipts of royalties from the use of patents, copyrights, trade-
29 marks, and similar intangible personal property within the city shall be
30 included in the numerator of the receipts fraction. Receipts of royal-
31 ties from the use of patents, copyrights, trademarks, and similar intan-
32 gible personal property within and without the city shall be included in
33 the denominator of the receipts fraction. A patent, copyright, trade-
34 mark, or similar intangible personal property is used within the city to
35 the extent that the activities thereunder are carried on within the
36 city.
37 (c) Receipts from the sales of rights for closed-circuit and cable
38 television transmissions of an event, other than events occurring on a
39 regularly scheduled basis, taking place within the city as a result of
40 the rendition of services by employees of the corporation, as athletes,
41 entertainers or performing artists, shall be included in the numerator
42 of the receipts fraction to the extent that such receipts are attribut-
43 able to such transmissions received or exhibited within the city.
44 Receipts from all sales of rights for closed-circuit and cable tele-
45 vision transmissions of an event, other than events occurring on a regu-
46 larly scheduled basis, shall be included in the denominator of the
47 receipts fraction.
48 4. (a) For purposes of determining the receipts fraction under this
49 section, the term "digital product" means any property or service, or
50 combination thereof, of whatever nature delivered to the purchaser
51 through the use of wire, cable, fiber-optic, laser, microwave, radio
52 wave, satellite or similar successor media, or any combination thereof.
53 Digital product includes, but is not limited to, an audio work, audi-
54 ovisual work, visual work, book or literary work, graphic work, game,
55 information or entertainment service, storage of digital products and
56 computer software by whatever means delivered. The term "delivered to"
S. 8578 725
1 includes furnished or provided to or accessed by. A digital product
2 shall not include legal, medical, accounting, architectural, research,
3 analytical, engineering or consulting services provided by the taxpayer.
4 (b) Receipts from the sale of, license to use, or granting of remote
5 access to digital products within the city, determined according to the
6 hierarchy of methods set forth in subparagraphs one through four of
7 paragraph (c) of this subdivision, shall be included in the numerator of
8 the receipts fraction. Receipts from the sale of, license to use, or
9 granting of remote access to digital products within and without the
10 city shall be included in the denominator of the receipts fraction. The
11 taxpayer must exercise due diligence under each method described in
12 paragraph (c) of this subdivision before rejecting it and proceeding to
13 the next method in the hierarchy, and must base its determination on
14 information known to the taxpayer or information that would be known to
15 the taxpayer upon reasonable inquiry. If the receipt for a digital prod-
16 uct is comprised of a combination of property and services, it cannot be
17 divided into separate components and shall be considered to be one
18 receipt regardless of whether it is separately stated for billing
19 purposes. The entire receipt must be allocated by this hierarchy.
20 (c) The hierarchy of sourcing methods is as follows: (1) the custom-
21 er's primary use location of the digital product; (2) the location where
22 the digital product is received by the customer, or is received by a
23 person designated for receipt by the customer; (3) the receipts fraction
24 determined pursuant to this subdivision for the preceding taxable year
25 for such digital product; or (4) the receipts fraction in the current
26 taxable year for those digital products that can be sourced using the
27 hierarchy of sourcing methods in subparagraphs one and two of this para-
28 graph.
29 5. (a) A financial instrument is a "nonqualified financial instrument"
30 if it is not a qualified financial instrument. A qualified financial
31 instrument means a financial instrument that is of a type described in
32 any of clauses (i), (ii), (iii), (iv), (vii), (viii) or (ix) of subpara-
33 graph two of this paragraph and that has been marked to market in the
34 taxable year by the taxpayer under section four hundred seventy-five or
35 section one thousand two hundred fifty-six of the internal revenue code.
36 Further, if the taxpayer has in the taxable year marked to market a
37 financial instrument of the type described in any of clauses (i), (ii),
38 (iii), (iv), (vii), (viii) or (ix) of subparagraph two of this para-
39 graph, then any financial instrument within that type described in the
40 above specified clause or clauses that has not been marked to market by
41 the taxpayer under section four hundred seventy-five or section one
42 thousand two hundred fifty-six of the internal revenue code is a quali-
43 fied financial instrument in the taxable year, provided, however, (i) a
44 loan secured by real property shall not be a qualified financial instru-
45 ment, (ii) if the only loans that are marked to market by the taxpayer
46 under section four hundred seventy-five or section one thousand two
47 hundred fifty-six of the internal revenue code are loans secured by real
48 property, then no loans shall be qualified financial instruments, (iii)
49 stock that is investment capital as defined in paragraph (a) of subdivi-
50 sion four of section 11-652 of this subchapter shall not be a qualified
51 financial instrument, and (iv) stock that generates other exempt income
52 as defined in subdivision five-a of section 11-652 of this subchapter
53 and that is not marked to market under section four hundred seventy-five
54 or section one thousand two hundred fifty-six of the internal revenue
55 code shall not constitute a qualified financial instrument with respect
56 to the income from that stock that is described in such subdivision
S. 8578 726
1 five-a. If a corporation is included in a combined report, the defi-
2 nition of qualified financial instrument shall be determined on a
3 combined basis. In the case of RIC or a REIT that is not a captive RIC
4 or a captive REIT, a qualified financial instrument means a financial
5 instrument that is of a type described in any of clauses (i), (ii),
6 (iii), (iv), (vii), (viii) or (ix) of subparagraph two of this para-
7 graph, other than (i) a loan secured by real property, (ii) stock that
8 is investment capital as defined in paragraph (a) of subdivision four of
9 section 11-652 of this subchapter, and (iii) stock that generates other
10 exempt income as defined in subdivision five-a of section 11-652 of this
11 subchapter with respect to the income from that stock that is described
12 in such subdivision five-a.
13 (1) In determining the inclusion of receipts and net gains from quali-
14 fied financial instruments in the receipts fraction, taxpayers may elect
15 to use the fixed percentage method described in this subparagraph for
16 qualified financial instruments. The election is irrevocable, applies to
17 all qualified financial instruments, and must be made on an annual basis
18 on the taxpayer's original, timely filed return, determined with regard
19 to extensions. If the taxpayer elects the fixed percentage method, then
20 all income, gain or loss, including marked to market net gains as
21 defined in clause (x) of subparagraph two of this paragraph, from quali-
22 fied financial instruments constitute business income, gain or loss. If
23 the taxpayer does not elect to use the fixed percentage method, then
24 receipts and net gains are included in the receipts fraction in accord-
25 ance with the customer sourcing method described in subparagraph two of
26 this paragraph. Under the fixed percentage method, eight percent of all
27 net income, not less than zero, from qualified financial instruments
28 shall be included in the numerator of the receipts fraction. All net
29 income, not less than zero, from qualified financial instruments shall
30 be included in the denominator of the receipts fraction.
31 (2) Receipts and net gains from qualified financial instruments, in
32 cases where the taxpayer did not elect to use the fixed percentage meth-
33 od described in subparagraph one of this paragraph, and from nonquali-
34 fied financial instruments shall be included in the receipts fraction in
35 accordance with this subparagraph. For purposes of this paragraph, an
36 individual is deemed to be located within the city if his or her billing
37 address is within the city. A business entity is deemed to be located
38 within the city if its commercial domicile is located within the city.
39 (i)(A) Receipts constituting interest from loans secured by real prop-
40 erty located within the city shall be included in the numerator of the
41 receipts fraction. Receipts constituting interest from loans secured by
42 real property located within and without the city shall be included in
43 the denominator of the receipts fraction.
44 (B) Receipts constituting interest from loans not secured by real
45 property shall be included in the numerator of the receipts fraction if
46 the borrower is located within the city. Receipts constituting interest
47 from loans not secured by real property, whether the borrower is located
48 within or without the city, shall be included in the denominator of the
49 receipts fraction.
50 (C) Net gains, not less than zero, from sales of loans secured by real
51 property shall be included in the numerator of the receipts fraction as
52 provided in this subclause. The amount of net gains from the sales of
53 loans secured by real property included in the numerator of the receipts
54 fraction shall be determined by multiplying the net gains by a fraction,
55 the numerator of which shall be the amount of gross proceeds from sales
56 of loans secured by real property located within the city and the denom-
S. 8578 727
1 inator of which shall be the gross proceeds from sales of loans secured
2 by real property located within and without the city. Gross proceeds
3 shall be determined after the deduction of any cost incurred to acquire
4 the loans but shall not be less than zero. Net gains, not less than
5 zero, from sales of loans secured by real property located within and
6 without the city shall be included in the denominator of the receipts
7 fraction.
8 (D) Net gains, not less than zero, from sales of loans not secured by
9 real property shall be included in the numerator of the receipts frac-
10 tion as provided in this subclause. The amount of net gains from the
11 sales of loans not secured by real property included in the numerator of
12 the receipts fraction shall be determined by multiplying the net gains
13 by a fraction, the numerator of which shall be the amount of gross
14 proceeds from sales of loans not secured by real property to purchasers
15 located within the city and the denominator of which shall be the amount
16 of gross proceeds from sales of loans not secured by real property to
17 purchasers located within and without the city. Gross proceeds shall be
18 determined after the deduction of any cost incurred to acquire the loans
19 but shall not be less than zero. Net gains, not less than zero, from
20 sales of loans not secured by real property shall be included in the
21 denominator of the receipts fraction.
22 (E) For purposes of this subdivision, a loan is secured by real prop-
23 erty if fifty percent or more of the value of the collateral used to
24 secure the loan, when valued at fair market value as of the time the
25 loan was entered into, consists of real property.
26 (ii) Federal, state, and municipal debt. Receipts constituting inter-
27 est and net gains from sales of debt instruments issued by the United
28 States, any state, or political subdivision of a state shall not be
29 included in the numerator of the receipts fraction. Receipts constitut-
30 ing interest and net gains, not less than zero, from sales of debt
31 instruments issued by the United States and the state of New York or its
32 political subdivisions, including the city, shall be included in the
33 denominator of the receipts fraction. Fifty percent of the receipts
34 constituting interest and net gains, not less than zero, from sales of
35 debt instruments issued by other states or their political subdivisions
36 shall be included in the denominator of the receipts fraction.
37 (iii) Asset backed securities and other government agency debt. Eight
38 percent of the interest income from asset backed securities or other
39 securities issued by government agencies, including but not limited to
40 securities issued by the government national mortgage association
41 (GNMA), the federal national mortgage association (FNMA), the federal
42 home loan mortgage corporation (FHLMC), or the small business adminis-
43 tration, or eight percent of the interest income from asset backed secu-
44 rities issued by other entities shall be included in the numerator of
45 the receipts fraction. Eight percent of the net gains, not less than
46 zero, from (A) sales of asset backed securities or other securities
47 issued by government agencies, including but not limited to securities
48 issued by GNMA, FNMA, FHLMC, or the small business administration, or
49 (B) sales of other asset backed securities that are sold through a
50 registered securities broker or dealer or through a licensed exchange,
51 shall be included in the numerator of the receipts fraction. The amount
52 of net gains, not less than zero, from sales of other asset backed secu-
53 rities not referenced in subclause (A) or (B) of this clause included in
54 the numerator of the receipts fraction shall be determined by multiply-
55 ing such net gains by a fraction, the numerator of which shall be the
56 amount of gross proceeds from such sales to purchasers located in the
S. 8578 728
1 city and the denominator of which shall be the amount of gross proceeds
2 from such sales to purchasers located within and without the city.
3 Receipts constituting interest income from asset backed securities and
4 other securities referenced in this clause and net gains, not less than
5 zero, from sales of asset backed securities and other securities refer-
6 enced in this clause shall be included in the denominator of the
7 receipts fraction. Gross proceeds shall be determined after the
8 deduction of any cost to acquire the securities but shall not be less
9 than zero.
10 (iv) Receipts constituting interest from corporate bonds shall be
11 included in the numerator of the receipts fraction if the commercial
12 domicile of the issuing corporation is within the city. Eight percent of
13 the net gains, not less than zero, from sales of corporate bonds sold
14 through a registered securities broker or dealer or through a licensed
15 exchange shall be included in the numerator of the receipts fraction.
16 The amount of net gains, not less than zero, from other sales of corpo-
17 rate bonds included in the numerator of the receipts fraction shall be
18 determined by multiplying such net gains by a fraction, the numerator of
19 which is the amount of gross proceeds from such sales to purchasers
20 located within the city and the denominator of which is the amount of
21 gross proceeds from sales to purchasers located within and without the
22 city. Receipts constituting interest from corporate bonds, whether the
23 issuing corporation's commercial domicile is within or without the city,
24 and net gains, not less than zero, from sales of corporate bonds to
25 purchasers within and without the city shall be included in the denomi-
26 nator of the receipts fraction. Gross proceeds shall be determined after
27 the deduction of any cost to acquire the bonds but shall not be less
28 than zero.
29 (v) Eight percent of net interest income, not less than zero, from
30 reverse repurchase agreements and securities borrowing agreements shall
31 be included in the numerator of the receipts fraction. Net interest
32 income, not less than zero, from reverse repurchase agreements and secu-
33 rities borrowing agreements shall be included in the denominator of the
34 receipts fraction. Net interest income from reverse repurchase agree-
35 ments and securities borrowing agreements shall be determined for
36 purposes of this subdivision after the deduction of the interest expense
37 from the taxpayer's repurchase agreements and securities lending agree-
38 ments but shall not be less than zero. For this calculation, the amount
39 of such interest expense shall be the interest expense associated with
40 the sum of the value of the taxpayer's repurchase agreements where it is
41 the seller/borrower plus the value of the taxpayer's securities lending
42 agreements where it is the securities lender, provided such sum is
43 limited to the sum of the value of the taxpayer's reverse repurchase
44 agreements where it is the purchaser/lender plus the value of the
45 taxpayer's securities lending agreements where it is the securities
46 borrower.
47 (vi) Eight percent of the net interest, not less than zero, from
48 federal funds shall be included in the numerator of the receipts frac-
49 tion. The net interest, not less than zero, from federal funds shall be
50 included in the denominator of the receipts fraction. Net interest from
51 federal funds shall be determined after deduction of interest expense
52 from federal funds.
53 (vii) Dividends from stock, net gains, not less than zero, from sales
54 of stock and net gains, not less than zero, from sales of partnership
55 interests shall not be included in either the numerator or denominator
56 of the receipts fraction unless the commissioner of finance determines
S. 8578 729
1 pursuant to subdivision eleven of this section that inclusion of such
2 dividends and net gains, not less than zero, is necessary to properly
3 reflect the business income or capital of the taxpayer.
4 (viii)(A) Receipts constituting interest from other financial instru-
5 ments shall be included in the numerator of the receipts fraction if the
6 payor is located within the city. Receipts constituting interest from
7 other financial instruments, whether the payor is within or without the
8 city, shall be included in the denominator of the receipts fraction.
9 (B) Net gains, not less than zero, from sales of other financial
10 instruments and other income, not less than zero, from other financial
11 instruments where the purchaser or payor is located within the city
12 shall be included in the numerator of the receipts fraction, provided
13 that, if the purchaser or payor is a registered securities broker or
14 dealer or the transaction is made through a licensed exchange, then
15 eight percent of the net gains, not less than zero, or other income, not
16 less than zero, shall be included in the numerator of the receipts frac-
17 tion. Net gains, not less than zero, from sales of other financial
18 instruments and other income, not less than zero, from other financial
19 instruments shall be included in the denominator of the receipts frac-
20 tion.
21 (ix) Net income, not less than zero, from sales of physical commod-
22 ities shall be included in the numerator of the receipts fraction as
23 provided in this clause. The amount of net income from sales of physical
24 commodities included in the numerator of the receipts fraction shall be
25 determined by multiplying the net income from sales of physical commod-
26 ities by a fraction, the numerator of which shall be the amount of
27 receipts from sales of physical commodities actually delivered to points
28 within the city or, if there is no actual delivery of the physical
29 commodity, sold to purchasers located within the city, and the denomina-
30 tor of which shall be the amount of receipts from sales of physical
31 commodities actually delivered to points within and without the city or,
32 if there is no actual delivery of the physical commodity, sold to
33 purchasers located within and without the city. Net income, not less
34 than zero, from sales of physical commodities shall be included in the
35 denominator of the receipts fraction. Net income, not less than zero,
36 from sales of physical commodities shall be determined after the
37 deduction of the cost to acquire or produce the physical commodities.
38 (x)(A) For purposes of this subdivision, "marked to market" means that
39 a financial instrument is, under section four hundred seventy-five or
40 section twelve hundred fifty-six of the internal revenue code, treated
41 by the taxpayer as sold for its fair market value on the last business
42 day of the taxpayer's taxable year. "Marked to market gain or loss"
43 means the gain or loss recognized by the taxpayer under section four
44 hundred seventy-five or section twelve hundred fifty-six of the internal
45 revenue code because the financial instrument is treated as sold for its
46 fair market value on the last business day of the taxpayer's taxable
47 year.
48 (B) The amount of marked to market net gains, not less than zero, from
49 each type of financial instrument that is marked to market included in
50 the numerator of the receipts fraction shall be determined by multiply-
51 ing the marked to market net gains, not less than zero, from such type
52 of financial instrument by a fraction, the numerator of which shall be
53 the numerator of the receipts fraction for net gains from that type of
54 financial instrument determined under the applicable clause of this
55 subparagraph and the denominator of which shall be the denominator of
56 the receipts fraction for net gains from that type of financial instru-
S. 8578 730
1 ment determined under the applicable clause of this subparagraph. Marked
2 to market net gains, not less than zero, from financial instruments for
3 which the numerator of the receipts fraction for net gains is determined
4 under this subparagraph shall be included in the denominator of the
5 receipts fraction.
6 (C) If the type of financial instrument that is marked to market is
7 not otherwise sourced by the taxpayer under this subparagraph, or if the
8 taxpayer has a net loss from the sales of that type of financial instru-
9 ment under the applicable clause of this subparagraph, the amount of
10 marked to market net gains, not less than zero, from that type of finan-
11 cial instrument included in the numerator of the receipts fraction shall
12 be determined by multiplying the marked to market net gains, but not
13 less than zero, from that type of financial instrument by a fraction,
14 the numerator of which shall be the sum of the amount of receipts
15 included in the numerator of the receipts fraction under clauses (i)
16 through (ix) of this subparagraph and subclause (B) of this clause, and
17 the denominator of which shall be the sum of the amount of receipts
18 included in the denominator of the receipts fraction under clauses (i)
19 through (ix) of this subparagraph and subclause (B) of this clause.
20 Marked to market net gains, not less than zero, for which the amount to
21 be included in the numerator of the receipts fraction is determined
22 under this subparagraph shall be included in the denominator of the
23 receipts fraction.
24 (b) Receipts of a registered securities broker or dealer from securi-
25 ties or commodities broker or dealer activities described in this para-
26 graph shall be deemed to be generated within the city as described in
27 subparagraphs one through eight of this paragraph. Receipts from such
28 activities generated within the city shall be included in the numerator
29 of the receipts fraction. Receipts from such activities generated within
30 and without the city shall be included in the denominator of the
31 receipts fraction. For the purposes of this paragraph, the term "securi-
32 ties" shall have the same meaning as in paragraph two of subsection (c)
33 of section four hundred seventy-five of the internal revenue code and
34 the term "commodities" shall have the same meaning as in paragraph two
35 of subsection (e) of section four hundred seventy-five of the internal
36 revenue code.
37 (1) Receipts constituting brokerage commissions derived from the
38 execution of securities or commodities purchase or sales orders for the
39 accounts of customers shall be deemed to be generated within the city if
40 the mailing address in the records of the taxpayer of the customer who
41 is responsible for paying such commissions is within the city.
42 (2) Receipts constituting margin interest earned on behalf of broker-
43 age accounts shall be deemed to be generated within the city if the
44 mailing address in the records of the taxpayer of the customer who is
45 responsible for paying such margin interest is within the city.
46 (3) (i) Receipts constituting fees earned by the taxpayer for advisory
47 services to a customer in connection with the underwriting of securities
48 for such customer, such customer being the entity that is contemplating
49 issuing or is issuing securities, or fees earned by the taxpayer for
50 managing an underwriting shall be deemed to be generated within the city
51 if the mailing address in the records of the taxpayer of such customer
52 who is responsible for paying such fees is within the city.
53 (ii) Receipts constituting the primary spread of selling concession
54 from underwritten securities shall be deemed to be generated within the
55 city if the customer is located within the city.
S. 8578 731
1 (iii) The term "primary spread" means the difference between the price
2 paid by the taxpayer to the issuer of the securities being marketed and
3 the price received from the subsequent sale of the underwritten securi-
4 ties at the initial public offering price, less any selling concession
5 and any fees paid to the taxpayer for advisory services or any manager's
6 fees, if such fees are not paid by the customer to the taxpayer sepa-
7 rately. The term "public offering price" means the price agreed upon by
8 the taxpayer and the issuer at which the securities are to be offered to
9 the public. The term "selling concession" means the amount paid to the
10 taxpayer for participating in the underwriting of a security where the
11 taxpayer is not the lead underwriter.
12 (4) Receipts constituting account maintenance fees shall be deemed to
13 be generated within the city if the mailing address in the records of
14 the taxpayer of the customer who is responsible for paying such account
15 maintenance fees is within the city.
16 (5) Receipts constituting fees for management or advisory services,
17 including fees for advisory services in relation to merger or acquisi-
18 tion activities, but excluding fees paid for services described in para-
19 graph (d) of this subdivision, shall be deemed to be generated within
20 the city if the mailing address in the records of the taxpayer of the
21 customer who is responsible for paying such fees is within the city.
22 (6) Receipts constituting interest earned by the taxpayer on loans and
23 advances made by the taxpayer to a corporation affiliated with the
24 taxpayer but with which the taxpayer is not permitted or required to
25 file a combined report pursuant to section 11-654.3 of this subchapter
26 shall be deemed to arise from services performed at the principal place
27 of business of such affiliated corporation.
28 (7) If the taxpayer receives any of the receipts enumerated in subpar-
29 agraphs one through four of this paragraph as a result of a securities
30 correspondent relationship such taxpayer has with another broker or
31 dealer with the taxpayer acting in this relationship as the clearing
32 firm, such receipts shall be deemed to be generated within the city to
33 the extent set forth in each of such subparagraphs. The amount of such
34 receipts shall exclude the amount the taxpayer is required to pay to the
35 correspondent firm for such correspondent relationship. If the taxpayer
36 receives any of the receipts enumerated in subparagraphs one through
37 four of this paragraph as a result of a securities correspondent
38 relationship such taxpayer has with another broker or dealer with the
39 taxpayer acting in this relationship as the introducing firm, such
40 receipts shall be deemed to be generated within the city to the extent
41 set forth in each of such subparagraphs.
42 (8) If, for the purposes of subparagraph one, subparagraph two, clause
43 (i) of subparagraph three, subparagraph four, or subparagraph five of
44 this paragraph, the taxpayer is unable from its records to determine the
45 mailing address of the customer, eight percent of the receipts shall be
46 included in the numerator of the receipts fraction.
47 (c) Receipts relating to the bank, credit, travel, and entertainment
48 card activities described in this paragraph shall be deemed to be gener-
49 ated within the city as described in subparagraphs one through four of
50 this paragraph. Receipts from such activities generated within the city
51 shall be included in the numerator of the receipts fraction. Receipts
52 from such activities generated within and without the city shall be
53 included in the denominator of the receipts fraction.
54 (1) Receipts constituting interest, and fees and penalties in the
55 nature of interest, from bank, credit, travel and entertainment card
56 receivables shall be deemed to be generated within the city if the mail-
S. 8578 732
1 ing address of the card holder in the records of the taxpayer is within
2 the city;
3 (2) Receipts from service charges and fees from such cards shall be
4 deemed to be generated within the city if the mailing address of the
5 card holder in the records of the taxpayer is within the city;
6 (3) Receipts from merchant discounts shall be deemed to be generated
7 within the city if the merchant is located within the city. In the case
8 of a merchant with locations both within and without the city, only
9 receipts from merchant discounts attributable to sales made from
10 locations within the city are allocated to the city. It shall be
11 presumed that the location of the merchant is the address of the
12 merchant shown on the invoice submitted by the merchant to the taxpayer;
13 and
14 (4) Receipts from credit card authorization processing, and clearing
15 and settlement processing received by a credit card processor shall be
16 deemed to be generated within the city if the location where the credit
17 card processor's customer accesses the credit card processor's network
18 is located within the city. The amount of all other receipts received by
19 a credit card processor not specifically addressed in subdivisions one
20 through nine or subdivision twelve of this section deemed to be gener-
21 ated within the city shall be determined by multiplying the total amount
22 of such other receipts by the average of (i) eight percent and (ii) the
23 percent of Staten Island access points. The percent of Staten Island
24 access points shall be the number of locations in Staten Island from
25 which the credit card processor's customers access the credit card
26 processor's network divided by the total number of locations in the
27 United States where the credit card processor's customers access the
28 credit card processor's network.
29 (d) Receipts received from an investment company arising from the sale
30 of management, administration or distribution services to such invest-
31 ment company shall be included in the denominator of the receipts frac-
32 tion. The portion of such receipts included in the numerator of the
33 receipts fraction, such portion referred to herein as the Staten Island
34 portion, shall be determined as provided in this paragraph.
35 (1) The Staten Island portion shall be the product of the total of
36 such receipts from the sale of such services and a fraction. The numera-
37 tor of that fraction shall be the sum of the monthly percentages, as
38 defined hereinafter, determined for each month of the investment compa-
39 ny's taxable year for federal income tax purposes which taxable year
40 ends within the taxable year of the taxpayer, but excluding any month
41 during which the investment company had no outstanding shares. The
42 monthly percentage for each such month shall be determined by dividing
43 the number of shares in the investment company that are owned on the
44 last day of the month by shareholders that are located in the city by
45 the total number of shares in the investment company outstanding on that
46 date. The denominator of the fraction shall be the number of such month-
47 ly percentages.
48 (2)(i) For purposes of this paragraph, an individual, estate or trust
49 shall be deemed to be located within the city if his, her or its mailing
50 address in the records of the investment company is located within the
51 city. A business entity is deemed to be located within the city if its
52 commercial domicile is located within the city.
53 (ii) For purposes of this paragraph, the term "investment company"
54 means a regulated investment company, as defined in section eight
55 hundred fifty-one of the internal revenue code, and a partnership to
56 which subsection (a) of section seven thousand seven hundred four of the
S. 8578 733
1 internal revenue code applies, by virtue of paragraph three of
2 subsection (c) of section seven thousand seven hundred four of such
3 code, and that meets the requirements of subsection (b) of section eight
4 hundred fifty-one of such code. The provisions of this subparagraph
5 shall be applied to the taxable year for federal income tax purposes of
6 the business entity that is asserted to constitute an investment company
7 that ends within the taxable year of the taxpayer.
8 (iii) For purposes of this paragraph, the term "receipts received from
9 an investment company" includes amounts received directly from an
10 investment company as well as amounts received from the shareholders in
11 such investment company, in their capacity as such.
12 (iv) For purposes of this paragraph, the term "management services"
13 means the rendering of investment advice to an investment company,
14 making determinations as to when sales and purchases of securities are
15 to be made on behalf of an investment company, or the selling or
16 purchasing of securities constituting assets of an investment company,
17 and related activities, but only where such activity or activities are
18 performed pursuant to a contract with the investment company entered
19 into pursuant to subsection (a) of section fifteen of the federal
20 investment company act of nineteen hundred forty, as amended.
21 (v) For purposes of this paragraph, the term "distribution services"
22 means the services of advertising, servicing investor accounts, includ-
23 ing redemptions, marketing shares or selling shares of an investment
24 company, but, in the case of advertising, servicing investor accounts,
25 including redemptions, or marketing shares, only where such service is
26 performed by a person who is, or was, in the case of a closed end compa-
27 ny, also engaged in the service of selling such shares. In the case of
28 an open end company, such service of selling shares must be performed
29 pursuant to a contract entered into pursuant to subsection (b) of
30 section fifteen of the federal investment company act of nineteen
31 hundred forty, as amended.
32 (vi) For purposes of this paragraph, the term "administration
33 services" includes clerical, accounting, bookkeeping, data processing,
34 internal auditing, legal and tax services performed for an investment
35 company but only if the provider of such service or services during the
36 taxable year in which such service or services are sold also sells
37 management or distribution services, as defined in subparagraph (v) of
38 this paragraph, to such investment company.
39 (e) For purposes of this subdivision, a taxpayer shall use the follow-
40 ing hierarchy to determine the commercial domicile of a business entity,
41 based on the information known to the taxpayer or information that would
42 be known upon reasonable inquiry: (1) the seat of management and control
43 of the business entity; and (2) the billing address of the business
44 entity in the taxpayer's records. The taxpayer must exercise due dili-
45 gence before rejecting the first method in this hierarchy and proceeding
46 to the next method.
47 (f) For purposes of this subdivision, the term "registered securities
48 broker or dealer" means a broker or dealer registered as such by the
49 securities and exchange commission or a broker or dealer registered as
50 such by the commodities futures trading commission, and shall include an
51 OTC derivatives dealer as defined under regulations of the securities
52 and exchange commission at title 17, part 240, section 3b-12 of the code
53 of federal regulations (17 CFR 240.3b-12).
54 5-a. Notwithstanding any other provision of this section, net global
55 intangible low-taxed income shall be included in the receipts fraction
56 as provided in this subdivision. Receipts constituting net global intan-
S. 8578 734
1 gible low-taxed income shall not be included in the numerator of the
2 receipts fraction. Receipts constituting net global intangible low-taxed
3 income shall be included in the denominator of the receipts fraction.
4 For purposes of this subdivision, the term "net global intangible low-
5 taxed income" means the amount required to be included in the taxpayer's
6 federal gross income pursuant to subsection (a) of section nine hundred
7 fifty-one-D of the internal revenue code less the amount of the
8 deduction allowed under clause (i) of subparagraph (B) of paragraph one
9 of subdivision (a) of section two hundred fifty of such code.
10 6. Receipts from the conduct of a railroad business, including surface
11 railroad, whether or not operated by steam, subway railroad, elevated
12 railroad, palace car or sleeping car business, or a trucking business
13 shall be included in the numerator of the receipts fraction as follows.
14 The amount of receipts from the conduct of a railroad business or a
15 trucking business included in the numerator of the receipts fraction
16 shall be determined by multiplying the amount of receipts from such
17 business by a fraction, the numerator of which shall be the miles in
18 such business within the city during the period covered by the taxpay-
19 er's report and the denominator of which shall be the miles in such
20 business within and without the city during such period. Receipts from
21 the conduct of the railroad business or a trucking business shall be
22 included in the denominator of the receipts fraction.
23 7. (a) Receipts of a taxpayer acting as principal from the activity of
24 air freight forwarding and like indirect air carrier receipts arising
25 from such activity shall be included in the numerator of the receipts
26 fraction as follows: one hundred percent of such receipts if both the
27 pickup and delivery associated with such receipts are made within the
28 city and fifty percent of such receipts if either the pickup or delivery
29 associated with such receipts is made within this city. Such receipts,
30 whether the pickup or delivery associated with the receipts is within or
31 without the city, shall be included in the denominator of the receipts
32 fraction.
33 (b)(1)(i) The portion of receipts of a taxpayer from aviation
34 services, other than services described in paragraph (a) of this subdi-
35 vision, but including the receipts of a qualified air freight forwarder,
36 to be included in the numerator of the receipts fraction shall be deter-
37 mined by multiplying its receipts from such aviation services by a
38 percentage which is equal to the arithmetic average of the following
39 three percentages:
40 (A) the percentage determined by dividing the aircraft arrivals and
41 departures within the city by the taxpayer during the period covered by
42 its report by the total aircraft arrivals and departures within and
43 without the city during such period; provided, however, arrivals and
44 departures solely for maintenance or repair, refueling, where no debar-
45 kation or embarkation of traffic occurs, arrivals and departures of
46 ferry and personnel training flights or arrivals and departures in the
47 event of emergency situations shall not be included in computing such
48 arrival and departure percentage; provided, further, the commissioner of
49 finance may also exempt from such percentage aircraft arrivals and
50 departures of all non-revenue flights including flights involving the
51 transportation of officers or employees receiving air transportation to
52 perform maintenance or repair services or where such officers or employ-
53 ees are transported in conjunction with an emergency situation or the
54 investigation of an air disaster, other than on a scheduled flight;
55 provided, however, that arrivals and departures of flights transporting
56 officers and employees receiving air transportation for purposes other
S. 8578 735
1 than specified above, without regard to remuneration, shall be included
2 in computing such arrival and departure percentage;
3 (B) the percentage determined by dividing the revenue tons handled by
4 the taxpayer at airports within the city during such period by the total
5 revenue tons handled by it at airports within and without the city
6 during such period; and
7 (C) the percentage determined by dividing the taxpayer's originating
8 revenue within the city for such period by its total originating revenue
9 within and without the city for such period.
10 (ii) As used herein the term "aircraft arrivals and departures" means
11 the number of landings and takeoffs of the aircraft of the taxpayer and
12 the number of air pickups and deliveries by the aircraft of such taxpay-
13 er; the term "originating revenue" means revenue to the taxpayer from
14 the transportation of revenue passengers and revenue property first
15 received by the taxpayer either as originating or connecting traffic at
16 airports; and the term "revenue tons handled by the taxpayer at
17 airports" means the weight in tons of revenue passengers, at two hundred
18 pounds per passenger, and revenue cargo first received either as origi-
19 nating or connecting traffic or finally discharged by the taxpayer at
20 airports.
21 (2) All such receipts of a taxpayer from aviation services described
22 in this paragraph shall be included in the denominator of the receipts
23 fraction.
24 (3) A corporation is a qualified air freight forwarder with respect to
25 another corporation:
26 (i) if it owns or controls either directly or indirectly all of the
27 capital stock of such other corporation, or if all of its capital stock
28 is owned or controlled either directly or indirectly by such other
29 corporation, or if all of the capital stock of both corporations is
30 owned or controlled either directly or indirectly by the same interests;
31 (ii) if it is principally engaged in the business of air freight
32 forwarding; and
33 (iii) if its air freight forwarding business is carried on principally
34 with the airline or airlines operated by such other corporation.
35 8. (a) The amount of receipts from sales of advertising in newspapers
36 or periodicals included in the numerator of the receipts fraction shall
37 be determined by multiplying the total of such receipts by a fraction,
38 the numerator of which shall be the number of newspapers and periodicals
39 delivered to points within the city and the denominator of which shall
40 be the number of newspapers and periodicals delivered to points within
41 and without the city. The total of such receipts from sales of advertis-
42 ing in newspapers or periodicals shall be included in the denominator of
43 the receipts fraction.
44 (b) The amount of receipts from sales of advertising on television or
45 radio included in the numerator of the receipts fraction shall be deter-
46 mined by multiplying the total of such receipts by a fraction, the
47 numerator of which shall be the number of viewers or listeners within
48 the city and the denominator of which shall be the number of viewers or
49 listeners within and without the city. The total of such receipts from
50 sales of advertising on television or radio shall be included in the
51 denominator of the receipts fraction.
52 (c) The amount of receipts from sales of advertising not described in
53 paragraph (a) or (b) of this subdivision that is furnished, provided or
54 delivered to, or accessed by the viewer or listener through the use of
55 wire, cable, fiber-optic, laser, microwave, radio wave, satellite or
56 similar successor media or any combination thereof, included in the
S. 8578 736
1 numerator of the receipts fraction shall be determined by multiplying
2 the total of such receipts by a fraction, the numerator of which shall
3 be the number of viewers or listeners within the city and the denomina-
4 tor of which shall be the number of viewers or listeners within and
5 without the city. The total of such receipts from sales of advertising
6 described in this paragraph shall be included in the denominator of the
7 receipts fraction.
8 9. Receipts from the transportation or transmission of gas through
9 pipes shall be included in the numerator of the receipts fraction as
10 follows. The amount of receipts from the transportation or transmission
11 of gas through pipes included in the numerator of the receipts fraction
12 shall be determined by multiplying the total amount of such receipts by
13 a fraction, the numerator of which shall be the taxpayer's transporta-
14 tion units within the city and the denominator of which shall be the
15 taxpayer's transportation units within and without the city. A transpor-
16 tation unit is the transportation of one cubic foot of gas over a
17 distance of one mile. The total amount of receipts from the transporta-
18 tion or transmission of gas through pipes shall be included in the
19 denominator of the receipts fraction.
20 10. (a) Receipts from services not addressed in subdivisions one
21 through nine or subdivision twelve of this section and other business
22 receipts not addressed in such subdivisions shall be included in the
23 numerator of the receipts fraction if the location of the customer is
24 within the city. Such receipts from customers within and without the
25 city shall be included in the denominator of the receipts fraction.
26 Whether the receipts are included in the numerator of the receipts frac-
27 tion shall be determined according to the hierarchy of methods set forth
28 in paragraph (b) of this subdivision. The taxpayer must exercise due
29 diligence under each method described in such paragraph before rejecting
30 it and proceeding to the next method in the hierarchy, and must base its
31 determination on information known to the taxpayer or information that
32 would be known to the taxpayer upon reasonable inquiry.
33 (b) The hierarchy of methods is as follows: (1) the benefit is
34 received in the city; (2) delivery destination; (3) the receipts frac-
35 tion for such receipts within the city determined pursuant to this
36 subdivision for the preceding taxable year; or (4) the receipts fraction
37 in the current taxable year determined pursuant to this subdivision for
38 those receipts that can be sourced using the hierarchy of sourcing meth-
39 ods in subparagraphs one and two of this paragraph.
40 11. If it shall appear that the receipts fraction determined pursuant
41 to this section does not result in a proper reflection of the taxpayer's
42 business income or capital within the city, the commissioner of finance
43 is authorized in his or her discretion to adjust it, or the taxpayer may
44 request that the commissioner of finance adjust it, by (a) excluding one
45 or more items in such determination, (b) including one or more other
46 items in such determination, or (c) any other similar or different meth-
47 od calculated to effect a fair and proper allocation of the business
48 income and capital reasonably attributed to the city. The party seeking
49 the adjustment shall bear the burden of proof to demonstrate that the
50 receipts fraction determined pursuant to this section does not result in
51 a proper reflection of the taxpayer's business income or capital within
52 the city and that the proposed adjustment is appropriate.
53 12. Receipts from the operation of vessels shall be included in the
54 numerator of the receipts fraction as follows. The amount of receipts
55 from the operation of vessels included in the numerator of the receipts
56 fraction shall be determined by multiplying the amount of such receipts
S. 8578 737
1 by a fraction, the numerator of which shall be the aggregate number of
2 working days of the vessels owned or leased by the taxpayer in territo-
3 rial waters of the city during the period covered by the taxpayer's
4 report and the denominator of which shall be the aggregate number of
5 working days of all vessels owned or leased by the taxpayer during such
6 period. Receipts from the operation of vessels shall be included in the
7 denominator of the receipts fraction.
8 § 11-654.3 Combined reports. 1. (a) The tax on a combined report shall
9 be the highest of (1) the combined business income multiplied by the tax
10 rate specified in clause (i) of subparagraph one of paragraph (e) of
11 subdivision one of section 11-654 of this subchapter; (2) the combined
12 capital multiplied by the tax rate specified in clause (ii) of subpara-
13 graph one of paragraph (e) of subdivision one of section 11-654 of this
14 subchapter, but not exceeding the limitation provided for in such clause
15 (ii); or (3) the fixed dollar minimum that is attributable to the desig-
16 nated agent of the combined group. In addition, the tax on a combined
17 report shall include the fixed dollar minimum tax specified in clause
18 (iv) of subparagraph one of paragraph (e) of subdivision one of section
19 11-654 of this subchapter for each member of the combined group, other
20 than the designated agent, that is a taxpayer.
21 (b) The combined business income base is the amount of the combined
22 business income of the combined group that is allocated to the city,
23 reduced by any prior net operating loss conversion subtraction and any
24 net operating loss deduction for the combined group. The combined capi-
25 tal base is the amount of the combined capital of the combined group
26 that is allocated to the city.
27 2. (a) Except as provided in paragraph (c) of this subdivision, any
28 taxpayer (1) which owns or controls either directly or indirectly more
29 than fifty percent of the voting power of the capital stock of one or
30 more other corporations, or (2) more than fifty percent of the voting
31 power of the capital stock of which is owned or controlled either
32 directly or indirectly by one or more other corporations, or (3) more
33 than fifty percent of the voting power of the capital stock of which and
34 the capital stock of one or more other corporations, is owned or
35 controlled, directly or indirectly, by the same interests, and (4) that
36 is engaged in a unitary business with those corporations, hereinafter
37 referred to as "related corporations", shall make a combined report with
38 those other corporations.
39 (b) A corporation required to make a combined report within the mean-
40 ing of this section shall also include (1) a captive REIT and a captive
41 RIC; (2) a combinable captive insurance company; and (3) an alien corpo-
42 ration that satisfies the conditions in paragraph (a) of this subdivi-
43 sion if (i) under any provision of the internal revenue code, that
44 corporation is treated as a "domestic corporation" as defined in section
45 seven thousand seven hundred one of the internal revenue code, or (ii)
46 it has effectively connected income for the taxable year pursuant to
47 clause (iii) of the opening paragraph of subdivision eight of section
48 11-652 of this subchapter.
49 (c) A corporation required or permitted to make a combined report
50 under this section does not include (1) a corporation that is taxable
51 under a tax imposed by subchapter two or three of this chapter or chap-
52 ter eleven of this title, except for a vendor of utility services that
53 is taxable under both chapter eleven of this title and this subchapter,
54 or would be taxable under a tax imposed by subchapter two or three of
55 this chapter or chapter eleven of this title, except for a vendor of
56 utility services that is taxable under both chapter eleven of this title
S. 8578 738
1 and this subchapter, or would have been taxable as an insurance corpo-
2 ration under the former part IV, title R, chapter forty-six of the
3 administrative code as in effect on June thirtieth, nineteen hundred
4 seventy-four; (2) a REIT that is not a captive REIT, and a RIC that is
5 not a captive RIC; or (3) an alien corporation that under any provision
6 of the internal revenue code is not treated as a "domestic corporation"
7 as defined in section seven thousand seven hundred one of such code and
8 has no effectively connected income for the taxable year pursuant to
9 clause (iii) of the opening paragraph of subdivision eight of section
10 11-652 of this subchapter. If a corporation is subject to tax under this
11 subchapter solely as a result of its ownership of a limited partner
12 interest in a limited partnership that is doing business, employing
13 capital, owning or leasing property, or maintaining an office in this
14 city, and none of the corporation's related corporations are subject to
15 tax under this subchapter, such corporation shall not be required or
16 permitted to file a combined report under this section with such related
17 corporations.
18 (d) A combined report shall be filed by the designated agent of the
19 combined group as determined under subdivision seven of this section.
20 3. (a) Subject to the provisions of paragraph (c) of subdivision two
21 of this section, a taxpayer may elect to treat as its combined group all
22 corporations that meet the ownership requirements described in paragraph
23 (a) of subdivision two of this section, such corporations collectively
24 referred to in this subdivision as the "commonly owned group". If that
25 election is made, the commonly owned group shall calculate the combined
26 business income, combined business capital, and fixed dollar minimum
27 amount of all members of the group in accordance with paragraph four of
28 this subdivision, whether or not that business income or business capi-
29 tal is from a single unitary business.
30 (b) The election under this subdivision shall be made on an original,
31 timely filed return, determined with regard to extensions, of the
32 combined group. Any corporation entering a commonly owned group subse-
33 quent to the year of election shall be included in the combined group
34 and is considered to have waived any objection to its inclusion in the
35 combined group.
36 (c) The election shall be irrevocable, and binding for and applicable
37 to the taxable year for which it is made and for the next six taxable
38 years. The election will automatically be renewed for another seven
39 taxable years after it has been in effect for seven taxable years unless
40 it is affirmatively revoked. The revocation shall be made on an
41 original, timely filed return, determined with regard to extensions, for
42 the first taxable year after the completion of a seven year period for
43 which an election under this subdivision was in place. In the case of a
44 revocation, a new election under this subdivision shall not be permitted
45 in any of the immediately following three taxable years. In determining
46 the seven and three year periods described in this paragraph, short
47 taxable years shall not be considered or counted.
48 4. (a) In computing the tax bases for a combined report, the combined
49 group shall generally be treated as a single corporation, except as
50 otherwise provided, and subject to any regulations or guidance issued by
51 the commissioner of finance or the department of finance.
52 (b)(1) In computing combined business income, all intercorporate divi-
53 dends shall be eliminated, and all other intercorporate transactions
54 shall be deferred in a manner similar to the United States treasury
55 department regulations relating to intercompany transactions under
56 section fifteen hundred two of the internal revenue code.
S. 8578 739
1 (2) In computing combined capital, all intercorporate stockholdings,
2 intercorporate bills, intercorporate notes receivable and payable,
3 intercorporate accounts receivable and payable, and other intercorporate
4 indebtedness, shall be eliminated.
5 (c) Qualification for credits, including any limitations thereon,
6 shall be determined separately for each of the members of the combined
7 group, and shall not be determined on a combined group basis, except as
8 otherwise provided. However, the credits shall be applied against the
9 combined tax of the group. To the extent that a provision of section
10 11-654 of this subchapter, or any other applicable section of this
11 subchapter, limits a credit to the fixed dollar minimum amount
12 prescribed in clause (iv) of subparagraph one of paragraph (e) of subdi-
13 vision one of section 11-654 of this subchapter, such fixed dollar mini-
14 mum amount shall be the fixed dollar minimum amount that is attributable
15 to the designated agent of the combined group.
16 (d)(1) A net operating loss deduction is allowed in computing the
17 combined business income base. Such deduction may reduce the tax on the
18 combined business income base to the higher of the tax on the combined
19 capital or the fixed dollar minimum amount that is attributable to the
20 designated agent of the combined group. A combined net operating loss
21 deduction is equal to the amount of combined net operating loss or loss-
22 es from one or more taxable years that are carried forward or carried
23 back to a particular taxable year. A combined net operating loss is the
24 combined business loss incurred in a particular taxable year multiplied
25 by the combined business allocation percentage for that year determined
26 as provided in subdivision five of this section.
27 (2) The combined net operating loss deduction and combined net operat-
28 ing loss are also subject to the provisions contained in paragraphs (a)
29 through (g) of subdivision three of section 11-654.1 of this subchapter.
30 (3) In the case of a corporation that files a combined report, either
31 in the year the net operating loss is incurred or in the year in which a
32 deduction is claimed on account of the loss, the combined net operating
33 loss deduction is determined as if the combined group is a single corpo-
34 ration and, to the extent possible and not otherwise inconsistent with
35 this subdivision, is subject to the same limitations that would apply
36 for federal income tax purposes under the internal revenue code and the
37 code of federal regulations as if such corporation had filed for such
38 taxable year a consolidated federal income tax return with the same
39 corporations included in the combined report. If a corporation files a
40 combined report, regardless of whether it filed a separate return or
41 consolidated return for federal income tax purposes, the net operating
42 loss and net operating loss deduction for the combined group must be
43 computed as if the corporation had filed a consolidated return for the
44 same corporations for federal income tax purposes.
45 (4) In general, any net operating loss carryover from a year in which
46 a combined report was filed shall be based on the combined net operating
47 loss of the group of corporations filing such report. The portion of the
48 combined loss attributable to any member of the group that files a sepa-
49 rate report for a succeeding taxable year will be an amount bearing the
50 same relation to the combined loss as the net operating loss of such
51 corporation bears to the total net operating loss of all members of the
52 group having such losses to the extent that they are taken into account
53 in computing the combined net operating loss.
54 (d-1) A prior net operating loss conversion subtraction is allowed in
55 computing the combined business income base, as provided in subdivisions
56 one and two of section 11-654.1 of this subchapter. Such subtraction may
S. 8578 740
1 reduce the tax on combined business income to the higher of the tax on
2 combined capital or the fixed dollar minimum amount that is attributable
3 to the designated agent of the combined group.
4 (e)(i) Any election made pursuant to paragraph (b) of subdivision
5 five, paragraphs (b) and (c) of subdivision five-a of section 11-652 of
6 this subchapter, and paragraph (g) of subdivision three of section
7 11-654.1 of this subchapter shall apply to all members of the combined
8 group.
9 (ii) The determination of whether or not the limitation on investment
10 income provided in subparagraph (iii) of paragraph (a) of subdivision
11 five of section 11-652 of this subchapter to the combined group shall be
12 based on the investment income of the combined group, determined without
13 regard to interest expenses attributable to investment capital or
14 investment income, and the entire net income of the combined group.
15 (f)(1) In the case of a captive REIT or captive RIC required under
16 this section to be included in a combined report, entire net income
17 shall be computed as required under subdivision seven, in the case of a
18 captive REIT, or subdivision eight, in the case of a captive RIC, of
19 section 11-653 of this subchapter. However, the deduction under the
20 internal revenue code for dividends paid by the captive REIT or captive
21 RIC to any member of the affiliated group that includes the corporation
22 that directly or indirectly owns over fifty percent of the voting stock
23 of the captive REIT or captive RIC shall not be allowed. For purposes of
24 this subparagraph, the term "affiliated group" means "affiliated group"
25 as defined in section fifteen hundred four of the internal revenue code,
26 but without regard to the exceptions provided for in subsection (b) of
27 that section.
28 (2) In the case of a combinable captive insurance company required
29 under this section to be included in a combined report, entire net
30 income shall be computed as required by subdivision eight of section
31 11-652 of this subchapter.
32 (g) If more than one member of a combined group is eligible for any of
33 the modifications described in paragraphs (q), (r) or (s) of subdivision
34 eight of section 11-652 of this subchapter, all such members must
35 utilize the same modification.
36 5. (a) In determining the business allocation percentage for a
37 combined report, the receipts, net income, net gains and other items of
38 each member of the combined group, whether or not they are a taxpayer,
39 are included and intercorporate receipts, income and gains are elimi-
40 nated. Receipts, net income, net gains and other items are sourced, and
41 the amounts allowed in the receipts fraction are determined, as provided
42 in section 11-654.2 of this subchapter.
43 (b) An election made to allocate income and gains from qualifying
44 financial instruments pursuant to subparagraph one of paragraph (a) of
45 subdivision five of section 11-654.2 of this subchapter shall apply to
46 all members of the combined group.
47 6. Every member of the combined group that is subject to tax under
48 this article shall be jointly and severally liable for the tax due
49 pursuant to a combined report.
50 7. Each combined group shall appoint a designated agent for the
51 combined group, which shall be a taxpayer. Only the designated agent may
52 act on behalf of the members of the combined group for matters relating
53 to the combined report.
54 § 11-655 Reports. 1. Every corporation having an officer, agent or
55 representative within the city, shall annually on or before March
56 fifteenth for taxable years beginning before January first, two thousand
S. 8578 741
1 sixteen, and annually on or before April fifteenth for taxable years
2 beginning on or after January first, two thousand sixteen, transmit to
3 the commissioner of finance a report in a form prescribed by the commis-
4 sioner of finance, setting forth such information as the commissioner of
5 finance may prescribe, except that a corporation that reports on the
6 basis of a fiscal year shall transmit such report, for taxable years
7 beginning before January first, two thousand sixteen, within two and
8 one-half months after the close of its fiscal year, and, for taxable
9 years beginning after January first, two thousand sixteen, within three
10 and one-half months after the close of its fiscal year. Every taxpayer
11 that ceases to do business in the city or to be subject to the tax
12 imposed by this subchapter shall transmit to the commissioner of finance
13 a report on the date of such cessation or at such other time as the
14 commissioner of finance may require covering each year or period for
15 which no report was theretofore filed. Every taxpayer shall also trans-
16 mit such other reports and such facts and information as the commission-
17 er of finance may require in the administration of this subchapter. The
18 commissioner of finance may grant a reasonable extension of time for
19 filing reports whenever good cause exists.
20 An automatic extension of six months for the filing of its annual
21 report shall be allowed any taxpayer if, within the time prescribed by
22 the opening paragraph of this subdivision, whichever is applicable, such
23 taxpayer files with the commissioner of finance an application for
24 extension in such form as the commissioner of finance may prescribe by
25 regulation and pays on or before the date of such filing the amount
26 properly estimated as its tax.
27 2. Every report shall have annexed thereto a certification by the
28 president, vice-president, treasurer, assistant treasurer, chief
29 accounting officer or another officer of the taxpayer duly authorized so
30 to act to the effect that the statements contained therein are true. In
31 the case of an association, within the meaning of paragraph three of
32 section (a) of section seventy-seven hundred one of the internal revenue
33 code, a publicly-traded partnership treated as a corporation for
34 purposes of the internal revenue code pursuant to section seventy-seven
35 hundred four thereof and any business conducted by a trustee or trustees
36 wherein interest or ownership is evidenced by certificates or other
37 written instruments, such certification shall be made by any person duly
38 authorized so to act on behalf of such association, publicly-traded
39 partnership or business. The fact that an individual's name is signed on
40 a certification of the report shall be prima facie evidence that such
41 individual is authorized to sign and certify the report on behalf of the
42 corporation. Blank forms of reports shall be furnished by the commis-
43 sioner of finance, on application, but failure to secure such a blank
44 shall not release any corporation from the obligation of making any
45 report required by this subchapter.
46 2-a. The commissioner of finance may prescribe regulations and
47 instructions requiring returns of information to be made and filed in
48 conjunction with the reports required to be filed pursuant to this
49 section, relating to payments made to shareholders owning, directly or
50 indirectly, individually or in the aggregate, more than fifty percent of
51 the issued capital stock of the taxpayer, where such payments are treat-
52 ed as payments of interest in the computation of entire net income
53 reported on such reports.
54 3. If the amount of taxable income or other basis of tax for any year
55 of any taxpayer as returned to the United States treasury department or
56 the New York state commissioner of taxation and finance is changed or
S. 8578 742
1 corrected by the commissioner of internal revenue or other officer of
2 the United States or the New York state commissioner of taxation and
3 finance or other competent authority, or where a renegotiation of a
4 contract or subcontract with the United States or the state of New York
5 results in a change in taxable income or other basis of tax, or where a
6 recovery of a war loss results in a computation or recomputation of any
7 tax imposed by the United States or the state of New York, or if a
8 taxpayer, pursuant to subsection (d) of section sixty-two hundred thir-
9 teen of the internal revenue code, executes a notice of waiver of the
10 restrictions provided in subsection (a) of said section, or if a taxpay-
11 er, pursuant to subsection (f) of section one thousand eighty-one of the
12 tax law, executes a notice of waiver of the restrictions provided in
13 subsection (c) of said section, such taxpayer shall report such changed
14 or corrected taxable income or other basis of tax, or the results of
15 such renegotiation, or such computation, or recomputation, or such
16 execution of such notice of waiver and the changes or corrections of the
17 taxpayer's federal or New York state taxable income or other basis of
18 tax on which it is based, within ninety days, or one hundred twenty
19 days, in the case of a taxpayer making a combined report under this
20 subchapter for such year, after such execution or the final determi-
21 nation of such change or correction or renegotiation, or such computa-
22 tion, or recomputation, or as required by the commissioner of finance,
23 and shall concede the accuracy of such determination or state wherein it
24 is erroneous. The allowance of a tentative carryback adjustment based
25 upon a net operating loss carryback or net capital loss carryback pursu-
26 ant to section sixty-four hundred eleven of the internal revenue code
27 shall be treated as a final determination for purposes of this subdivi-
28 sion. Any taxpayer filing an amended return with such department shall
29 also file within ninety days, or one hundred twenty days, in the case of
30 a taxpayer making a combined report under this subchapter for such year,
31 thereafter an amended report with the commissioner of finance.
32 4. The provisions of section 11-654.3 of this subchapter shall apply
33 to combined reports.
34 5. In case it shall appear to the commissioner of finance that any
35 agreement, understanding or arrangement exists between the taxpayer and
36 any other corporation or any person or firm, whereby the activity, busi-
37 ness, income or capital of the taxpayer within the city is improperly or
38 inaccurately reflected, the commissioner of finance is authorized and
39 empowered, in its discretion and in such manner as it may determine, to
40 adjust items of income, deductions and capital, and to eliminate assets
41 in computing any allocation percentage provided only that any income
42 directly traceable thereto be also excluded from entire net income, so
43 as equitably to determine the tax. Where (a) any taxpayer conducts its
44 activity or business under any agreement, arrangement or understanding
45 in such manner as either directly or indirectly to benefit its members
46 or stockholders, or any of them, or any person or persons directly or
47 indirectly interested in such activity or business, by entering into any
48 transaction at more or less than a fair price which, but for such agree-
49 ment, arrangement or understanding, might have been paid or received
50 therefor, or (b) any taxpayer, a substantial portion of whose capital
51 stock is owned either directly or indirectly by another corporation,
52 enters into any transaction with such other corporation on such terms as
53 to create an improper loss or net income, the commissioner of finance
54 may include in the entire net income of the taxpayer the fair profits,
55 which, but for such agreement, arrangement or understanding, the taxpay-
56 er might have derived from such transaction. Where any taxpayer owns,
S. 8578 743
1 directly or indirectly, more than fifty percent of the capital stock of
2 another corporation subject to tax under section fifteen hundred two-a
3 of the tax law and fifty percent or less of whose gross receipts for the
4 taxable year consist of premiums, the commissioner of finance may
5 include in the entire net income of the taxpayer, as a deemed distrib-
6 ution, the amount of the net income of the other corporation that is in
7 excess of its net premium income.
8 6. An action may be brought at any time by the corporation counsel at
9 the instance of the commissioner of finance to compel the filing of
10 reports due under this subchapter.
11 7. Reports shall be preserved for five years, and thereafter until the
12 commissioner of finance orders them to be destroyed.
13 8. Where the New York state commissioner of taxation and finance
14 changes or corrects a taxpayer's sales and compensating use tax liabil-
15 ity with respect to the purchase or use of items for which a sales or
16 compensating use tax credit against the tax imposed by this subchapter
17 was claimed, the taxpayer shall report such change or correction to the
18 commissioner of finance within ninety days of the final determination of
19 such change or correction, or as required by the commissioner of
20 finance, and shall concede the accuracy of such determination or state
21 wherein it is erroneous. Any taxpayer filing an amended return or report
22 relating to the purchase or use of such items shall also file within
23 ninety days thereafter a copy of such amended return or report with the
24 commissioner of finance.
25 § 11-656 Payment and lien of tax. 1. To the extent the tax imposed by
26 section 11-653 of this subchapter shall not have been previously paid
27 pursuant to section 11-658 of this subchapter:
28 (a) such tax, or the balance thereof, shall be payable to the commis-
29 sioner of finance in full at the time the report is required to be
30 filed; and
31 (b) such tax, or the balance thereof, imposed on any taxpayer which
32 ceases to do business in the city or to be subject to the tax imposed by
33 this subchapter shall be payable to the commissioner of finance at the
34 time the report is required to be filed; all other taxes of any such
35 taxpayer, which pursuant to the this subdivision would otherwise be
36 payable subsequent to the time such report is required to be filed,
37 shall nevertheless be payable at such time. If the taxpayer, within the
38 time prescribed by section 11-655 of this subchapter, shall have applied
39 for an automatic extension of time to file its annual report and shall
40 have paid to the commissioner of finance on or before the date such
41 application is filed an amount properly estimated as provided by said
42 section, the only amount payable in addition to the tax shall be inter-
43 est at the underpayment rate set by the commissioner of finance pursuant
44 to section 11-687 of this chapter, or, if no rate is set, at the rate of
45 seven and one-half percent per annum upon the amount by which the tax,
46 or the portion thereof payable on or before the date the report was
47 required to be filed, exceeds the amount so paid, provided that:
48 (1) an amount so paid shall be deemed properly estimated if it is
49 either: (i) not less than ninety percent of the tax as finally deter-
50 mined, or (ii) not less than the tax shown on the taxpayer's report for
51 the preceding taxable year, if such preceding year was a taxable year of
52 twelve months; and
53 (2) the time when a report is required to be filed shall be determined
54 without regard to any extension of time for filing such report.
S. 8578 744
1 2. The commissioner of finance may grant a reasonable extension of
2 time for payment of any tax imposed by this subchapter under such condi-
3 tions as the commissioner of finance deems just and proper.
4 3. Intentionally omitted.
5 § 11-657 Declaration of estimated tax. 1. Every taxpayer subject to
6 the tax imposed by section 11-653 of this subchapter shall make a decla-
7 ration of its estimated tax for the current privilege period, containing
8 such information as the commissioner of finance may prescribe by regu-
9 lations or instructions, if such estimated tax can reasonably be
10 expected to exceed one thousand dollars.
11 2. The term "estimated tax" means the amount which a taxpayer esti-
12 mates to be the tax imposed by section 11-653 of this subchapter for the
13 current privilege period, less the amount which it estimates to be the
14 sum of any credits allowable against the tax.
15 3. In the case of a taxpayer which reports on the basis of a calendar
16 year, a declaration of estimated tax shall be filed on or before June
17 fifteenth of the current privilege period, except that if the require-
18 ments of subdivision one of this section are first met:
19 (a) after May thirty-first and before September first of such current
20 privilege period, the declaration shall be filed on or before September
21 fifteenth; or
22 (b) after August thirty-first and before December first of such
23 current privilege period, the declaration shall be filed on or before
24 December fifteenth.
25 4. A taxpayer may amend a declaration under regulations of the commis-
26 sioner of finance.
27 5. If, on or before February fifteenth of the succeeding year in the
28 case of a taxpayer which reports on the basis of a calendar year, a
29 taxpayer files its report for the year for which the declaration is
30 required, and pays therewith the balance, if any, of the full amount of
31 the tax shown to be due on the report:
32 (a) such report shall be considered as its declaration if no declara-
33 tion is required to be filed during the calendar or fiscal year for
34 which the tax was imposed, but is otherwise required to be filed on or
35 before December fifteenth pursuant to subdivision three of this section;
36 and
37 (b) such report shall be considered as the amendment permitted by
38 subdivision four of this section to be filed on or before December
39 fifteenth if the tax shown on the report is greater than the estimated
40 tax shown on a declaration previously made.
41 6. This section shall apply to privilege periods of twelve months
42 other than a calendar year by the substitution of the months of such
43 fiscal year for the corresponding months specified in this section.
44 7. If the privilege period for which a tax is imposed by section
45 11-653 of this subchapter is less than twelve months, every taxpayer
46 required to make a declaration of estimated tax for such privilege peri-
47 od shall make such a declaration in accordance with regulations of the
48 commissioner of finance.
49 8. The commissioner of finance may grant a reasonable extension of
50 time, not to exceed three months, for the filing of any declaration
51 required pursuant to this section, on such terms and conditions as it
52 may require.
53 § 11-658 Payments on account of estimated tax. 1. For taxable years
54 beginning before January first, two thousand sixteen, every taxpayer
55 subject to the tax imposed by section 11-653 of this subchapter shall
56 pay with the report required to be filed for the preceding privilege
S. 8578 745
1 period, if any, or with an application for extension of the time and
2 filing such report, an amount equal to twenty-five per centum of the
3 preceding year's tax if such preceding year's tax exceeded one thousand
4 dollars. For taxable years beginning on or after January first, two
5 thousand sixteen, every taxpayer subject to the tax imposed by section
6 11-653 of this subchapter shall pay on or before the fifteenth day of
7 March next succeeding the close of each such calendar year, or, in the
8 case of a taxpayer that reports on the basis of a fiscal year, within
9 two and one-half months after the close of each such fiscal year an
10 amount equal to twenty-five per centum of the second preceding year's
11 tax if the second preceding year's tax exceeded one thousand dollars.
12 2. The estimated tax with respect to which a declaration for such
13 privilege period is required shall be paid, in the case of a taxpayer
14 which reports on the basis of a calendar year, as follows:
15 (a) If the declaration is filed on or before June fifteenth, the esti-
16 mated tax shown thereon, after applying thereto the amount, if any, paid
17 during the same privilege period pursuant to subdivision one of this
18 section, shall be paid in three equal installments. One of such install-
19 ments shall be paid at the time of the filing of the declaration, one
20 shall be paid on the following September fifteenth, and one on the
21 following December fifteenth.
22 (b) If the declaration is filed after June fifteenth and not after
23 September fifteenth of such privilege period, and is not required to be
24 filed on or before June fifteenth of such period, the estimated tax
25 shown on such declaration, after applying thereto the amount, if any,
26 paid during the same privilege period pursuant to subdivision one of
27 this section, shall be paid in two equal installments. One of such
28 installments shall be paid at the time of the filing of the declaration
29 and one shall be paid on the following December fifteenth.
30 (c) If the declaration is filed after September fifteenth of such
31 privilege period, and is not required to be filed on or before September
32 fifteenth of such privilege period, the estimated tax shown on such
33 declaration, after applying thereto the amount, if any, paid in respect
34 to such privilege period pursuant to subdivision one of this section,
35 shall be paid in full at the time of the filing of the declaration.
36 (d) If the declaration is filed after the time prescribed therefor, or
37 after the expiration of any extension of time therefor, paragraphs (b)
38 and (c) of this subdivision shall not apply, and there shall be paid at
39 the time of such filing all installments of estimated tax payable at or
40 before such time, and the remaining installments shall be paid at the
41 times at which, and in the amounts in which, they would have been paya-
42 ble if the declaration had been filed when due.
43 3. If any amendment of a declaration is filed, the remaining install-
44 ments, if any, shall be ratably increased or decreased, as the case may
45 be, to reflect any increase or decrease in the estimated tax by reason
46 of such amendment, and if any amendment is made after September
47 fifteenth of the privilege period, any increase in the estimated tax by
48 reason thereof shall be paid at the time of making such amendment.
49 4. Any amount paid shall be applied after payment as a first install-
50 ment against the estimated tax of the taxpayer for the current privilege
51 period shown on the declaration required to be filed pursuant to section
52 11-657 of this subchapter or, if no declaration of estimated tax is
53 required to be filed by the taxpayer pursuant to such section, any such
54 amount shall be considered a payment on account of the tax shown on the
55 report required to be filed by the taxpayer for such privilege period.
S. 8578 746
1 5. Notwithstanding the provisions of section 11-679 of this chapter or
2 of section three-a of the general municipal law, if an amount paid
3 pursuant to subdivision one of this section exceeds the tax shown on the
4 report required to be filed by the taxpayer for the privilege period
5 during which the amount was paid, interest shall be allowed and paid on
6 the amount by which the amount so paid pursuant to such subdivision
7 exceeds such tax, at the overpayment rate set by the commissioner of
8 finance pursuant to section 11-687 of this chapter, or, if no rate is
9 set, at the rate of four percent per annum from the date of payment of
10 the amount so paid pursuant to such subdivision to the fifteenth day of
11 the third month following the close of the privilege period, provided,
12 however, that no interest shall be allowed or paid under this subdivi-
13 sion if the amount thereof is less than one dollar or if such interest
14 becomes payable solely because of a carryback of a net operating loss in
15 a subsequent privilege period.
16 6. As used in this section, "the preceding year's tax" means the tax
17 imposed upon the taxpayer by section 11-653 of this subchapter for the
18 preceding calendar or fiscal year, or, for purposes of computing the
19 first installment of estimated tax when either the mandatory first
20 installment is paid pursuant to subdivision one of this section or an
21 application has been filed for extension of the time for filing the
22 report required to be filed for such preceding calendar or fiscal year,
23 the amount properly estimated pursuant to section 11-657 of this
24 subchapter as the tax imposed upon the taxpayer for such calendar or
25 fiscal year. As used in this section, "the second preceding year's tax"
26 means the tax imposed upon the taxpayer by section 11-653 of this
27 subchapter for the second preceding calendar of fiscal year.
28 7. This section shall apply to a privilege period of less than twelve
29 months in accordance with regulations of the commissioner of finance.
30 8. The provisions of this section shall apply to privilege periods of
31 twelve months other than a calendar year by the substitution of the
32 months of such fiscal year for the corresponding months specified in
33 such provisions.
34 9. The commissioner of finance may grant a reasonable extension of
35 time, not to exceed six months, for payment of any installment of esti-
36 mated tax required pursuant to this section, on such terms and condi-
37 tions as the commissioner of finance may require including the furnish-
38 ing of a bond or other security by the taxpayer in an amount not
39 exceeding twice the amount for which any extension of time for payment
40 is granted, provided, however, that interest at the underpayment rate
41 set by the commissioner of finance pursuant to section 11-687 of this
42 subchapter, or, if no rate is set, at the rate of seven and one-half
43 percent per annum for the period of the extension shall be charged and
44 collected on the amount for which any extension of time for payment is
45 granted under this subdivision.
46 10. A taxpayer may elect to pay any installment of estimated tax prior
47 to the date prescribed in this section for payment thereof.
48 11. Intentionally omitted.
49 § 11-659 Collection of taxes. Every foreign corporation, other than a
50 moneyed corporation, subject to the provisions of this subchapter,
51 except a corporation having authority to do business by virtue of
52 section thirteen hundred five of the business corporation law, shall
53 file in the department of state a certificate of designation in its
54 corporate name, signed and acknowledged by its president or a vice-pre-
55 sident or its secretary or treasurer, under its corporate seal, desig-
56 nating the secretary of state as its agent upon whom process in any
S. 8578 747
1 action provided for by this subchapter may be served within this state,
2 and setting forth an address to which the secretary of state shall mail
3 a copy of any such process against the corporation which may be served
4 upon the secretary of state. In case any such corporation shall have
5 failed to file such certificate of designation, it shall be deemed to
6 have designated the secretary of state as its agent upon whom such proc-
7 ess against it may be served; and until a certificate of designation
8 shall have been filed the corporation shall be deemed to have directed
9 the secretary of state to mail copies of process served upon him or her
10 to the corporation at its last known office address within or without
11 the state. When a certificate of designation has been filed by such
12 corporation the secretary of state shall mail copies of process there-
13 after served upon the secretary of state to the address set forth in
14 such certificate. Any such corporation, from time to time, may change
15 the address to which the secretary of state is directed to mail copies
16 of process, by filing a certificate to that effect executed, signed and
17 acknowledged in like manner as a certificate of designation as herein
18 provided. Service of process upon any such corporation or upon any
19 corporation having a certificate of authority under section eight
20 hundred five of the limited liability company law or having authority to
21 do business by virtue of section thirteen hundred five of the business
22 corporation law, in any action commenced at any time pursuant to the
23 provisions of this subchapter, may be made by either: (a) personally
24 delivering to and leaving with the secretary of state, a deputy secre-
25 tary of state or with any person authorized by the secretary of state to
26 receive such service duplicate copies thereof at the office of the
27 department of state in the city of Albany, in which event the secretary
28 of state shall forthwith send by registered mail, return receipt
29 requested, one of such copies to the corporation at the address desig-
30 nated by it or at its last known office address within or without the
31 state, or (b) personally delivering to and leaving with the secretary of
32 state, a deputy secretary of state or with any person authorized by the
33 secretary of state to receive such service, a copy thereof at the office
34 of the department of state in the city of Albany and by delivering a
35 copy thereof to, and leaving such copy with, the president, vice-presi-
36 dent, secretary, assistant secretary, treasurer, assistant treasurer, or
37 cashier of such corporation, or the officer performing corresponding
38 functions under another name, or a director or managing agent of such
39 corporation, personally without the state. Proof of such personal
40 service without the state shall be filed with the clerk of the court in
41 which the action is pending within thirty days after such service, and
42 such service shall be complete ten days after proof thereof is filed.
43 § 11-660 Limitations of time. The provisions of the civil practice law
44 and rules relative to the limitation of time enforcing a civil remedy
45 shall not apply to any proceeding or action taken to levy, appraise,
46 assess, determine or enforce the collection of any tax or penalty
47 prescribed by this subchapter, provided, however, that as to real estate
48 in the hands of persons who are owners thereof who would be purchasers
49 in good faith but for such tax or penalty and as to the lien on real
50 estate of mortgages held by persons who would be holders thereof in good
51 faith but for such tax or penalty, all such taxes and penalties shall
52 cease to be a lien on such real estate as against such purchasers or
53 holders after the expiration of ten years from the date such taxes
54 became due and payable. The limitations herein provided for shall not
55 apply to any transfer from a corporation to a person or corporation with
56 intent to avoid payment of any taxes, or where with like intent the
S. 8578 748
1 transfer is made to a grantee corporation, or any subsequent grantee
2 corporation, controlled by such grantor or which has any community of
3 interest with it, either through stock ownership or otherwise.
4 SUBCHAPTER 4
5 TRANSPORTATION CORPORATION TAX
6 § 11-662 Tax on transportation corporations and associations. 1.
7 The term "corporation" as used in this subchapter shall include any
8 business conducted by a trustee or trustees wherein interest or owner-
9 ship is evidenced by certificates or other written instruments.
10 2. For the privilege of doing business or holding property in the
11 city every corporation, joint-stock company or association formed for or
12 principally engaged in the conduct of aviation, steamboat, ferry, except
13 a ferry company operating between the city of Staten Island and any of
14 the boroughs of the city of New York under a lease granted by the city
15 of New York, or navigation business, or formed for or principally
16 engaged in the conduct of two or more of such businesses, except a
17 corporation, joint-stock company or association subject to taxation
18 under chapter eleven of this title, shall pay, in advance, an annual tax
19 to be computed upon the basis of the amount of its capital stock within
20 the city during the preceding year, and upon each dollar of such amount.
21 3. The measure of the amount of capital stock in the city, except as
22 hereinafter provided, shall be such a portion of the issued capital
23 stock as the gross assets, exclusive of obligations issued by the United
24 States and cash on hand and on deposit, employed in any business within
25 the city, bear to the gross assets, exclusive of obligations issued by
26 the United States and cash on hand and on deposit, wherever employed in
27 business. Provided, however, that in the case of a corporation taxable
28 hereunder only for the privilege of holding property, the measure shall
29 be such a portion of the issued capital stock as the gross assets,
30 exclusive of obligations issued by the United States and cash on hand
31 and on deposit, located within the city, bear to the gross assets,
32 exclusive of obligations issued by the United States and cash on hand
33 and on deposit, wherever located. The capital of a corporation invested
34 in the stock of another corporation shall be deemed to be assets located
35 where the assets of the issuing corporation, other than patents, copy-
36 rights, trademarks, contracts and good will, are located.
37 4. Every corporation, joint-stock company or association subject to
38 taxation under this section shall, in any event, pay annually, for taxa-
39 ble years ending on or before December thirty-first, nineteen hundred
40 seventy-four, a minimum tax of not less than ten dollars nor less than
41 one mill, and for taxable years beginning on or after January first,
42 nineteen hundred seventy-five, a minimum tax of not less than fifteen
43 dollars nor less than one and one-half mills, on each dollar of such a
44 portion of the net value of its issued capital stock, which net value
45 for the purposes of this section shall be deemed to be not less than
46 five dollars per share, as may be determined upon such of the bases
47 herein provided for the measurement thereof as is applicable. The term
48 "net value" as used in this section shall be construed to mean not less
49 than the difference between a corporation's assets and liabilities, and
50 not less than the average price at which such stock sold during the year
51 covered by the report which forms the basis for the tax. But if the
52 dividends paid on the par value of any kind of capital stock during any
53 year ending with the thirty-first day of December amounts to six or more
54 than six per centum, the tax upon such kind of capital stock shall be at
S. 8578 749
1 the rate of one-quarter of a mill for taxable years ending on or before
2 December thirty-first, nineteen hundred seventy-four, and at the rate of
3 four-tenths of a mill for taxable years beginning on or after January
4 first, nineteen hundred seventy-five for each one per centum of divi-
5 dends paid and shall be computed upon the par value of such capital
6 stock, unless such a tax be less than the minimum tax hereinbefore
7 provided in this section and the commissioner of finance shall, for such
8 purpose, make a fair and equitable apportionment of the assets of the
9 corporation, joint-stock company or association, between or among the
10 different kinds of stock.
11 5. If such corporation, joint-stock company or association shall have
12 more than one kind of capital stock, and upon one of such kinds of stock
13 a dividend or dividends amounting to six or more than six per centum
14 upon the par value thereof, has been paid, and upon the other no divi-
15 dend has been paid, or the dividend or dividends paid thereon amount to
16 less than six per centum upon the par value thereof, then the tax shall
17 be fixed upon each kind as hereinbefore provided.
18 6. The dividend rate for a corporation having stock without nominal or
19 par value shall be determined by dividing the amount paid as a dividend
20 or dividends during the year by the amount paid in on such stock and, if
21 the rate is six per centum or more, then for taxable years ending on or
22 before December thirty-first, nineteen hundred seventy-four, the rate of
23 one-quarter of a mill for each one per centum of dividends shall be
24 applied to the amount paid in on such stock, and for taxable years
25 beginning on or after January first, nineteen hundred seventy-five, the
26 rate of four-tenths of a mill for each one per centum of dividends shall
27 be applied to the amount paid in on such stock, unless such tax be less
28 than the minimum tax hereinbefore in this section provided for. Any
29 consideration given by a corporation for the purchase of its own stock
30 in excess of the consideration received by it for the issuance of such
31 stock shall for the purposes of this section, be considered as a divi-
32 dend.
33 7. The owning or holding in the city by any corporation of property,
34 other than property exclusively in interstate or foreign commerce, shall
35 constitute carrying on business within the city within the intent of
36 this section, except that a corporation having no property in the city
37 other than a bank balance or stocks or bonds, or one or more of such
38 kinds of property, either held for safe keeping or pledged as collateral
39 security shall not be taxable under this section, and further provided
40 that any corporation having only office furniture or fixtures, a bank
41 balance, and stocks or bonds pledged as collateral security or merely
42 deposited for safe keeping, shall not be taxable under this section.
43 8. The measure of the amount of capital stock in the city of an
44 aviation corporation shall be a portion of the issued capital stock
45 determined by applying thereto the arithmetical average of the following
46 three ratios: (a) the ratio which the aircraft arrivals and departures
47 within the city scheduled by any such corporation during the preceding
48 calendar year bear to the total aircraft arrivals and departures within
49 and without the city scheduled by it during the same period, provided
50 that in the case of non-scheduled operations all arrivals and departures
51 shall be substituted for scheduled arrivals and departures; (b) the
52 ratio which the revenue tons handled by such corporation at airports
53 within the city during the preceding calendar year bear to the total
54 revenue tons handled by it at airports within and without the city
55 during the same period; and (c) the ratio which such corporation's orig-
56 inating revenue within the city for the preceding calendar years bears
S. 8578 750
1 to its total originating revenue within and without the city for the
2 same period. As used in this section, the term "aircraft arrivals and
3 departures" means the number of scheduled landings and takeoffs of the
4 aircraft of an aviation corporation, and the number of scheduled air
5 pickups and deliveries by the aircraft of such corporation, and in the
6 case of non-scheduled operations shall include all landings and
7 takeoffs, pickups and deliveries; the term "originating revenue" means
8 revenue to any such corporation from the transportation of revenue
9 passengers and revenue property first received by such corporation
10 either as originating or connecting traffic at airports; and the term
11 "revenue tons handled" by any such corporation at an airport means the
12 weight in tons of revenue passengers, at two hundred pounds per passen-
13 ger, and revenue cargo first received either as originating or connect-
14 ing traffic or finally discharged by such corporation at such airport.
15 9. The measure of the capital stock in the city of a corporation
16 engaged in the operation of vessels in foreign commerce shall be such
17 portion of the issued capital stock as the aggregate number of working
18 days in territorial waters of the city of all such vessels bears to the
19 aggregate number of working days of all such vessels. The dividend rate
20 for such a corporation shall be determined by dividing the amount paid
21 as a dividend or dividends on all classes of stock during the year by
22 the amount of paid-in capital and, if the rate is six per centum or
23 more, then for taxable years ending on or before December thirty-first,
24 nineteen hundred seventy-four, the rate of one-quarter of a mill for
25 each one per centum of dividends shall be applied to the amount of such
26 paid-in capital, and for taxable years beginning on or after January
27 first, nineteen hundred seventy-five, the rate of four-tenths of a mill
28 for each one per centum of dividends shall be applied to the amount of
29 such paid-in capital.
30 § 11-663 Additional tax on transportation corporations and associ-
31 ations. Every corporation, joint-stock company or association formed
32 for or principally engaged in the conduct of aviation, steamboat, ferry,
33 except a ferry company operating between the city of Staten Island and
34 any of the boroughs of the city of New York under a lease granted by the
35 city of New York, or navigation business or formed for or principally
36 engaged in the conduct of two or more of such businesses, except a
37 corporation, joint-stock company or association subject to taxation
38 under chapter eleven of this title, shall pay for the privilege of
39 carrying on its business in the city, a tax which shall be equal to
40 five-tenths of one per centum for taxable years ending on or before
41 December thirty-first, nineteen hundred seventy-four, and seventy-five
42 hundredths of one per centum for taxable years beginning on or after
43 January first, nineteen hundred seventy-five upon its gross earnings
44 from all sources within the city, excluding earnings derived from busi-
45 ness of a character other than wholly intra-city. Provided, however,
46 gross earnings from transportation business both originating and termi-
47 nating within the city and traversing both the city and any other city,
48 any state or states or any country shall be subject to the tax imposed
49 by this section and such earnings shall be allocated to the city in the
50 same ratio that the mileage within the city bears to the total mileage
51 of such business.
52 § 11-664 Receivers, etc., conducting corporate business. Any receiv-
53 er, liquidator, referee, trustee, assignee, or other fiduciary or offi-
54 cer or agent appointed by any court, who conducts the business of any
55 corporation, joint-stock company or association shall be subject to the
56 tax or taxes imposed by this subchapter in the same manner and to the
S. 8578 751
1 same extent as if the business were conducted by the agents or officers
2 of such corporation, joint-stock company or association. A dissolved
3 corporation, joint-stock company or association which continues to
4 conduct business shall also be subjected to the tax imposed by this
5 subchapter.
6 § 11-665 Service of process; limitation of time. 1. Every foreign
7 corporation, other than a moneyed corporation, subject to the provisions
8 of this subchapter, except a corporation having authority to do business
9 by virtue of section thirteen hundred five of the business corporation
10 law, shall file in the department of state a certificate of designation
11 in its corporate name, signed and acknowledged by its president or vice-
12 president or its secretary or treasurer, under its corporate seal,
13 designating the secretary of state as its agent upon whom process in any
14 action provided for by this subchapter or subchapter five of this chap-
15 ter may be served within this state, and setting forth an address to
16 which the secretary of state shall mail a copy of any such process
17 against the corporation which may be served upon the secretary of state.
18 In case any such corporation shall have failed to file such certificate
19 of designation, it shall be deemed to have designated the secretary of
20 state as its agent upon whom such process against it may be served; and
21 until a certificate of designation shall have been filed the corporation
22 shall be deemed to have directed the secretary of state to mail copies
23 of process served upon the secretary of state to the corporation at its
24 last known office address within or without the state. When a certif-
25 icate of designation has been filed by such corporation the secretary of
26 state shall mail copies of process thereafter served upon the secretary
27 of state to the address set forth in such certificate. Any such corpo-
28 ration, from time to time, may change the address to which the secretary
29 of state is directed to mail copies of process, by filing a certificate
30 to that effect executed, signed and acknowledged in like manner as a
31 certificate of designation as herein provided. Service of process upon
32 any such corporation or upon any corporation having authority to do
33 business by virtue of section thirteen hundred five of the business
34 corporation law, in any action commenced at any time pursuant to the
35 provisions of this subchapter or subchapter five of this chapter may be
36 made by either: (1) personally delivering to and leaving with the secre-
37 tary of state, a deputy secretary of state or with any person authorized
38 by the secretary of state to receive such service duplicate copies ther-
39 eof at the office of the department of state in the city of Albany, in
40 which event the secretary of state shall forthwith send by registered
41 mail, return receipt requested, one of such copies to the corporation at
42 the address designated by it or at its last known office address within
43 or without the state, or (2) personally delivering to and leaving with
44 the secretary of state, a deputy secretary of state or with any person
45 authorized by the secretary of state to receive such service, a copy
46 thereof at the office of the department of state in the city of Albany
47 and by delivering a copy hereof to, and leaving such copy with, the
48 president, vice-president, secretary, assistant secretary, treasurer,
49 assistant treasurer, or cashier of such corporation, or the officer
50 performing corresponding functions under another name, or a director or
51 managing agent of such corporation, personally without the state. Proof
52 of such personal service without the state shall be filed with the clerk
53 of the court in which the action is pending within thirty days after
54 such service, and such service shall be complete ten days after proof
55 thereof is filed.
S. 8578 752
1 2. The provisions of the civil practice law and rules relative to the
2 limitation of time of enforcing a civil remedy shall not apply to any
3 proceeding or action taken to levy, appraise, assess, determine or
4 enforce the collection of any tax or penalty prescribed by this subchap-
5 ter or subchapter five of this chapter, provided, however, that as to
6 real estate in the hands of persons who are owners thereof who would be
7 purchasers in good faith but for such tax or penalty and as to the lien
8 on real estate of mortgages held by persons who would be holders thereof
9 in good faith but for such tax or penalty, all such taxes and penalties
10 shall cease to be a lien on such real estate as against such purchasers
11 or holders after the expiration of ten years from the date such taxes
12 become due and payable. The limitations provided for in this subdivi-
13 sion shall not apply to any transfer from a corporation to a person or
14 corporation with intent to avoid payment of any taxes, or where with
15 like intent the transfer is made to a grantee corporation, or any subse-
16 quent grantee corporation controlled by such grantor or which has any
17 community of interest with it, either through stock ownership or other-
18 wise.
19 § 11-666 Exemption of corporations owned by a municipality. The
20 provisions of this subchapter shall not apply to any corporation all of
21 the capital stock of which is owned by a municipal corporation of this
22 state.
23 § 11-667 Reports of corporations. Corporations liable to pay a tax
24 under this subchapter shall report as follows:
25 1. Every corporation, association or joint-stock company liable to pay
26 a tax under section 11-662 of this subchapter shall, on or before March
27 first in each year, make a written report to the commissioner of finance
28 of its condition at the close of its business on the preceding December
29 thirty-first, stating the amount of its authorized capital stock, the
30 amount of stock paid-in, the date and rate per centum of each dividend
31 paid by it during the year ending with such day, the entire amount of
32 the capital of such corporation, and the capital employed by it in the
33 city during such year.
34 2. Every corporation, joint-stock company or association liable to pay
35 an additional tax under section 11-663 of this subchapter shall also, on
36 or before February fifteenth, May fifteenth, August fifteenth and Novem-
37 ber fifteenth in each year, make a written report to the commissioner of
38 finance of the amount of its gross earnings subject to the tax imposed
39 by said section for the quarter year ended on the last day of the second
40 month preceding that in which the report is required to be filed. Any
41 such corporation, joint-stock company or association which ceases to be
42 subject to the tax imposed by section 11-663 of this subchapter by
43 reason of a liquidation, dissolution, merger or consolidation with any
44 other corporation, or any other cause, shall, on the date of such cessa-
45 tion or at such other time as the commissioner of finance may require,
46 make a written report to the commissioner of finance of the amount of
47 its gross earnings subject to the tax imposed by section 11-663 of this
48 subchapter for any period for which no report was therefor filed.
49 3. The commissioner of finance may for good cause shown extend the
50 time within which any corporation is required to report by this subchap-
51 ter.
52 4. Every report required by this subchapter shall have annexed thereto
53 a certification by the president, vice-president, treasurer, assistant
54 treasurer, or chief accounting officer or any other officer of the
55 corporation, association or joint-stock company duly authorized so to
56 act, or of the person or one of the persons, or the members of the part-
S. 8578 753
1 nership making the same, to the effect that the statements contained
2 therein are true. The fact that an individual's name is signed on a
3 certification attached to a corporate report shall be prima facie
4 evidence that such individual is authorized to certify the report on
5 behalf of the corporation. Such reports shall contain any other data,
6 information or matter which the commissioner of finance may require to
7 be included therein, and it may prescribe the form in which such reports
8 shall be made. When so prescribed such forms shall be used in making
9 the report. The commissioner of finance may require at any time a
10 further or supplemental report under this subchapter which shall contain
11 information and data upon such matters as the commissioner of finance
12 may specify. Reports shall be preserved for five years, and thereafter
13 until the commissioner of finance orders them to be destroyed.
14 § 11-668 Payment of tax and penalties. 1. The taxes imposed by
15 sections 11-662 and 11-663 of this subchapter shall be due and payable
16 at the time of the filing of the report required by section 11-667 of
17 this subchapter or, in case such a report is not filed when due, on the
18 last day specified for the filing thereof, except that the tax upon
19 dividends imposed by section 11-663 of this subchapter shall be due and
20 payable at the time of filing the report for the period ending June
21 thirtieth, or, in case such report is not filed when due, on the last
22 day specified for the filing thereof.
23 2. Where an application for consent to dissolution, as provided by
24 section one thousand four of the business corporation law, is filed with
25 the commissioner of finance prior to the commencement of any tax year or
26 period by a corporation subject to tax under this subchapter, such
27 corporation shall not be liable for any tax imposed by this subchapter
28 for such following year or period, except as may be otherwise provided
29 in section 11-664 of this subchapter, provided that the certificate of
30 dissolution for such corporation is duly filed in the office of the
31 secretary of state within twenty days after the filing of such applica-
32 tion.
33 3. Notwithstanding any other provision of this subchapter, the commis-
34 sioner of finance may grant a reasonable extension of time for payment
35 of any tax imposed by this subchapter under such conditions as the
36 commissioner deems just and proper.
37 § 11-669 Taxable years to which taxes apply. The taxes imposed by
38 this subchapter are imposed for each taxable year or period beginning
39 with taxable years or periods ending in or with the calendar year nine-
40 teen hundred sixty-six, provided, however, no tax shall be imposed
41 pursuant to this subchapter for any taxable year or period ending after
42 December thirty-first, nineteen hundred eighty-eight.
43 § 11-670 First reports for payments for nineteen hundred sixty-six.
44 If any report under this subchapter is due prior to September eleventh,
45 nineteen hundred sixty-six, such report and the payments therewith shall
46 be filed and paid by such date.
47 SUBCHAPTER 5
48 CORPORATE TAX PROCEDURE AND ADMINISTRATION
49 § 11-671 Application of subchapter. 1. General. The provisions of
50 this subchapter shall apply to the administration of and the procedures
51 with respect to the taxes imposed by subchapters two, three, three-A and
52 four of this chapter.
S. 8578 754
1 2. Definitions. As used in this subchapter: (a) the term "named
2 subchapters" means subchapters two, three, three-A and four of this
3 chapter;
4 (b) The term "return" means a report or return of tax, but does not
5 include a declaration of estimated tax;
6 (c) The term "corporation" includes a corporation, association, joint-
7 stock company or other entity subject to tax under any of the named
8 subchapters; and
9 (d) The term "person" includes a corporation, association, company,
10 partnership, estate, trust, liquidator, fiduciary or other entity or
11 individual liable for the tax imposed by any of the named subchapters or
12 under a duty to perform an act under any of the named subchapters. Upon
13 notice to the commissioner of finance that any person is acting for any
14 corporation in a fiduciary capacity, such fiduciary shall assume the
15 powers, rights, duties and privileges of such corporation in respect of
16 a tax imposed by any of the named subchapters, except as otherwise
17 specifically provided and except that the tax shall be collected from
18 the estate or other assets of such corporation in the hands of such
19 fiduciary, until notice is given that the fiduciary capacity has termi-
20 nated.
21 § 11-672 Notice of deficiency. 1. General. If upon examination of a
22 taxpayer's return, the commissioner of finance determines that there is
23 a deficiency of tax, the commissioner may mail a notice of deficiency to
24 the taxpayer. If a taxpayer fails to file a tax return, the commissioner
25 of finance is authorized to estimate the taxpayer's city tax liability
26 from any information in the commissioner's possession, and to mail a
27 notice of deficiency to the taxpayer. A notice of deficiency shall be
28 mailed by certified or registered mail to the taxpayer, at its last
29 known address in or out of the city. If the taxpayer has terminated its
30 existence, a notice of deficiency may be mailed to its last known
31 address in or out of the city, and such notice shall be sufficient for
32 purposes of this subchapter. If the commissioner of finance has received
33 notice that a person is acting for the taxpayer in a fiduciary capacity,
34 a copy of such notice shall also be mailed to the fiduciary named in
35 such notice.
36 2. Notice of deficiency as assessment. After ninety days from the
37 mailing of a notice of deficiency or, if the commissioner of finance has
38 established a conciliation procedure pursuant to section 11-124 of this
39 title and the taxpayer has requested a conciliation conference in
40 accordance therewith, after ninety days from the mailing of the concil-
41 iation decision or the date of the commissioner's confirmation of the
42 discontinuance of the conciliation proceeding, such notice shall be an
43 assessment of the amount of tax specified therein, together with the
44 interest, additions to tax and penalties stated in such notice, except
45 only for any such tax or other amounts as to which the taxpayer has
46 within such ninety day period filed with the tax appeals tribunal a
47 petition under section 11-680 of this subchapter. If the notice of defi-
48 ciency or conciliation decision is addressed to a taxpayer whose last
49 known address is outside of the United States, such period shall be one
50 hundred fifty days instead of ninety days.
51 3. Restrictions on assessment and levy. No assessment of a deficiency
52 in tax and no levy or proceeding in court for its collection shall be
53 made, begun or prosecuted, except as otherwise provided in section
54 11-685 of this subchapter, until a notice of deficiency has been mailed
55 to the taxpayer, nor until the expiration of the time for filing a peti-
56 tion with the tax appeals tribunal contesting such notice, nor, if a
S. 8578 755
1 petition with respect to the taxable year has been both served on the
2 commissioner of finance and filed with the tax appeals tribunal, until
3 the decision of the tax appeals tribunal has become final. For excep-
4 tion in the case of judicial review of the decision of the tax appeals
5 tribunal, see subdivision three of section 11-681 of this subchapter.
6 4. Exceptions for mathematical errors. If a mathematical error appears
7 on a return, including an overstatement of the amount paid as estimated
8 tax, the commissioner of finance shall notify the taxpayer that an
9 amount of tax in excess of that shown upon the return is due, and that
10 such excess has been assessed. Such notice shall not be considered as a
11 notice of deficiency for the purposes of this section, subdivision six
12 of section 11-678, limiting credits or refunds after petition to the tax
13 appeals tribunal, or subdivision two of section 11-680 of this subchap-
14 ter, authorizing the filing of a petition with the tax appeals tribunal
15 based on a notice of deficiency, nor shall such assessment or collection
16 be prohibited by the provisions of subdivision three of this section.
17 5. Exception where federal or New York state change or correction is
18 not reported.
19 (a) If the taxpayer fails to comply with subchapter two, three or
20 three-A of this chapter in not reporting a change or correction or rene-
21 gotiation, or computation or recomputation of tax, increasing or
22 decreasing its federal or New York state taxable income, alternative
23 minimum taxable income or other basis of tax as reported on its federal
24 or New York state income tax return or in not reporting a change or
25 correction or renegotiation, or computation or recomputation of tax,
26 which is treated in the same manner as if it were a deficiency for
27 federal or New York state income tax purposes or in not filing an
28 amended return or in not reporting the execution of a notice of waiver
29 executed pursuant to subsection (d) of section six thousand two hundred
30 thirteen of the internal revenue code or pursuant to subdivision (f) of
31 section one thousand eighty-one of the tax law, instead of the mode and
32 time of assessment provided for in subdivision two of this section, the
33 commissioner of finance may assess a deficiency based upon such
34 increased or decreased federal or New York state taxable income, alter-
35 native minimum taxable income or other basis of tax by mailing to the
36 taxpayer a notice of additional tax due specifying the amount of the
37 deficiency, and such deficiency, together with the interest, additions
38 to tax and penalties stated in such notice, shall be deemed assessed on
39 the date such notice is mailed unless within thirty days after the mail-
40 ing of such notice a report of the federal or New York state change or
41 correction or renegotiation, or computation or recomputation of tax, or
42 an amended return, where such return was required by subchapter two or
43 three of this chapter, is filed accompanied by a statement showing wher-
44 ein such federal or New York state determination and such notice of
45 additional tax due are erroneous.
46 (b) Such notice shall not be considered as a notice of deficiency for
47 the purposes of this section, subdivision six of section 11-678, limit-
48 ing credits or refunds after petition to the tax appeals tribunal, or
49 subdivision two of section 11-680 of this subchapter, authorizing the
50 filing of a petition with the tax appeals tribunal based on a notice of
51 deficiency, nor shall such assessment or the collection thereof be
52 prohibited by the provisions of subdivision three of this section.
53 (c) If the taxpayer has terminated its existence, a notice of addi-
54 tional tax due may be mailed to the taxpayer's last known address in or
55 out of the city, and such notice shall be sufficient for purposes of
56 this subchapter. If the commissioner of finance has received notice that
S. 8578 756
1 a person is acting for the taxpayer in a fiduciary capacity, a copy of
2 such notice shall also be mailed to the fiduciary named in such notice.
3 6. Waiver of restrictions. The taxpayer shall at any time, whether or
4 not a notice of deficiency has been issued, have the right to waive the
5 restrictions on assessment and collection of the whole or any part of
6 the deficiency by a signed notice in writing filed with the commissioner
7 of finance.
8 7. Two or more corporations. In case of a combined return under
9 subchapter two or three-A or a consolidated return under subchapter
10 three of two or more corporations, the commissioner of finance may
11 determine a deficiency of tax under subchapter two, three or three-A of
12 this chapter with respect to the entire tax due upon such return against
13 any taxpayer included therein. In the case of a taxpayer which might
14 have been included in such a return under subchapter two, three or
15 three-A of this chapter when the tax was originally reported, the
16 commissioner of finance may determine a deficiency of tax under subchap-
17 ter two, three or three-A of this chapter against such taxpayer and
18 against any other taxpayers which might have been included in such a
19 return.
20 8. Deficiency defined. For the purposes of this subchapter, a defi-
21 ciency means the amount of the tax imposed by the named subchapters, or
22 any of them, less: (a) the amount shown as the tax upon the taxpayer's
23 return, whether the return was made or the tax computed by it or by the
24 commissioner of finance, and less (b) the amounts previously assessed,
25 or collected without assessment, as a deficiency and plus (c) the amount
26 of any rebates. For the purpose or this definition, the tax imposed by
27 subchapter two, three or three-A of this chapter and the tax shown on
28 the return shall both be determined without regard to any payment of
29 estimated tax; and a rebate means so much of an abatement, credit,
30 refund or other repayment, whether or not erroneous, as was made on the
31 ground that the amounts entering into the definition of a deficiency
32 showed a balance in favor of the taxpayer.
33 9. Exception where change or correction of sales and compensating use
34 tax liability is not reported.
35 (a) If a taxpayer fails to comply with subchapter two or three-A of
36 this chapter in not reporting a change or correction of its sales and
37 compensating use tax liability or in not filing a copy of an amended
38 return or report relating to its sales and compensating use tax liabil-
39 ity, instead of the mode and time of assessment provided for in subdivi-
40 sion two of this section, the commissioner of finance may assess a defi-
41 ciency based upon such changed or corrected sales and compensating use
42 tax liability, as same relates to credits claimed under subchapter two
43 or three-A of this chapter, by mailing to the taxpayer a notice of addi-
44 tional tax due specifying the amount of the deficiency, and such defi-
45 ciency, together with the interest, additions to tax and penalties stat-
46 ed in such notice, shall be deemed assessed on the date such notice is
47 mailed unless within thirty days after the mailing of such notice a
48 report of the state change or correction or a copy of an amended return
49 or report, where such copy was required by subchapter two or three-A, is
50 filed accompanied by a statement showing wherein such state determi-
51 nation and such notice of additional tax due are erroneous.
52 (b) Such notice shall not be considered as a notice of deficiency for
53 the purposes of this section, subdivision six of section 11-678, limit-
54 ing credits or refunds after petition to the tax appeals tribunal, or
55 subdivision two of section 11-680, authorizing the filing of a petition
56 with the tax appeals tribunal based on a notice of deficiency, nor shall
S. 8578 757
1 such assessment or the collection thereof be prohibited by the
2 provisions of subdivision three of this section.
3 (c) If the taxpayer has terminated its existence, a notice of addi-
4 tional tax due may be mailed to its last known address in or out of the
5 city, and such notice shall be sufficient for purposes of this subchap-
6 ter. If the commissioner of finance has received notice that a person is
7 acting for the taxpayer in a fiduciary capacity, a copy of such notice
8 shall also be mailed to the fiduciary named in such notice.
9 § 11-673 Assessment. 1. Assessment date. The amount of tax which a
10 return shows to be due, or the amount of tax which a return would have
11 shown to be due but for a mathematical error, shall be deemed to be
12 assessed on the date of filing of the return, including any amended
13 return showing an increase of tax. If a notice of deficiency has been
14 mailed, the amount of the deficiency shall be deemed to be assessed on
15 the date specified in subdivision two of section 11-672 of this subchap-
16 ter if no petition is both served on the commissioner of finance and
17 filed with the tax appeals tribunal, or if a petition is so served and
18 filed, then upon the date when a decision of the tax appeals tribunal
19 establishing the amount of the deficiency becomes final. If a report or
20 an amended return filed pursuant to subchapter two, three or three-A of
21 this chapter concedes the accuracy of a federal or New York state
22 adjustment or change or correction or renegotiation or computation or
23 recomputation of tax, any deficiency in tax under subchapter two, three
24 or three-A of this chapter resulting therefrom shall be deemed to be
25 assessed on the date of filing such report or amended return, and such
26 assessment shall be timely notwithstanding section 11-674 of this
27 subchapter.
28 If a report filed pursuant to subchapter two of this chapter concedes
29 the accuracy of a state change or correction of sales and compensating
30 use tax liability, any deficiency in tax under subchapter two or three-A
31 of this chapter resulting therefrom shall be deemed assessed on the date
32 of filing such report, and such assessment shall be timely notwithstand-
33 ing section 11-674 of this subchapter.
34 If a notice of additional tax due, as prescribed in subdivision five
35 of section 11-672 of this subchapter, has been mailed, the amount of the
36 deficiency shall be deemed to be assessed on the date specified in such
37 subdivision unless within thirty days after the mailing of such notice a
38 report of the federal or New York state adjustment or change or
39 correction or renegotiation or computation or recomputation of tax, or
40 an amended return, where such return was required by subchapter two,
41 three or three-A of this chapter, is filed accompanied by a statement
42 showing wherein such federal or New York state determination and such
43 notice of additional tax due are erroneous.
44 If a notice of additional tax due, as prescribed in subdivision nine
45 of section 11-672 of this subchapter, has been mailed, the amount of the
46 deficiency shall be deemed to be assessed on the date specified in such
47 subdivision unless within thirty days after the mailing of such notice a
48 report of the state change or correction, or a copy of an amended return
49 or report, where such copy was required by subchapter two or three-A of
50 this chapter, is filed accompanied by a statement showing wherein such
51 state determination and such notice of additional tax due are erroneous.
52 Any amount paid as a tax or in respect of a tax, other than amounts
53 paid as estimated tax, shall be deemed to be assessed upon the date of
54 receipt of payment notwithstanding any other provisions.
55 2. Other assessment powers. If the mode or time for the assessment of
56 any tax under the named subchapters, including interest, additions to
S. 8578 758
1 tax and assessable penalties, is not otherwise provided for, the commis-
2 sioner of finance may establish the same by regulations.
3 3. Estimated tax. No unpaid amount of estimated tax under subchapter
4 two, three or three-A of this chapter shall be assessed.
5 4. Supplemental assessment. The commissioner of finance may, at any
6 time within the period described for assessment, make a supplemental
7 assessment, subject to the provisions of section 11-672 of this subchap-
8 ter where applicable, whenever it is ascertained that any assessment is
9 imperfect or incomplete in any material respect.
10 5. Cross reference. For assessment in case of jeopardy, see section
11 11-685 of this subchapter.
12 § 11-674 Limitations on assessment. 1. General. Except as otherwise
13 provided in this section, any tax under the named subchapters shall be
14 assessed within three years after the return was filed, whether or not
15 such return was filed on or after the date prescribed.
16 2. Time return deemed filed. For the purposes of this section, a
17 return of tax filed before the last day prescribed by law or by regu-
18 lations promulgated pursuant to law for the filing thereof shall be
19 deemed to be filed on such last day.
20 3. Exceptions.
21 (a) Assessment at any time. The tax may be assessed at any time if:
22 (1) no return is filed,
23 (2) a false or fraudulent return is filed with intent to evade tax,
24 (3) in the case of the tax imposed under subchapter two, three or
25 three-A of this chapter, the taxpayer fails to file a report or amended
26 return required thereunder, in respect of an increase or decrease in
27 federal or New York state taxable income, alternative minimum taxable
28 income or other basis of tax or federal or New York state tax, or in
29 respect of a change or correction or renegotiation or in respect of the
30 execution of a notice of waiver report of which is required thereunder,
31 or computation or recomputation of tax, which is treated in the same
32 manner as if it were a deficiency for federal or New York state income
33 tax purposes, or
34 (4) in the case of the tax imposed under subchapter two or three-A of
35 this chapter, the taxpayer fails to file a report or amended return or
36 report required thereunder, in respect of a change or correction of
37 sales and compensating use tax liability, relating to the purchase or
38 use of items for which a sales or compensating use tax credit against
39 the tax imposed by subchapter two or three-A was claimed.
40 (b) Extension by agreement. Where, before the expiration of the time
41 prescribed in this section for the assessment of tax, both the commis-
42 sioner of finance and the taxpayer have consented in writing to its
43 assessment after such time, the tax may be assessed at any time prior to
44 the expiration of the period agreed upon. The period so agreed upon may
45 be extended by subsequent agreements in writing made before the expira-
46 tion of the period previously agreed upon.
47 (c) Report of federal or New York state change or correction. In the
48 case of the tax imposed under subchapter two, three or three-A of this
49 chapter, if the taxpayer files a report or amended return required ther-
50 eunder, in respect of an increase or decrease in federal or New York
51 state taxable income, alternative minimum taxable income or other basis
52 of tax or federal or New York state tax, or in respect of a change or
53 correction or renegotiation, or in respect of the execution of a notice
54 of waiver report of which is required thereunder, or computation or
55 recomputation of tax, which is treated in the same manner as if it were
56 a deficiency for federal or New York state income tax purposes, the
S. 8578 759
1 assessment, if not deemed to have been made upon the filing of the
2 report or amended return may be made at any time within two years after
3 such report or amended return was filed. The amount of such assessment
4 of tax shall not exceed the amount of the increase in city tax attribut-
5 able to such federal or New York state change or correction or renegoti-
6 ation, or computation or recomputation of tax. The provisions of this
7 paragraph shall not affect the time within which or the amount for which
8 an assessment may otherwise be made.
9 (d) Deficiency attributable to net operating loss carryback. If a
10 deficiency of tax under subchapter two or three-A of this chapter is
11 attributable to the application to taxpayer of a net operating loss
12 carryback or a capital loss carryback, it may be assessed at any time
13 that a deficiency for the taxable year of the loss may be assessed.
14 (e) Recovery of erroneous refund. An erroneous refund shall be
15 considered an underpayment of tax on the date made, and an assessment of
16 a deficiency arising out of an erroneous refund may be made at any time
17 within two years from the making of the refund, except that the assess-
18 ment may be made within five years from the making of the refund if it
19 appears that any part of the refund was induced by fraud or misrepresen-
20 tation of a material fact.
21 (f) Request for prompt assessment. The tax shall be assessed within
22 eighteen months after written request therefor, made after the return is
23 filed, by the taxpayer or by a fiduciary representing the taxpayer, but
24 not more than three years after the return was filed, except as other-
25 wise provided in this subdivision and subdivision four of this section.
26 This subdivision shall not apply unless:
27 (1) (A) such written request notifies the commissioner of finance that
28 the taxpayer contemplates dissolution at or before the expiration of
29 such eighteen-month period, (B) the dissolution is in good faith begun
30 before the expiration of such eighteen-month period, (C) the dissolution
31 is completed;
32 (2) (A) such written request notifies the commissioner of finance that
33 a dissolution has in good faith been begun, and (B) the dissolution is
34 completed; or
35 (3) a dissolution has been completed at the time such written request
36 is made.
37 (g) Change of the allocation of taxpayer's income or capital. (1)
38 With regard to taxable years beginning before January first, two thou-
39 sand fifteen, no change of the allocation of income or capital upon
40 which the taxpayer's return, or any additional assessment, was based
41 shall be made where an assessment of tax is made during the additional
42 period of limitation under subparagraph three or four of paragraph (a)
43 of this subdivision, or under paragraph (c), (d) or (i) of this subdivi-
44 sion; and where any such assessment has been made, or where a notice of
45 deficiency has been mailed to the taxpayer on the basis of any such
46 proposed assessment, no change of the allocation of income or capital
47 shall be made in a proceeding on the taxpayer's claim for refund of such
48 assessment or on the taxpayer's petition for redetermination of such
49 deficiency.
50 (2) With regard to taxable years beginning on or after January first,
51 two thousand fifteen, no change of the allocation of income or capital
52 upon which the taxpayer's return, or any additional assessment, was
53 based shall be made where an assessment of tax is made during the addi-
54 tional period of limitation under subparagraph three or four of para-
55 graph (a) or under paragraph (c), (d) or (i) of this subdivision, except
56 to the extent such assessment is based on an increase or decrease in New
S. 8578 760
1 York state taxable income or other basis of tax or New York state tax,
2 or based on a change, correction or renegotiation of tax, or based on
3 the execution of a notice of waiver report which is required there-
4 under, or computation or recomputation of tax, which is treated in the
5 same manner as if it were a deficiency for New York state income tax
6 purposes; and where any such assessment has been made, or where a notice
7 of deficiency has been mailed to the taxpayer on the basis of any such
8 proposed assessment, no change of the allocation of income or capital
9 shall be made in a proceeding on the taxpayer's claim for refund of
10 such assessment or on the taxpayer's petition for redetermination of
11 such deficiency, except to the extent such assessment is based on an
12 increase or decrease in New York state taxable income or other basis of
13 tax or New York state tax, or based on a change or correction or renego-
14 tiation of tax, or based on the execution of a notice of waiver report
15 which is required thereunder, or computation or recomputation of tax,
16 which is treated in the same manner as if it were an overpayment for New
17 York state income tax purposes.
18 (h) Report concerning waste treatment facility. Under the circum-
19 stances described in subparagraph three of paragraph (g) of subdivision
20 eight of section 11-602 of this chapter or in subparagraph three of
21 paragraph (g) of subdivision eight of section 11-652 of this chapter,
22 the tax may be assessed within three years after the filing of the
23 report containing the information required by such paragraph.
24 (i) Report of changed or corrected sales and compensating use tax
25 liability. In the case of a tax imposed under subchapter two or three-A
26 of this chapter, if the taxpayer files a report or amended return or
27 report required thereunder, in respect of a change or correction of
28 sales and compensating use tax liability, the assessment, if not deemed
29 to have been made upon the filing of the report, may be made at any time
30 within two years after such report or amended return or report was
31 filed. The amount of such assessment of tax shall not exceed the amount
32 of the increase in city tax attributable to such state change or
33 correction. The provisions of this paragraph shall not affect the time
34 within which or the amount for which an assessment may otherwise be
35 made.
36 4. Omission of income on return. The tax may be assessed at any time
37 within six years after the return was filed if a taxpayer omits from
38 gross income required to be reported on a return under any of the named
39 subchapters an amount properly includable therein which is in excess of
40 twenty-five per centum of the amount of gross income stated in the
41 return.
42 For the purposes of this subdivision:
43 (a) the term "gross income" means gross income for federal income tax
44 purposes as reportable on a return under subchapter two or three-A of
45 this chapter and "gross earnings", "gross income," "gross operating
46 income" and "gross direct premiums less return premiums," as those terms
47 are used in whichever of the named subchapters is applicable;
48 (b) there shall not be taken into account any amount which is omitted
49 in the return if such amount is disclosed in the return, or in a state-
50 ment attached to the return, in a manner adequate to apprise the commis-
51 sioner of finance of the nature and amount of such item.
52 5. Suspension of running of period of limitations. The running of the
53 period of limitations on assessment or collection of tax or other
54 amount, or of a tranferee's liability, shall, after the mailing of a
55 notice of deficiency, be suspended for the period during which the
56 commissioner of finance is prohibited under subdivision three of section
S. 8578 761
1 11-672 of this subchapter from making the assessment or from collecting
2 by levy.
3 § 11-675 Interest on underpayment. 1. General. If any amount of tax
4 is not paid on or before the last date prescribed in whichever of the
5 named subchapters is applicable for payment, interest on such amount at
6 the underpayment rate set by the commissioner of finance pursuant to
7 section 11-687 of this subchapter, or, if no rate is set, at the rate of
8 seven and one-half percent per annum shall be paid for the period from
9 such last date to the date paid, whether or not any extension of time
10 for payment was granted. Interest under this subdivision shall not be
11 paid if the amount thereof is less than one dollar.
12 2. Exception as to estimated tax. This section shall not apply to any
13 failure to pay estimated tax under subchapter two, three or three-A of
14 this chapter.
15 3. Exception for mathematical error. No interest shall be imposed on
16 any underpayment of tax due solely to mathematical error if the taxpayer
17 files a return within the time prescribed in whichever of the named
18 subchapters is applicable, including any extension of time, and pays the
19 amount of underpayment within three months after the due date of such
20 return, as it may be extended.
21 4. Suspension of interest on deficiencies. If a waiver of
22 restrictions on assessment of a deficiency has been filed by the taxpay-
23 er, and if notice and demand by the commissioner of finance for payment
24 of such deficiency is not made within thirty days after the filing of
25 such waiver, interest shall not be imposed on such deficiency for the
26 period beginning immediately after such thirtieth day and ending with
27 the date of notice and demand.
28 5. Tax reduced by carryback. If the amount of tax under subchapter
29 two or three-A for any taxable year is reduced by reason of a carryback
30 of a net operating loss or a capital loss, such reduction in tax shall
31 not affect the computation of interest under this section for the period
32 ending with the filing date for the taxable year in which the net oper-
33 ating loss or capital loss arises. Such filing date shall be determined
34 without regard to extensions of time to file.
35 6. Interest treated as tax. Interest under this section shall be paid
36 upon notice and demand and shall be assessed, collected and paid in the
37 same manner as the taxes under the named subchapters. Any reference in
38 this subchapter to the tax imposed by the named subchapters, or any of
39 them, shall be deemed also to refer to interest imposed by this section
40 on such tax.
41 7. Interest on penalties or addition to tax. Interest shall be
42 imposed under subdivision one in respect to any assessable penalty or
43 addition to tax only if such assessable penalty or addition to tax is
44 not paid within ten days from the date of the notice and demand therefor
45 under subdivision two of section 11-683 of this subchapter in such case
46 interest shall be imposed only for the period from such date of the
47 notice and demand to the date of payment.
48 8. Payment within ten days after notice and demand. If notice and
49 demand is made for payment of any amount under subdivision two of
50 section 11-683 of this subchapter, and if such amount is paid within ten
51 days after the date of such notice and demand, interest under this
52 section on the amount so paid shall not be imposed for the period after
53 the date of such notice and demand.
54 9. Limitation on assessment and collection. Interest prescribed under
55 this section may be assessed and collected at any time during the period
S. 8578 762
1 within which the tax or other amount to which such interest relates may
2 be assessed and collected respectively.
3 10. Interest on erroneous refund. Any portion of tax or other amount
4 which has been erroneously refunded, and which is recoverable by the
5 commissioner of finance, shall bear interest at the underpayment rate
6 set by the commissioner of finance pursuant to section 11-687 of this
7 subchapter, or, if no rate is set, at the rate of seven and one-half
8 percent per annum from the date of the payment of the refund, but only
9 if it appears that any part of the refund was induced by fraud or a
10 misrepresentation of a material fact.
11 11. Satisfaction by credits. If any portion of a tax is satisfied by
12 credit of an overpayment, then no interest shall be imposed under this
13 section on the portion of the tax so satisfied for any period during
14 which, if the credit had not been made, interest would have been allow-
15 able with respect to such overpayment.
16 § 11-676 Additions to tax and civil penalties. 1. (a) Failure to file
17 return. (A) In case of failure to file a return under the named
18 subchapters on or before the prescribed date, determined with regard to
19 any extension of time for filing, unless it is shown that such failure
20 is due to reasonable cause and not due to willful neglect, there shall
21 be added to the amount required to be shown as tax on such return five
22 percent of the amount of such tax if the failure is for not more than
23 one month, with an additional five percent for each additional month or
24 fraction thereof during which such failure continues, not exceeding
25 twenty-five percent in the aggregate.
26 (B) In the case of a failure to file a return of tax within sixty days
27 of the date prescribed for filing of such return, determined with regard
28 to any extension of time for filing, unless it is shown that such fail-
29 ure is due to reasonable cause and not due to willful neglect, the addi-
30 tion to tax under subparagraph (A) of this paragraph shall not be less
31 than the lesser of one hundred dollars or one hundred percent of the
32 amount required to be shown as tax on such return.
33 (C) For purposes of this paragraph, the amount of tax required to be
34 shown on the return shall be reduced by the amount of any part of the
35 tax which is paid on or before the date prescribed for payment of the
36 tax and by the amount of any credit against the tax which may be claimed
37 upon the return.
38 (b) Failure to pay tax shown on return. In case of failure to pay the
39 amounts shown as tax on any return required to be filed under the named
40 subchapters on or before the prescribed date, determined with regard to
41 any extension of time for payment, unless it is shown that such failure
42 is due to reasonable cause and not due to willful neglect, there shall
43 be added to the amount shown as tax on such return one-half of one
44 percent of the amount of such tax if the failure is not for more than
45 one month, with an additional one-half of one percent for each addi-
46 tional month or fraction thereof during which such failure continues,
47 not exceeding twenty-five percent in the aggregate. For the purpose of
48 computing the addition for any month the amount of tax shown on the
49 return shall be reduced by the amount of any part of the tax which is
50 paid on or before the beginning of such month and by the amount of any
51 credit against the tax which may be claimed upon the return. If the
52 amount of tax required to be shown on a return is less than the amount
53 shown as tax on such return, this paragraph shall be applied by substi-
54 tuting such lower amount.
55 (c) Failure to pay tax required to be shown on return. In case of
56 failure to pay any amount in respect of any tax required to be shown on
S. 8578 763
1 a return required to be filed under the named subchapters which is not
2 so shown, including an assessment made pursuant to subdivision one of
3 section 11-673 of this subchapter, within ten days of the date of a
4 notice and demand therefor, unless it is shown that such failure is due
5 to reasonable cause and not due to willful neglect, there shall be added
6 to the amount of tax stated in such notice and demand one-half of one
7 percent of such tax if the failure is not for more than one month, with
8 an additional one-half of one percent for each additional month or frac-
9 tion thereof during which such failure continues, not exceeding twenty-
10 five percent in the aggregate. For the purpose of computing the addition
11 for any month, the amount of tax stated in the notice and demand shall
12 be reduced by the amount of any part of the tax which is paid before the
13 beginning of such month.
14 (d) Limitations on additions.
15 (A) With respect to any return, the amount of the addition under para-
16 graph (a) of this subdivision shall be reduced by the amount of the
17 addition under paragraph (b) of this subdivision for any month to which
18 an addition applies under both paragraphs (a) and (b). In any case
19 described in subparagraph (B) of paragraph (a) of this subdivision, the
20 amount of the addition under such paragraph (a) shall not be reduced
21 below the amount provided in such subparagraph.
22 (B) With respect to any return, the maximum amount of the addition
23 permitted under paragraph (c) of this subdivision shall be reduced by
24 the amount of the addition under paragraph (a) of this subdivision,
25 determined without regard to subparagraph (B) of such paragraph (a),
26 which is attributable to the tax for which the notice and demand is made
27 and which is not paid within ten days of such notice and demand.
28 2. Deficiency due to negligence. (a) If any part of a deficiency is
29 due to negligence or intentional disregard of this subchapter or any of
30 the named subchapters or rules or regulations thereunder, but without
31 intent to defraud, there shall be added to the tax an amount equal to
32 five percent of the deficiency.
33 (b) There shall be added to the tax, in addition to the amount deter-
34 mined under paragraph (a) of this subdivision, an amount equal to fifty
35 percent of the interest payable under subdivision one of section 11-675
36 with respect to the portion of the deficiency described in such para-
37 graph (a) which is attributable to the negligence or intentional disre-
38 gard referred to in such paragraph (a), for the period beginning on the
39 last date prescribed by law for payment of such deficiency, determined
40 without regard to any extension, and ending on the date of the assess-
41 ment of the tax, or, if earlier, the date of the payment of the tax.
42 (c) If any payment is shown on a return made by a payor with respect
43 to dividends, patronage dividends and interest under subsection (a) of
44 section six thousand forty-two, subsection (a) of section six thousand
45 forty-four or subsection (a) of section six thousand forty-nine of the
46 internal revenue code of nineteen hundred fifty-four, respectively, and
47 the payee fails to include any portion of such payment in gross income,
48 as that term is defined in paragraph (a) of subdivision four of section
49 11-674, any portion of an underpayment attributable to such failure
50 shall be treated, for purposes of this subdivision, as due to negligence
51 in the absence of clear and convincing evidence to the contrary. If any
52 addition to tax is imposed under this subdivision by reason of the
53 preceding sentence, the amount of the addition to tax imposed by para-
54 graph (a) of this subdivision shall be five percent of the portion of
55 the underpayment which is attributable to the failure described in this
56 paragraph.
S. 8578 764
1 3. Failure to file declaration or underpayment of estimated tax. If
2 any taxpayer fails to file a declaration of estimated tax under subchap-
3 ter two, three or three-A of this chapter, or fails to pay all or any
4 part of an amount which is applied as an installment against such esti-
5 mated tax, it shall be deemed to have made an underpayment of estimated
6 tax. There shall be added to the tax for the taxable year an amount at
7 the underpayment rate set by the commissioner of finance pursuant to
8 section 11-687 of this subchapter, or, if no rate is set, at the rate of
9 seven and one-half percent per annum upon the amount of the underpayment
10 for the period of the underpayment but not beyond the fifteenth day of
11 the fourth month following the close of the taxable year. Provided,
12 however, that, for taxable years beginning on or after January first,
13 two thousand seventeen and before January first, two thousand eighteen,
14 no amount shall be added to the tax with respect to the portion of such
15 tax related to the amount of any interest deductions directly or indi-
16 rectly attributable to the amount included in exempt CFC income pursuant
17 to subparagraph (ii) of paragraph (b) of subdivision five-a of section
18 11-652 of this chapter or the forty percent reduction of such exempt CFC
19 income in lieu of interest attribution if the election described in
20 paragraph (b) of subdivision five-a of such section is made. The amount
21 of the underpayment shall be, with respect to any installment of esti-
22 mated tax computed on the basis of either the preceding year's tax or
23 the second preceding year's tax, the excess of the amount required to be
24 paid over the amount, if any, paid on or before the last day prescribed
25 for such payment or, with respect to any other installment of estimated
26 tax, the excess of the amount of the installment which would be required
27 to be paid if the estimated tax were equal to ninety percent of the tax
28 shown on the return for the taxable year, or if no return was filed,
29 ninety percent of the tax for such year, over the amount, if any, of the
30 installment paid on or before the last day prescribed for such payment.
31 In any case in which there would be no underpayment if "eighty percent"
32 were substituted for "ninety percent" each place it appears in this
33 subdivision, the addition to the tax shall be equal to seventy-five
34 percent of the amount otherwise determined. No underpayment shall be
35 deemed to exist with respect to a declaration or installment otherwise
36 due on or after the termination of existence of the taxpayer.
37 4. Exception to addition for underpayment of estimated tax. The addi-
38 tion to tax under subdivision three of this section with respect to any
39 underpayment of any amount which is applied as an installment against
40 estimated tax under subchapter two, three or three-A of this chapter
41 shall not be imposed if the total amount of all payments of estimated
42 tax made on or before the last date prescribed for the payment of any
43 such amount equals or exceeds the amount which would have been required
44 to be paid on or before such date if the estimated tax were whichever of
45 the following is the least:
46 (a) The tax shown on the return of the taxpayer for the preceding
47 taxable year, if a return showing a liability for tax was filed by the
48 taxpayer for the preceding taxable year and such preceding year was a
49 taxable year of twelve months, or
50 (b) An amount equal to the tax computed at the rates applicable to the
51 taxable year, but otherwise on the basis of the facts shown on the
52 return of the taxpayer for, and the law applicable to, the preceding
53 taxable year, or
54 (c) (i) An amount equal to ninety per centum of the tax for the taxa-
55 ble year computed by placing on an annualized basis the taxable income:
S. 8578 765
1 (1) for the first three months or the first five months of the taxable
2 year, in the case of the installment required to be paid in the sixth
3 month,
4 (2) for the first six months or the first eight months of the taxable
5 year, in the case of the installment required to be paid in the ninth
6 month, and
7 (3) for the first nine months or the first eleven months of the taxa-
8 ble year, in the case of the installment required to be paid in the
9 twelfth month.
10 (ii) For purposes of subparagraph (i) of this paragraph the taxable
11 income shall be placed on an annualized basis by:
12 (1) multiplying it by twelve, or, in the case of a taxable year of
13 less than twelve months, the number of months in the taxable year, and
14 (2) dividing the resulting amount by the number of months in the taxa-
15 ble year, three, five, six, eight, nine or eleven, as the case may be,
16 referred to in subparagraph (i) of this paragraph, or
17 (d) (i) If the base period percentage for any six consecutive months
18 of the taxable year equals or exceeds seventy percent, an amount equal
19 to ninety percent of the tax determined in the following manner:
20 (A) take the taxable income for all months during the taxable year
21 preceding the filing month,
22 (B) divide such amount by the base period percentage for all months
23 during the taxable year preceding the filing month,
24 (C) determine the tax on the amount determined under clause (B) of
25 this subparagraph, and
26 (D) multiply the tax determined under clause (C) of this subparagraph
27 by the base period percentage for the filing month and all months during
28 the taxable year preceding the filing month.
29 (ii) For purposes of subparagraph (i) of this paragraph:
30 (A) the base period percentage for any period of months shall be the
31 average percent which the taxable income for the corresponding months in
32 each of the three preceding taxable years bears to the taxable income
33 for the three preceding taxable years. The commissioner of finance may
34 by regulations provide for the determination of the base period percent-
35 age in the case of reorganizations, new corporations, and other similar
36 circumstances, and
37 (B) the term "filing month" means the month in which the installment
38 is required to be paid.
39 5. (a) Except as provided in paragraph (b) of this subdivision, para-
40 graphs (a) and (b) of subdivision four of this section shall not apply
41 in the case of any corporation, or any predecessor corporation, which
42 had entire net income, or the portion thereof allocated within the city,
43 of one million dollars or more for any taxable year during the three
44 taxable years immediately preceding the taxable year involved.
45 (b) The amount treated as the estimated tax under paragraphs (a) and
46 (b) of subdivision four of this section shall in no event be less than
47 seventy-five percent of the tax shown on the return for the taxable year
48 beginning in nineteen hundred eighty-three or, if no return was filed,
49 seventy-five percent of the tax for such year.
50 6. Deficiency due to fraud. (a) If any part of a deficiency is due to
51 fraud, there shall be added to the tax an amount equal to two times the
52 deficiency.
53 (b) The addition to tax under this subdivision shall be in lieu of any
54 other addition to tax imposed by subdivision one or two of this section.
55 7. Additional penalty. Any person who with fraudulent intent shall
56 fail to pay under the named subchapters any tax, or to make, render,
S. 8578 766
1 sign or certify any return or declaration of estimated tax, or to supply
2 any information within the time required by or under any of the named
3 subchapters, shall be liable to penalty of not more than one thousand
4 dollars, in addition to any other amounts required under this subchapter
5 to be imposed, assessed and collected by the commissioner of finance.
6 The commissioner of finance shall have the power, in his or her
7 discretion, to waive, reduce or compromise any penalty under this subdi-
8 vision.
9 8. Additions treated as tax. The additions to tax and penalties
10 provided by this section shall be paid upon notice and demand and shall
11 be assessed, collected and paid in the same manner as taxes, and any
12 reference in this subchapter to tax imposed by any of the named subchap-
13 ters shall be deemed also to refer to the additions to tax and penalties
14 provided by this section. For purposes of section 11-672 of this
15 subchapter, this subdivision shall not apply to:
16 (a) any addition to tax under subdivision one of this section except
17 as to that portion attributable to a deficiency;
18 (b) any addition to tax under subdivision three or fourteen of this
19 section; and
20 (c) any additional penalties under subdivisions seven and twelve of
21 this section.
22 9. Determination of deficiency. For purposes of subdivisions two and
23 six of this section the amount shown as the tax by the taxpayer upon its
24 return shall be taken into account in determining the amount of the
25 deficiency only if such return was filed on or before the last day
26 prescribed for the filing of such return, determined with regard to any
27 extension of time for such filing.
28 10. Person defined. For purposes of subdivisions seven and twelve of
29 this section, the term "person" includes an individual, corporation or
30 partnership or an officer or employee of any corporation, including a
31 dissolved corporation, or a member or employee of any partnership, who
32 as such officer, employee, or member is under a duty to perform the act
33 in respect of which the violation occurs.
34 11. Substantial understatement of liability. If there is a substantial
35 understatement of tax for any taxable year, there shall be added to the
36 tax an amount equal to ten percent of the amount of any underpayment
37 attributable to such understatement. For purposes of this subdivision,
38 there is a substantial understatement of tax for any taxable year if the
39 amount of the understatement for the taxable year exceeds the greater of
40 ten percent of the tax required to be shown on the return for the taxa-
41 ble year or five thousand dollars. For purposes of this subdivision, the
42 term "understatement" means the excess of the amount of the tax required
43 to be shown on the return for the taxable year, over the amount of the
44 tax imposed which is shown on the return, reduced by any rebate, within
45 the meaning of subdivision eight of section 11-672 of this subchapter.
46 The amount of such understatement shall be reduced by that portion of
47 the understatement which is attributable to the tax treatment of any
48 item by the taxpayer if there is or was substantial authority for such
49 treatment, or any item with respect to which the relevant facts affect-
50 ing the item's tax treatment are adequately disclosed in the return or
51 in a statement attached to the return. The commissioner of finance may
52 waive all or any part of the addition to tax provided by this subdivi-
53 sion on a showing by the taxpayer that there was reasonable cause for
54 the understatement, or part thereof, and that the taxpayer acted in good
55 faith.
S. 8578 767
1 12. Aiding or assisting in the giving of fraudulent returns, reports,
2 statements or other documents. (a) Any person who, with the intent that
3 tax be evaded, shall, for a fee or other compensation or as an incident
4 to the performance of other services for which such person receives
5 compensation, aid or assist in, or procure, counsel, or advise the prep-
6 aration or presentation under, or in connection with any matter arising
7 under this chapter of any return, report, declaration, statement or
8 other document which is fraudulent or false as to any material matter,
9 or supply any false or fraudulent information, whether or not such
10 falsity or fraud is with the knowledge or consent of the person author-
11 ized or required to present such return, report, declaration, statement
12 or other document shall pay a penalty not exceeding ten thousand
13 dollars.
14 (b) For purposes of paragraph (a) of this subdivision, the term
15 "procures" includes ordering, or otherwise causing, a subordinate to do
16 an act, and knowing of, and not attempting to prevent, participation by
17 a subordinate in an act. The term "subordinate" means any other person,
18 whether or not a director, officer, employee, or agent of the taxpayer
19 involved, over whose activities the person has direction, supervision,
20 or control.
21 (c) For purposes of paragraph (a) of this subdivision, a person
22 furnishing typing, reproducing, or other mechanical assistance with
23 respect to a document shall not be treated as having aided or assisted
24 in the preparation of such document by reason of such assistance.
25 (d) The penalty imposed by this subdivision shall be in addition to
26 any other penalty provided by law.
27 13. Failure to file report of information relating to certain interest
28 payments. In case of failure to file the report of information required
29 under either subdivision two-a of section 11-605 of this chapter or
30 subdivision two-a of section 11-655 of this chapter, unless it is shown
31 that such failure is due to reasonable cause and not due to willful
32 neglect, there shall be added to the tax a penalty of five hundred
33 dollars.
34 14. Failure to include on return information relating to issuer's
35 allocation percentage. Where a return is filed but does not contain (1)
36 the information necessary to compute the taxpayer's issuer's allocation
37 percentage, as defined in subparagraph one of paragraph (b) of subdivi-
38 sion three of section 11-604 of this chapter, where the same is called
39 for on the return, or, (2) the taxpayer's issuer's allocation percent-
40 age, where the same is called for on the return but where all of the
41 information necessary for the computation of such percentage is not
42 called for on the return, then unless it is shown that such failure is
43 due to reasonable cause and not due to willful neglect there shall be
44 added to the tax a penalty of five hundred dollars.
45 15. False or fraudulent document penalty. Any taxpayer that submits a
46 false or fraudulent document to the department shall be subject to a
47 penalty of one hundred dollars per document submitted, or five hundred
48 dollars per tax return submitted. Such penalty shall be in addition to
49 any other penalty or addition provided by law.
50 § 11-677 Overpayment. 1. General. The commissioner of finance,
51 within the applicable period of limitations, may credit an overpayment
52 of tax and interest on such overpayment against any liability in respect
53 of any tax imposed by this title on the taxpayer who made the overpay-
54 ment, and the balance shall be refunded out of the proceeds of the tax.
55 Such credit of an overpayment shall be applied before such overpay-
56 ment, or any portion thereof, is paid to the state commissioner of taxa-
S. 8578 768
1 tion and finance pursuant to section one hundred seventy-one-m of the
2 tax law.
3 2. Credits against estimated tax. The commissioner of finance may
4 prescribe regulations providing for the crediting against the estimated
5 tax under subchapter two, three or three-A of this chapter for any taxa-
6 ble year of the amount determined to be an overpayment of tax under any
7 such subchapter for a preceding taxable year. If any overpayment of tax
8 is so claimed as a credit against estimated tax for the succeeding taxa-
9 ble year, such amount shall be considered as a payment of the tax under
10 subchapter two, three or three-A of this chapter for the succeeding
11 taxable year, whether or not claimed as a credit in the declaration of
12 estimated tax for such succeeding taxable year, and no claim for credit
13 or refund of such overpayment shall be allowed for the taxable year for
14 which the overpayment arises.
15 3. Rule where no tax liability. If there is no tax liability for a
16 period in respect of which an amount is paid as tax, such amount shall
17 be considered an overpayment.
18 4. Assessment and collection after limitation period. If any amount
19 of tax is assessed or collected after the expiration of the period of
20 limitations properly applicable thereto, such amount shall be considered
21 an overpayment.
22 5. Assignment of overpayment. A credit for an overpayment of tax
23 under any of the named subchapters may be assigned by the taxpayer to a
24 corporation liable to pay taxes under any of the named subchapters, and
25 the assignee of the whole or any part of such credit, on filing such
26 assignment with the commissioner of finance, shall thereupon be entitled
27 to credit upon the books of the commissioner of finance for the amount
28 thereof on its current account for taxes, in the same manner and to the
29 same effect as though the credit had originally been allowed in its
30 favor.
31 6. Notwithstanding article fifty-two of the civil practice law and
32 rules or any other provision of law to the contrary, the procedures for
33 the enforcement of money judgments shall not apply to the department of
34 finance, or to any officer or employee of such department, as a garnish-
35 ee, with respect to any amount of money to be refunded or credited to a
36 taxpayer under this chapter.
37 § 11-678 Limitations on credit or refund. 1. General. Claim for
38 credit or refund of an overpayment of tax under any of the named
39 subchapters shall be filed by the taxpayer within three years from the
40 time the return was filed or two years from the time the tax was paid,
41 whichever of such periods expires the later, or if no return was filed
42 within two years from the time the tax was paid. If the claim is filed
43 within the three year period, the amount of the credit or refund shall
44 not exceed the portion of the tax paid within the three years immediate-
45 ly preceding the filing of the claim plus the period of any extension of
46 time for filing the return. If the claim is not filed within the three
47 year period, but is filed within the two year period, the amount of the
48 credit or refund shall not exceed the portion of the tax paid during the
49 two years immediately preceding the filing of the claim. Except as
50 otherwise provided in this section, if no claim is filed, the amount of
51 a credit or refund shall not exceed the amount which would be allowable
52 if a claim had been filed on the date the credit or refund is allowed.
53 For special restriction in a proceeding on a claim for refund of tax
54 paid pursuant to an assessment made as a result of: (a) a net operating
55 loss carryback, or (b) an increase or decrease in federal or New York
56 state taxable income or other basis of tax or federal or New York state
S. 8578 769
1 tax, or (c) a federal or New York state change or correction or renego-
2 tiation, or computation or recomputation of tax, which is treated in the
3 same manner as if it were a deficiency for federal or New York state
4 income tax purposes, see paragraph (g) of subdivision three of section
5 11-674 of this subchapter.
6 2. Extension of time by agreement. If any agreement under the
7 provisions of paragraph (b) of subdivision three of section 11-674 of
8 this subchapter, extending the period of assessment of tax, is made
9 within the period prescribed in subdivision one of this section for the
10 filing of a claim for credit or refund, the period for filing a claim
11 for credit or refund, or for making credit or refund if no claim is
12 filed, shall not expire prior to six months after the expiration of the
13 period within which an assessment may be made pursuant to the agreement
14 or any extension thereof. The amount of such credit or refund shall not
15 exceed the portion of the tax paid after the execution of the agreement
16 and before the filing of the claim or the making of the credit or
17 refund, as the case may be, plus the portion of the tax paid within the
18 period which would be applicable under subdivision one if a claim had
19 been filed on the date the agreement was executed.
20 3. Notice of change or correction of federal or New York state income
21 or other basis of tax. If a taxpayer is required by subchapter two,
22 three or three-A of this chapter to file a report or amended return in
23 respect of (a) a decrease or increase in federal or New York state taxa-
24 ble income, alternative minimum taxable income or other basis of tax or
25 federal or New York state tax, (b) a federal or New York state change or
26 correction or renegotiation, or computation or recomputation of tax,
27 which is treated in the same manner as if it were an overpayment for
28 federal or New York state income tax purposes, claim for credit or
29 refund of any resulting overpayment of tax shall be filed by the taxpay-
30 er within two years from the time such report or amended return was
31 required to be filed with the commissioner of finance. If the report or
32 amended return required by subchapter two, three or three-A of this
33 chapter is not filed within the ninety day period therein specified, no
34 interest shall be payable on any claim for credit or refund of the over-
35 payment attributable to the federal or New York state change or
36 correction. The amount of such credit or refund: (c) shall, (i) for
37 taxable years beginning before January first, two thousand fifteen, be
38 computed without change of the allocation of income or capital upon
39 which the taxpayer's return, or any additional assessment, was based,
40 and, (ii) for taxable years beginning on or after January first, two
41 thousand fifteen, be computed without change of the allocation of
42 income or capital upon which the taxpayer's return, or any additional
43 assessment, was based to the extent that the claim for refund arises
44 from a decrease or increase in federal taxable income or other basis
45 of tax or federal tax, or from a federal change, correction, renegoti-
46 ation, computation or recomputation of tax, which is treated in the
47 same manner as if it were an overpayment for federal income tax
48 purposes, and (d) shall not exceed the amount of the reduction in tax
49 attributable to such decrease or increase in federal or New York state
50 taxable income, alternative minimum taxable income or other basis of tax
51 or federal or New York state tax or to such federal or New York state
52 change or correction or renegotiation, or computation or recomputation
53 of tax.
54 This subdivision shall not affect the time within which or the amount
55 for which a claim for credit or refund may be filed apart from this
56 subdivision.
S. 8578 770
1 4. Overpayment attributable to net operating loss carryback or capital
2 loss carryback. A claim for credit or refund of so much of an overpay-
3 ment under subchapter two or three-A of this chapter as is attributable
4 to the application to the taxpayer of a net operating loss carryback or
5 a capital loss carryback shall be filed within three years from the time
6 the return was due, including extensions thereof, for the taxable year
7 of the loss, or within the period prescribed in subdivision two of this
8 section in respect of such taxable year, or within the period prescribed
9 in subdivision three of this section, where applicable, in respect to
10 the taxable year to which the net operating loss or capital loss is
11 carried back, whichever expires the latest. Where such claim for credit
12 or refund is filed after the expiration of the period prescribed in
13 subdivision one or in subdivision two of this section where applicable,
14 in respect to the taxable year to which the net operating loss is
15 carried back, the amount of such credit or refund shall be computed
16 without change of the allocation of income or capital upon which the
17 taxpayer's return, or any additional assessment, was based.
18 5. Failure to file claim within prescribed period. No credit or
19 refund shall be allowed or made, except as provided in subdivision six
20 of this section or subdivision four of section 11-681 of this subchap-
21 ter, after the expiration of the applicable period of limitation speci-
22 fied in this subchapter, unless a claim for credit or refund is filed by
23 the taxpayer within such period. Any later credit shall be void and
24 any later refund erroneous. No period of limitations specified in any
25 other law shall apply to the recovery by a taxpayer of moneys paid in
26 respect of taxes under the named subchapters.
27 6. Effect of a petition to tax appeals tribunal. If a notice of defi-
28 ciency for a taxable year has been mailed to the taxpayer under section
29 11-672 of this subchapter and if the taxpayer files a timely petition
30 with the tax appeals tribunal under section 11-680 of this subchapter,
31 the tax appeals tribunal may determine that the taxpayer has made an
32 overpayment for such year, whether or not it also determines a deficien-
33 cy for such year. No separate claim for credit or refund for such year
34 shall be filed, and no credit or refund for such year shall be allowed
35 or made, except:
36 (a) as to overpayment determined by a decision of the tax appeals
37 tribunal which has become final; and
38 (b) as to any amount collected in excess of an amount computed in
39 accordance with the decision of the tax appeals tribunal which has
40 become final; and
41 (c) as to any amount collected after the period of limitation upon the
42 making of levy for collection has expired; and
43 (d) as to any amount claimed as a result of a change or correction
44 described in subdivision three of this section.
45 7. Limit on amount of credit or refund. The amount of overpayment
46 determined under subdivision six of this section shall, when the deci-
47 sion of the tax appeals tribunal has become final, be credited or
48 refunded in accordance with subdivision one of section 11-677 of this
49 subchapter and shall not exceed the amount of tax which the tax appeals
50 tribunal determines as part of its decision was paid:
51 (a) after the mailing of the notice of deficiency, or
52 (b) within the period which would be applicable under subdivision one,
53 two or three of this section, if on the date of the mailing of the
54 notice of deficiency a claim had been filed, whether or not filed, stat-
55 ing the ground upon which the tax appeals tribunal finds that there is
56 an overpayment.
S. 8578 771
1 For special restriction on credit or refund in a proceeding on a peti-
2 tion for redetermination of a deficiency where the notice of deficiency
3 is issued as a result of (i) a net operating loss carryback, or (ii) an
4 increase or decrease in federal or New York state taxable income or
5 other basis of tax or federal or New York state tax, or (iii) a federal
6 or New York state change or correction or renegotiation, or computation
7 or recomputation of tax, which is treated in the same manner as if it
8 were a deficiency for federal or New York state income tax purposes, see
9 paragraph (g) of subdivision three of section 11-674 of this subchapter.
10 8. Early return. For purposes of this section, any return filed
11 before the last day prescribed for the filing thereof shall be consid-
12 ered as filed on such last day, determined without regard to any exten-
13 sion of time granted the taxpayer.
14 9. Prepaid tax. For purposes of this section, any tax paid by the
15 taxpayer before the last day prescribed for its payment, including any
16 amount paid by the taxpayer as estimated tax for a taxable year, shall
17 be deemed to have been paid by it on the fifteenth day of the third
18 month following the close of the taxable year the income of which is the
19 basis for tax under subchapter two, three or three-A of this chapter, or
20 on the last day prescribed in part one of subchapter three or subchapter
21 four of this chapter for the filing of a final return for such taxable
22 year, or portion thereof, determined in all cases without regard to any
23 extension of time granted the taxpayer.
24 10. Cross reference. For provision barring refund of overpayment
25 credited against tax of a succeeding year, see subdivision two of
26 section 11-677 of this subchapter.
27 11. Notice of change or correction of sales and compensating use tax
28 liability. (a) If a taxpayer is required by subchapter two or three-A of
29 this chapter to file a report or amended return in respect of a change
30 or correction of its sales and compensating use tax liability, claim for
31 credit or refund of any resulting overpayment of tax shall be filed by
32 the taxpayer within two years from the time such report or amended
33 return was required to be filed with the commissioner of finance. The
34 amount of such credit or refund shall be computed without change of the
35 allocation of income or capital upon which the taxpayer's return, or any
36 additional assessment, was based, and shall not exceed the amount of the
37 reduction in tax attributable to such change or correction of sales and
38 compensating use tax liability.
39 (b) This subdivision shall not affect the time within which or the
40 amount for which a claim for credit or refund may be filed apart from
41 this subdivision.
42 § 11-679 Interest on overpayment. 1. General. Notwithstanding the
43 provisions of section three-a of the general municipal law, interest
44 shall be allowed and paid as follows at the overpayment rate set by the
45 commissioner of finance pursuant to section 11-687 of this subchapter,
46 or, if no rate is set, at the rate of six percent per annum upon any
47 overpayment in respect to the tax imposed by any of the named subchap-
48 ters:
49 (a) from the date of the overpayment to the due date of an amount
50 against which a credit is taken;
51 (b) from the date of the overpayment to a date, to be determined by
52 the commissioner of finance, preceding the date of a refund check by not
53 more than thirty days, whether or not such refund check is accepted by
54 the taxpayer after tender of such check to the taxpayer. The acceptance
55 of such check shall be without prejudice to any right of the taxpayer to
56 claim any additional overpayment and interest thereon.
S. 8578 772
1 (c) Late and amended returns and claims for credit or refund.
2 Notwithstanding paragraph (a) or (b) of this subdivision, in the case of
3 an overpayment claimed on a return of tax which is filed after the last
4 date prescribed for filing such return, determined with regard to exten-
5 sions, or claimed on an amended return of tax or claimed on a claim for
6 credit or refund, no interest shall be allowed or paid for any day
7 before the date on which such return or claim is filed.
8 (d) Interest on certain refunds. To the extent provided for in regu-
9 lations promulgated by the commissioner of finance, if an item of
10 income, gain, loss, deduction or credit is changed from the taxable year
11 or period in which it is reported to the taxable year or period in which
12 it belongs and the change results in an underpayment in a taxable year
13 or period and an overpayment in some other taxable year or period, the
14 provisions of paragraph (c) of this subdivision with respect to an over-
15 payment shall not be applicable to the extent that the limitation in
16 such paragraph on the right to interest would result in a taxpayer not
17 being allowed interest for a length of time with respect to an overpay-
18 ment while being required to pay interest on an equivalent amount of the
19 related underpayment. However, this paragraph shall be not construed as
20 limiting or mitigating the effect of any statute of limitations or any
21 other provision of law relating to the authority of such commissioner to
22 issue a notice of deficiency or to allow a credit or refund of an over-
23 payment.
24 (e) Amounts of less than one dollar. No interest shall be allowed or
25 paid if the amount thereof is less than one dollar.
26 2. Advance payment of tax and estimated tax. The provisions of subdi-
27 visions eight and nine of section 11-678 of this subchapter applicable
28 in determining the date of payment of tax for purposes of determining
29 the period of limitations on credit or refund, shall be applicable in
30 determining the date of payment for purposes of this section.
31 3. Tax refund within three months of claim for overpayment. If any
32 overpayment of tax imposed by any of the named subchapters is credited
33 or refunded within three months after the last date prescribed, or
34 permitted by extension of time, for filing the return of such tax on
35 which such overpayment was claimed or within three months after such
36 return was filed, whichever is later, or within three months after an
37 amended return was filed claiming such overpayment or within three
38 months after a claim for credit or refund was filed on which such over-
39 payment was claimed, no interest shall be allowed under this section on
40 any such overpayment. For purposes of this subdivision, any amended
41 return or claim for credit or refund filed before the last day
42 prescribed, or permitted by extension of time, for the filing of the
43 return of tax for such year or period shall be considered as filed on
44 such last day.
45 4. Refund of tax caused by carryback. For purposes of this section,
46 if any overpayment of tax imposed by subchapter two or three-A of this
47 chapter results from a carryback of a net operating loss or a net capi-
48 tal loss, such overpayment shall be deemed not to have been made prior
49 to the filing date for the taxable year in which such net operating loss
50 or net capital loss arises. Such filing date shall be determined without
51 regard to extensions of time to file. For purposes of subdivision three
52 of this section any overpayment described herein shall be treated as an
53 overpayment for the loss year and such subdivision shall be applied with
54 respect to such overpayment by treating the return for the loss year as
55 not filed before claim for such overpayment is filed. The term "loss
56 year" means the taxable year in which such loss arises.
S. 8578 773
1 5. No interest until return in processible form.
2 (a) For purposes of subdivisions one and three of this section, a
3 return shall not be treated as filed until it is filed in processible
4 form.
5 (b) For purposes of paragraph (a) of this subdivision, a return is in
6 a processible form if:
7 (A) such return is filed on a permitted form, and
8 (B) such return contains:
9 (i) the taxpayer's name; address, and identifying number and the
10 required signatures, and
11 (ii) sufficient required information, whether on the return or on
12 required attachments, to permit the mathematical verification of tax
13 liability shown on the return.
14 6. Cross reference. For provision with respect to interest after
15 failure to file a report of federal or New York state change or
16 correction or amended return under subchapter two, three or three-A, see
17 subdivision three of section 11-678 of this subchapter.
18 § 11-680 Petition to tax appeals tribunal. 1. General. The form of a
19 petition to the tax appeals tribunal, and further proceedings before the
20 tax appeals tribunal in any case initiated by the filing of a petition,
21 shall be governed by such rules as the tax appeals tribunal shall
22 prescribe. No petition shall be denied in whole or in part without
23 opportunity for a hearing on reasonable prior notice. Such hearing and
24 any appeal to the tribunal sitting en banc from the decision rendered in
25 such hearing shall be conducted in the manner and subject to the
26 requirements prescribed by the tax appeals tribunal pursuant to sections
27 one hundred sixty-eight through one hundred seventy-two of the charter
28 of the preceding municipality as it existed January first, nineteen
29 hundred ninety-four. A decision of the tax appeals tribunal shall be
30 rendered, and notice thereof shall be given, in the manner provided by
31 section one hundred seventy-one of the charter of the preceding munici-
32 pality as it existed January first, nineteen hundred ninety-four.
33 2. Petition for redetermination of a deficiency. Within ninety days,
34 or one hundred fifty days if the notice is addressed to a taxpayer whose
35 last known address is outside of the United States, after the mailing of
36 the notice of deficiency authorized by section 11-672 of this subchap-
37 ter, or if the commissioner of finance has established a conciliation
38 procedure pursuant to section 11-124 of this title and the taxpayer has
39 requested a conciliation conference in accordance therewith, after nine-
40 ty days from the mailing of the conciliation decision or the date of the
41 commissioner's confirmation of the discontinuance of the conciliation
42 proceeding, the taxpayer may file a petition with the tax appeals tribu-
43 nal for redetermination of the deficiency. Such petition may also assert
44 a claim for refund for the same taxable year or years, subject to the
45 limitations of subdivision seven of section 11-678 of this subchapter.
46 For special restriction where the notice of deficiency relates to a
47 proposed assessment made as a result of: (a) a net operating loss carry-
48 back or a capital loss carryback, (b) an increase or decrease in federal
49 or New York state taxable income or other basis of tax or federal or New
50 York state tax, or (c) a federal or New York state change or correction
51 or renegotiation, or computation or recomputation of tax, which is
52 treated in the same manner as if it were a deficiency for federal or New
53 York state income tax purposes, see paragraph (g) of subdivision three
54 of section 11-674 of this subchapter.
55 3. Petition for refund. A taxpayer may file a petition with the tax
56 appeals tribunal for the amounts asserted in a claim for refund if:
S. 8578 774
1 (a) the taxpayer has filed a timely claim for refund with the commis-
2 sioner of finance,
3 (b) the taxpayer has not previously filed with the tax appeals tribu-
4 nal a timely petition under subdivision two of this section for the same
5 taxable year unless the petition under this subdivision relates to a
6 separate claim for credit or refund properly filed under subdivision six
7 of section 11-678 of this subchapter, and
8 (c) either: (1) six months have expired since the claim was filed, or
9 (2) the commissioner of finance has mailed to the taxpayer, by regis-
10 tered or certified mail, a notice of disallowance of such claim in whole
11 or in part.
12 No petition under this subdivision shall be filed more than two years
13 after the date of mailing of a notice of disallowance, unless prior to
14 the expiration of such two year period it has been extended by written
15 agreement between the taxpayer and the commissioner of finance. If a
16 taxpayer files a written waiver of the requirement that the taxpayer be
17 mailed a notice of disallowance, the two year period prescribed by this
18 subdivision for filing a petition for refund shall begin on the date
19 such waiver is filed.
20 (d) If the commissioner of finance has established a conciliation
21 procedure pursuant to section 11-124 of this title, a taxpayer which is
22 eligible to file a petition for refund with the tax appeals tribunal
23 pursuant to this subdivision may request a conciliation conference prior
24 to filing such petition, provided the request is made within the time
25 prescribed for filing the petition. Notwithstanding anything in this
26 subdivision to the contrary, if the taxpayer has requested a concil-
27 iation conference in accordance with the procedure established pursuant
28 to section 11-124 of this title, a petition for refund may be filed no
29 later than ninety days from the mailing of the conciliation decision or
30 the date of the commissioner's confirmation of the discontinuance of the
31 conciliation proceeding.
32 4. Assertion of deficiency after filing petition.
33 (a) Petition for redetermination of deficiency. If a taxpayer files
34 with the tax appeals tribunal a petition for redetermination of a defi-
35 ciency, the tax appeals tribunal shall have power to determine a greater
36 deficiency than asserted in the notice of deficiency and to determine if
37 there should be assessed any addition to tax or penalty provided in
38 section 11-676 of this subchapter, if claim therefor is asserted at or
39 before the hearing under rules of the tax appeals tribunal.
40 (b) Petition for refund. If the taxpayer files with the tax appeals
41 tribunal a petition for credit or refund for a taxable year, the tax
42 appeals tribunal may:
43 (1) determine a deficiency for such year as to any amount of deficien-
44 cy asserted at or before the hearing under rules of the tax appeals
45 tribunal and within the period in which an assessment would be timely
46 under section 11-674 of this subchapter, or
47 (2) deny so much of the amount for which credit or refund is sought in
48 the petition, as is offset by other issues pertaining to the same taxa-
49 ble year which are asserted at or before the hearing under rules of the
50 tax appeals tribunal.
51 (c) Opportunity to respond. A taxpayer shall be given a reasonable
52 opportunity to respond to any matters asserted by the commissioner of
53 finance under this subdivision.
54 (d) Restriction on further notices of deficiency. If the taxpayer
55 files a petition with the tax appeals tribunal under this section, no
56 notice of deficiency under section 11-672 of this subchapter may there-
S. 8578 775
1 after be issued by the commissioner of finance for the same taxable
2 year, except in case of fraud or with respect to an increase or decrease
3 in federal or New York state taxable income, alternative minimum taxable
4 income or other basis of tax or federal or New York state tax or a
5 federal or New York state change or correction or renegotiation, or
6 computation or recomputation of tax, which is treated in the same manner
7 as if it were a deficiency for federal or New York state income tax
8 purposes, required to be reported under subchapter two, three or three-A
9 of this chapter or with respect to a state change or correction of sales
10 and compensating use tax liability required to be reported under
11 subchapter two or three-A of this chapter.
12 5. Burden of proof. In any case before the tax appeals tribunal under
13 this subchapter, the burden of proof shall be upon the petitioner except
14 for the following issues, as to which the burden of proof shall be upon
15 the commissioner of finance:
16 (a) whether the petitioner has been guilty of fraud with intent to
17 evade tax;
18 (b) whether the petitioner is liable as the transferee of property of
19 a taxpayer, but not to show that the taxpayer was liable for the tax;
20 (c) whether the petitioner is liable for any increase in a deficiency
21 where such increase is asserted initially after a notice of deficiency
22 was mailed and a petition under this section filed, unless such increase
23 in deficiency is the result of an increase or decrease in federal or New
24 York state taxable income, alternative minimum taxable income or other
25 basis of tax or federal or New York state tax or a federal or New York
26 state change or correction or renegotiation, or computation or recompu-
27 tation of tax, which is treated in the same manner as if it were a defi-
28 ciency for federal or New York state income tax purposes, required to be
29 reported under subchapter two, three or three-A of this chapter, and of
30 which increase, decrease, change or correction or renegotiation, or
31 computation or recomputation, the commissioner of finance had no notice
32 at the time he or she mailed the notice of deficiency or unless such
33 increase in deficiency is the result of a change or correction of sales
34 and compensating use tax liability required to be reported under
35 subchapter two or three-A of this chapter, and of which change or
36 correction the commissioner of finance had no notice at the time he or
37 she mailed the notice of deficiency; and
38 (d) whether any person is liable for a penalty under subdivision
39 twelve of section 11-676 of this subchapter.
40 6. Evidence of related federal or state determination. Evidence of a
41 federal or state determination relating to issues raised in a case
42 before the tax appeals tribunal under this section shall be admissible,
43 under rules established by the tax appeals tribunal.
44 7. Jurisdiction over other years. The tax appeals tribunal shall
45 consider such facts with relation to the taxes for other years as may be
46 necessary correctly to determine the tax for the taxable year, but in so
47 doing shall have no jurisdiction to determine whether or not the tax for
48 any other year has been overpaid or underpaid.
49 § 11-681 Review of tax appeals tribunal's decision. 1. General. A
50 decision of the tax appeals tribunal sitting en banc shall be subject to
51 judicial review at the instance of any taxpayer affected thereby in the
52 manner provided by law for the review of a final decision or action of
53 administrative agencies of the city. An application by a taxpayer for
54 such review must be made within four months after notice of the decision
55 is sent by certified mail, return receipt requested, to the taxpayer and
56 the commissioner of finance.
S. 8578 776
1 2. Judicial review exclusive remedy. The review of a decision of the
2 tax appeals tribunal provided by this section shall be the exclusive
3 remedy available to any taxpayer for the judicial determination of the
4 liability of the taxpayer for the taxes imposed by the named subchap-
5 ters.
6 3. Assessment pending review; review bond. Irrespective of any
7 restrictions on the assessment and collection of deficiencies, the
8 commissioner of finance may assess a deficiency determined by the tax
9 appeals tribunal in a decision rendered pursuant to section one hundred
10 seventy-one of the charter of the preceding municipality as it existed
11 January first, nineteen hundred ninety-four after the expiration of the
12 period specified in subdivision one, notwithstanding that an application
13 for judicial review in respect of such deficiency has been duly made by
14 the taxpayer unless the taxpayer, at or before the time the taxpayer's
15 application for review is made, has paid the deficiency, has deposited
16 with the commissioner of finance the amount of the deficiency, or has
17 filed with the commissioner of finance a bond, which may be a jeopardy
18 bond under subdivision eight of section 11-685 of this subchapter, in
19 the amount of the portion of the deficiency, including interest and
20 other amounts, in respect of which the application for review is made
21 and all costs and charges which may accrue against the taxpayer in the
22 prosecution of the proceeding, including costs of all appeals, and with
23 surety approved by a justice of the supreme court of the state, condi-
24 tioned upon the payment of the deficiency, including interest and other
25 amounts, as finally determined and such costs and charges. If, as a
26 result of a waiver of the restrictions on the assessment and collection
27 of a deficiency, any part of the amount determined by the tax appeals
28 tribunal is paid after the filing of the review bond, such bond shall,
29 at the request of the taxpayer, be proportionately reduced.
30 4. Credit, refund or abatement after review. If the amount of a defi-
31 ciency determined by the tax appeals tribunal is disallowed in whole or
32 in part by the court of review, the amount so disallowed shall be cred-
33 ited or refunded to the taxpayer, without the making of claim therefor,
34 or, if payment has not been made, shall be abated.
35 5. Date of finality of tax appeals tribunal decision. A decision of
36 the tax appeals tribunal shall become final upon the expiration of the
37 period specified in subdivision one of this section for making an appli-
38 cation for review, if no such application has been duly made within such
39 time, or if such application has been duly made, upon expiration of the
40 time for all further judicial review, or upon the rendering by the tax
41 appeals tribunal of a decision in accordance with the mandate of the
42 court on review provided, however, for the purpose of making an applica-
43 tion for review, the decision of the tax appeals tribunal shall be
44 deemed final on the date the notice of decision is sent by certified
45 mail to the taxpayer and the commissioner of finance.
46 § 11-682 Mailing rules; holidays; miscellaneous. 1. Timely mailing.
47 (a) If any return, declaration of estimated tax, claim, statement,
48 notice, petition, or other document required to be filed, or any payment
49 required to be made, within a prescribed period or on or before a
50 prescribed date under authority of any provision of this subchapter or
51 of the named subchapters is, after such period or such date, delivered
52 by United States mail to the commissioner of finance, tax appeals tribu-
53 nal, bureau, office, officer or person with which or with whom such
54 document is required to be filed, or to which or to whom such payment is
55 required to be made, the date of the United States postmark stamped on
56 the envelope shall be deemed to be the date of delivery. This subdivi-
S. 8578 777
1 sion shall apply only if the postmark date falls within the prescribed
2 period or on or before the prescribed date for the filing of such docu-
3 ment, or for making the payment, including any extension granted for
4 such filing or payment, and only if such document or payment was depos-
5 ited in the mail, postage prepaid, properly addressed to the commission-
6 er of finance, tax appeals tribunal, bureau, office, officer or person
7 with which or with whom the document is required to be filed or to which
8 or to whom such payment is required to be made. If any document is sent
9 by United States registered mail, such registration shall be prima facie
10 evidence that such document was delivered to the commissioner of
11 finance, tax appeals tribunal, bureau, office, officer or person to
12 which or to whom addressed. To the extent that the commissioner of
13 finance or, where relevant, the tax appeals tribunal shall prescribe by
14 regulation, certified mail may be used in lieu of registered mail under
15 this subdivision. Except as provided in paragraph (b) of this subdivi-
16 sion, this subdivision shall apply in the case of postmarks not made by
17 the United States postal service only if and to the extent provided by
18 regulations of the commissioner of finance or, where relevant, the tax
19 appeals tribunal.
20 (b) (i) Any reference in paragraph (a) of this subdivision to the
21 United States mail shall be treated as including a reference to any
22 delivery service designated by the secretary of the treasury of the
23 United States pursuant to section seventy-five hundred two of the inter-
24 nal revenue code and any reference in paragraph (a) of this subdivision
25 to a United States postmark shall be treated as including a reference to
26 any date recorded or marked in the manner described in section seventy-
27 five hundred two of the internal revenue code by a designated delivery
28 service. If the commissioner of finance finds that any delivery service
29 designated by such secretary is inadequate for the needs of the city,
30 the commissioner may withdraw such designation for purposes of this
31 title. The commissioner may also designate additional delivery services
32 meeting the criteria of section seventy-five hundred two of the internal
33 revenue code for purposes of this title, or may withdraw any such desig-
34 nation if the commissioner of finance finds that a delivery service so
35 designated is inadequate for the needs of the city. Any reference in
36 paragraph (a) of this subdivision to the United States mail shall be
37 treated as including a reference to any delivery service designated by
38 the commissioner of finance and any reference in paragraph (a) of this
39 subdivision to a United States postmark shall be treated as including a
40 reference to any date recorded or marked in the manner described in
41 section seventy-five hundred two of the internal revenue code by a
42 delivery service designated by the commissioner of finance, provided,
43 however, any withdrawal of designation or additional designation by the
44 commissioner of finance shall not be effective for purposes of service
45 upon the tax appeals tribunal, unless and until such withdrawal of
46 designation or additional designation is ratified by the president of
47 the tax appeals tribunal.
48 (ii) Any equivalent of registered or certified mail designated by the
49 United States secretary of the treasury, or as may be designated by the
50 commissioner of finance pursuant to the same criteria used by such
51 secretary for such designations pursuant to section seventy-five hundred
52 two of the internal revenue code, shall be included within the meaning
53 of registered or certified mail as used in paragraph (a) of this subdi-
54 vision. If the commissioner of finance finds that any equivalent of
55 registered or certified mail designated by such secretary or the commis-
56 sioner of finance is inadequate for the needs of the city, the commis-
S. 8578 778
1 sioner of finance may withdraw such designation for purposes of this
2 title, provided, however, any withdrawal of designation or additional
3 designation by the commissioner of finance shall not be effective for
4 purposes of service upon the tax appeals tribunal, unless and until such
5 withdrawal of designation or additional designation is ratified by the
6 president of the tax appeals tribunal.
7 2. Last known address. For purposes of this subchapter, a taxpayer's
8 last known address shall be the address given in the last return filed
9 by it, unless subsequently to the filing of such return the taxpayer
10 shall have notified the commissioner of finance of a change of address.
11 3. Last day a Saturday, Sunday or legal holiday. When the last day
12 prescribed under authority of this subchapter or the named subchapters,
13 including any extension of time, for performing any act falls on a
14 Saturday, Sunday, or legal holiday in the state, the performance of such
15 act shall be considered timely if it is performed on the next succeeding
16 day which is not a Saturday, Sunday or legal holiday.
17 4. Certificate; unfiled return. For purposes of this subchapter and
18 sections one hundred sixty-eight through one hundred seventy-two of the
19 charter of the preceding municipality as it existed January first, nine-
20 teen hundred ninety-four, the certificate of the commissioner of finance
21 to the effect that a tax has not been paid, that a return or declaration
22 of estimated tax has not been filed, or that information has not been
23 supplied, as required by or under the provisions of this chapter, shall
24 be prima facie evidence that such tax has not been paid, that such
25 return or declaration has not been filed, or that such information has
26 not been supplied.
27 § 11-683 Collection, levy and liens. 1. Collection procedures. The
28 taxes imposed by the named subchapters shall be collected by the commis-
29 sioner of finance, and he or she may establish the mode or time for the
30 collection of any amount due him or her thereunder if not otherwise
31 specified. The commissioner of finance shall, upon request, give a
32 receipt for any sum collected thereunder. The commissioner of finance
33 may authorize banks or trust companies which are depositaries or finan-
34 cial agents of the city to receive and give a receipt for any tax
35 imposed under the named subchapters in such manner, at such times, and
36 under such conditions as the commissioner of finance may prescribe; and
37 the commissioner of finance shall prescribe the manner, times and condi-
38 tions under which the receipt of such tax by such banks and trust compa-
39 nies is to be treated as payment of such tax to the commissioner of
40 finance.
41 2. Notice and demand for tax. The commissioner of finance shall as
42 soon as practicable give notice to each taxpayer liable for any amount
43 of tax, addition to tax, penalty or interest, which has been assessed
44 but remains unpaid, stating the amount and demanding payment thereof.
45 Such notice shall be left at the principal office of the taxpayer in the
46 city or shall be sent by mail to such taxpayer's last known address.
47 Except where the commissioner of finance determines that collection
48 would be jeopardized by delay, if any tax is assessed prior to the last
49 date, including any date fixed by extension, prescribed for payment of
50 such tax, payment of such tax shall not be demanded until after such
51 date.
52 3. Issuance of warrant after notice and demand. If any corporation or
53 other person liable under the named subchapters for the payment of any
54 tax, addition to tax, penalty or interest neglects or refuses to pay the
55 same within ten days after notice and demand therefor is given to such
56 corporation or other person under subdivision two of this section, the
S. 8578 779
1 commissioner of finance may within six years after the date of such
2 assessment issue a warrant directed to the sheriff of any county of the
3 state, or to any officer or employee of the department of finance,
4 commanding him or her to levy upon and sell the real and personal prop-
5 erty of such corporation or other person for the payment of the amount
6 assessed, with the cost of executing the warrant, and to return such
7 warrant to the commissioner of finance, and pay to the commissioner the
8 money collected by virtue thereof within sixty days after the receipt of
9 the warrant. If the commissioner of finance finds that the collection
10 of the tax or other amount is in jeopardy, notice and demand for immedi-
11 ate payment of such tax may be made by the commissioner of finance and
12 upon failure or refusal to pay such tax or other amount the commissioner
13 of finance may issue a warrant without regard to the ten-day period
14 provided in this subdivision.
15 4. Copy of warrant to be filed and lien to be created. Any sheriff or
16 officer or employee who receives a warrant under subdivision three of
17 this section shall within five days thereafter file a copy with the
18 clerk of the appropriate county. The clerk shall thereupon enter in the
19 judgment docket, in the column for judgment debtors, the name of the
20 taxpayer mentioned in the warrant, and in appropriate columns the tax or
21 other amounts for which the warrant is issued and the date when such
22 copy is filed; and such amount shall thereupon be a binding lien upon
23 the real, personal and other property of the taxpayer.
24 5. Judgment. When a warrant has been filed with the county clerk the
25 commissioner of finance shall, on behalf of the city, be deemed to have
26 obtained judgment against the taxpayer for the tax or other amounts.
27 6. Execution. The sheriff or officer or employee shall thereupon
28 proceed upon the judgment in all respects, with like effect, and in the
29 same manner prescribed by law in respect to executions issued against
30 property upon judgments of a court of record, and a sheriff shall be
31 entitled to the same fees for his or her services in executing the
32 warrant, to be collected in the same manner. An officer or employee of
33 the department of finance may proceed in any county or counties of this
34 state and shall have all the powers of execution conferred by law upon
35 sheriffs, but shall be entitled to no fee or compensation in excess of
36 actual expenses paid in connection with the execution of the warrant.
37 7. Foreign corporations. Where a notice and demand under subdivision
38 two of this section shall have been given to a foreign corporation or
39 other person who is not then a resident, and it appears to the commis-
40 sioner of finance that it is not practicable to find in the state prop-
41 erty of such foreign corporation or nonresident person sufficient to pay
42 the entire balance of tax or other amount owing by such foreign corpo-
43 ration or nonresidential person, the commissioner of finance may, in
44 accordance with subdivision three of this section, issue a warrant
45 directed to an officer or employee of the department of finance, a copy
46 of which warrant shall be mailed by certified or registered mail to such
47 foreign corporation or nonresident person at its last known address,
48 subject to the rules of mailing provided in subdivision one of section
49 11-672 of this subchapter. Such warrant shall command the officer or
50 employee to proceed in Richmond county, and he or she shall, within five
51 days after receipt of the warrant, file the warrant and obtain a judg-
52 ment in accordance with this section. Thereupon the commissioner of
53 finance may authorize the institution of any action or proceeding to
54 collect or enforce the judgment in any place and by any procedure that a
55 civil judgment of the supreme court of the state of New York could be
56 collected or enforced. The commissioner of finance may also, in his or
S. 8578 780
1 her discretion, designate agents or retain counsel for the purpose of
2 collecting, outside the state, any unpaid taxes, additions to tax,
3 penalties or interest which have been assessed under this subchapter or
4 under any of the named subchapters, against foreign corporations or
5 other non-resident persons, may fix the compensation of such agents and
6 counsel to be paid out of money appropriated or otherwise lawfully
7 available for payment thereof, and may require of them bonds or other
8 security for the faithful performance of their duties, in such form and
9 in such amount as the commissioner of finance shall deem proper and
10 sufficient.
11 8. Action by city for recovery of taxes. Action may be brought by the
12 corporation counsel of the city at the instance of the commissioner of
13 finance to recover the amount of any unpaid taxes, additions to tax,
14 penalties or interest which have been assessed under this subchapter or
15 under the named subchapters within six years prior to the date the
16 action is commenced.
17 9. Release of lien. The commissioner of finance, if he or she finds
18 that the interests of the city will not thereby be jeopardized, and upon
19 such conditions as it may require, may release any property from the
20 lien of any warrant filed under subdivision four or seven of this
21 section for unpaid taxes, additions to tax, penalties and interest filed
22 pursuant to this section, and such release or vacating of the warrant
23 may be recorded in the office of any recording officer in which such
24 warrant has been filed. The clerk shall thereupon cancel and discharge
25 as of the original date of docketing the vacated warrant.
26 10. Lien from due date of return. (a) In addition to any other lien
27 provided for in this section, each tax imposed by the named subchapters
28 shall become a lien on the date on which the return is required to be
29 filed, without regard to any extension of time for filing such return,
30 except that such tax shall become a lien not later than the date the
31 taxpayer ceases to be subject to the tax imposed by any of the named
32 subchapters, or to do business in this state in a corporate or organized
33 capacity. Each such tax shall be a lien and binding upon the real and
34 personal property of the taxpayer, or of a transferee liable to pay the
35 same, until the same is paid in full, except that no lien for any addi-
36 tional tax assessed pursuant to this subchapter shall be enforceable
37 against property which prior to the issuance to the taxpayer of a notice
38 of deficiency under section 11-672 of this subchapter had been trans-
39 ferred in good faith to a bona fide transferee for value. But the lien
40 of each such tax shall be subject to the lien of any mortgage indebt-
41 edness existing against real property previous to the time when the tax
42 became a lien and where such mortgage indebtedness has been incurred in
43 good faith and was not given, directly or indirectly, to any officer or
44 stockholder of the corporation owning such real property, whether as a
45 purchase money mortgage or otherwise, and shall also be subject to the
46 lien of local taxes and assessments, without regard to when the lien for
47 such taxes and assessments may have accrued. If the return is filed and
48 the tax shown on the report to be due is paid on or before the date on
49 which the report is required to be filed, without regard to any exten-
50 sions of time for filing such report, the lien shall not be enforceable
51 against the interest of any purchaser or mortgagee in property which is
52 thereafter, but prior to the issuance to the taxpayer of a notice of
53 deficiency under section 11-672 of this subchapter transferred to a bona
54 fide purchaser for value, or mortgaged where the mortgage indebtedness
55 is incurred in good faith and the mortgage is not given, directly or
56 indirectly, to any officer or stockholder of the corporation. In any
S. 8578 781
1 action to foreclose any such mortgage, or to foreclose the lien of local
2 taxes or assessments, to which the people of the state, or the city
3 shall have been made a party defendant by reason of the existence of a
4 lien for any such tax, or if no such tax was due or was a lien at the
5 time of the commencement of such action and the filing of the notice of
6 pendency thereof but such a tax becomes due or becomes a lien subsequent
7 to the time of the commencement of such action and the filing of the
8 notice of pendency thereof, such real property shall be sold and
9 conveyed in such action free from any such tax lien, and any such tax
10 lien may become a lien on any surplus moneys which may result from such
11 sale, to be determined in the proceedings for the distribution of such
12 surplus moneys. Where title to real property passes from an individual,
13 or from a corporation owing no tax, to another corporation which is in
14 default for such tax, the lien herein provided shall not be enforceable
15 except as to any equity after the prior mortgage or purchase money mort-
16 gage encumbrance.
17 (b) The commissioner of finance may, upon application made to the
18 commissioner and the payment of a fee of twenty-five dollars, release
19 any real property from the lien under this subdivision, provided payment
20 be made to the commissioner of finance of such a sum as the commissioner
21 of finance shall deem adequate consideration for such release, or depos-
22 it be made of such security or such bond be filed as the commissioner of
23 finance shall deem proper to secure payment of any such tax. The appli-
24 cation for such release shall contain an accurate description of the
25 property to be released together with such information as the commis-
26 sioner of finance may require. Such release may be recorded in any
27 office in which conveyances of real estate are entitled to be recorded.
28 (c) All taxes, additions to tax, penalties and interest which have
29 become a lien under this subdivision shall cease to be a lien after the
30 expiration of twenty years from the date they become due and payable,
31 except that taxes, additions to tax, penalties and interest which have
32 become a lien under this subdivision (1) as to real estate in the hands
33 of persons who are owners thereof who would be purchasers in good faith
34 but for such taxes, additions to tax, penalties or interest and (2) as
35 to the lien on real estate of mortgages held by persons who would be
36 holders thereof in good faith but for such taxes, additions to tax,
37 penalties or interest, as against such purchasers or holders, shall
38 cease to be a lien after the expiration of ten years from the date they
39 become due and payable. The limitations herein provided for shall not
40 apply to any transfer from a corporation to a person or corporation with
41 intent to avoid payment of any taxes, or where with like intent the
42 transfer is made to a grantee corporation, or any subsequent grantee
43 corporation, controlled by such grantor or which has any community of
44 interest with it, either through stock ownership or otherwise.
45 § 11-684 Transferees. 1. General. The liability, at law or in equi-
46 ty, of a transferee of property of a taxpayer for any tax, additions to
47 tax, penalty or interest due the commissioner of finance under this
48 subchapter or under the named subchapters, shall be assessed, paid, and
49 collected in the same manner and subject to the same provisions and
50 limitations as in the case of the tax to which the liability relates,
51 except that the period of limitations for assessment against the trans-
52 feree shall be extended by one year for each successive transfer, in
53 order, from the original taxpayer to the transferee involved, but not by
54 more than three years in the aggregate. The term transferee includes,
55 in case of successive transfers, donee, heir, legatee, devisee, distri-
56 butee, and successor by merger, consolidation or other reorganization.
S. 8578 782
1 2. Exceptions.
2 (a) If before the expiration of the period of limitations for assess-
3 ment of liability of the transferee, a claim has been filed by the
4 commissioner of finance in any court against the original taxpayer or
5 the last preceding transferee based upon the liability of the original
6 taxpayer, then the period of limitation for assessment of liability of
7 the transferee shall in no event expire prior to one year after such
8 claim has been finally allowed, disallowed or otherwise disposed of.
9 (b) If, before the expiration of the time prescribed in subdivision
10 one or paragraph (a) of this subdivision for the assessment of the
11 liability, the commissioner of finance and the transferee have both
12 consented in writing to its assessment after such time, the liability
13 may be assessed at any time prior to the expiration of the period agreed
14 upon. The period so agreed upon may be extended by subsequent agree-
15 ments in writing made before the expiration of the period previously
16 agreed upon. For the purpose of determining the period of limitation on
17 credit or refund to the transferee or overpayments of tax made by such
18 transferee or overpayments of tax made by the transferor as to which the
19 transferee is legally entitled to credit or refund, such agreement and
20 any extension thereof shall be deemed an agreement and extension thereof
21 referred to in subdivision two of section 11-678 of this subchapter. If
22 the agreement is executed after the expiration of the period of limita-
23 tion for assessment against the original taxpayer, then in applying the
24 limitations under subdivision two of section 11-678 of this subchapter
25 on the amount of the credit or refund, the period specified in subdivi-
26 sion one of section 11-678 of this subchapter shall be increased by the
27 period from the date of such expiration to the date of the agreement.
28 3. Period for assessment against certain transferors. For purposes of
29 this section, if any person is deceased or is a corporation which has
30 terminated its existence, the period of limitation for assessment
31 against such person or corporation shall be the period that would be in
32 effect had death or termination of existence not occurred.
33 4. Evidence. The commissioner of finance shall use his or her powers
34 to make available to the transferee evidence necessary to enable the
35 transferee to determine the liability of the original taxpayer and of
36 any preceding transferees, but without undue hardship to the original
37 taxpayer or preceding transferee. See subdivision five of section
38 11-680 of this subchapter for rule as to burden of proof.
39 § 11-685 Jeopardy assessments. 1. Authority for making. If the commis-
40 sioner of finance believes that the assessment or collection of a defi-
41 ciency will be jeopardized by delay, the commissioner shall, notwith-
42 standing the provisions of section 11-672 of this subchapter immediately
43 assess such deficiency, together with all interest, penalties and addi-
44 tions to tax provided for by law, and notice and demand shall be made by
45 the commissioner of finance for the payment thereof.
46 2. Notice of deficiency. If the jeopardy assessment is made before any
47 notice in respect of the tax to which the jeopardy assessment relates
48 has been mailed under section 11-672 of this subchapter, then the
49 commissioner of finance shall mail a notice under such section within
50 sixty days after the making of the assessment.
51 3. Amount assessable before decision of the tax appeals tribunal. The
52 jeopardy assessment may be made in respect of a deficiency greater or
53 less than that of which notice is mailed to the taxpayer and whether or
54 not the taxpayer has theretofore filed a petition with the tax appeals
55 tribunal. The commissioner of finance may, at any time before tax
56 appeals tribunal renders its decision, abate such assessment, or any
S. 8578 783
1 unpaid portion thereof, to the extent that the commissioner believes the
2 assessment to be excessive in amount. The tax appeals tribunal may in
3 its decision redetermine the entire amount of the deficiency and of all
4 amounts assessed at the same time in connection therewith.
5 4. Amounts assessable after decision of the tax appeals tribunal. If
6 the jeopardy assessment is made after the decision of the tax appeals
7 tribunal is rendered, such assessment may be made only in respect of the
8 deficiency determined by the tax appeals tribunal in its decision.
9 5. Expiration of right to assess. A jeopardy assessment may not be
10 made after the decision of the tax appeals tribunal has become final or
11 after the taxpayer has made an application for review of the decision of
12 the tax appeals tribunal.
13 6. Collection of unpaid amounts. When a petition has been filed with
14 the tax appeals tribunal and when the amount which should have been
15 assessed has been determined by a decision of the tax appeals tribunal
16 which has become final, then any unpaid portion, the collection of which
17 has been stayed by bond, shall be collected as part of the tax upon
18 notice and demand from the commissioner of finance, and any remaining
19 portion of the assessment shall be abated. If the amount already
20 collected exceeds the amount determined as the amount which should have
21 been assessed, such excess shall be credited or refunded to the taxpayer
22 as provided in section 11-677 of this subchapter without the filing of
23 claim therefor. If the amount determined as the amount which should
24 have been assessed is greater than the amount actually assessed, then
25 the difference shall be assessed and shall be collected as part of the
26 tax upon notice and demand from the tax appeals tribunal.
27 7. Abatement if jeopardy does not exist. The commissioner of finance
28 may abate the jeopardy assessment if the commissioner finds that jeopar-
29 dy does not exist. Such abatement may not be made after a decision of
30 the tax appeals tribunal in respect of the deficiency has been rendered
31 or, if no petition is filed with the tax appeals tribunal, after the
32 expiration of the period for filing such petition. The period of limita-
33 tion on the making of assessments and levy or a proceeding for
34 collection, in respect of any deficiency, shall be determined as if the
35 jeopardy assessment so abated had not been made, except that the running
36 of such period shall in any event be suspended for the period from the
37 date of such jeopardy assessment until the expiration of the tenth day
38 after the day on which such jeopardy assessment is abated.
39 8. Bond to stay collection. The collection of the whole or any amount
40 of any jeopardy assessment may be stayed by filing with the commissioner
41 of finance, within such time as may be fixed by regulation, a bond in an
42 amount equal to the amount as to which the stay is desired, conditioned
43 upon the payment of the amount, together with interest thereon, the
44 collection of which is stayed at the time of which, but for the making
45 of the jeopardy assessment, such amount would be due. Upon the filing
46 of the bond the collection of so much of the amount assessed as is
47 covered by the bond shall be stayed. The taxpayer shall have the right
48 to waive such stay at any time in respect of the whole or any part of
49 the amount covered by the bond, and if as a result of such waiver any
50 part of the amount covered by the bond is paid, then the bond shall at
51 the request of the taxpayer, be proportionately reduced. If any portion
52 of the jeopardy assessment is abated, or if a notice of deficiency under
53 section 11-672 of this subchapter is mailed to the taxpayer in a lesser
54 amount, the bond shall, at the request of the taxpayer, be proportion-
55 ately reduced.
S. 8578 784
1 9. Petition to tax appeals tribunal. If the bond is given before the
2 taxpayer has filed its petition under section 11-680 of this subchapter,
3 the bond shall contain a further condition that if a petition is not
4 filed within the period provided in such section, then the amount, the
5 collection of which is stayed by the bond, will be paid on notice and
6 demand at any time after the expiration of such period, together with
7 interest thereon from the date of the jeopardy notice and demand to the
8 date of notice and demand under this subdivision. The bond shall be
9 conditioned upon the payment of so much of such assessment, collection
10 of which is stayed by the bond, as is not abated by a decision of the
11 tax appeals tribunal which has become final. If the tax appeals tribunal
12 determines that the amount assessed is greater than the amount which
13 should have been assessed, then the bond shall, at the request of the
14 taxpayer, be proportionately reduced when the decision of the tax
15 appeals tribunal is rendered.
16 10. Stay of sale of seized property pending tax appeals tribunal's
17 decision. Where a jeopardy assessment is made, the property seized for
18 the collection of the tax shall not be sold:
19 (a) if subdivision two of this section is applicable, prior to the
20 issuance of the notice of deficiency and the expiration of the time
21 provided in section 11-680 of this subchapter for filing a petition with
22 the tax appeals tribunal, and
23 (b) if a petition is filed with the tax appeals tribunal, whether
24 before or after the making of such jeopardy assessment, prior to the
25 expiration of the period during which the assessment of the deficiency
26 would be prohibited if subdivision one of this section were not applica-
27 ble.
28 Such property may be sold if the taxpayer consents to the sale, or if
29 the commissioner of finance determines that the expenses of conservation
30 and maintenance will greatly reduce the net proceeds, or if the property
31 is perishable.
32 11. Interest. For the purpose of subdivision one of section 11-675 of
33 this subchapter, the last date prescribed for payment shall be deter-
34 mined without regard to any notice and demand for payment issued under
35 this section prior to the last date otherwise prescribed for such
36 payment.
37 12. Early termination of taxable year. If the commissioner of finance
38 finds that a taxpayer designs quickly to remove its property from this
39 state, or to conceal its property therein, or to do any other act tend-
40 ing to prejudice or to render wholly or partly ineffectual proceedings
41 to collect the tax for the current or the preceding taxable year unless
42 such proceedings be brought without delay, the commissioner of finance
43 shall declare the taxable period for such taxpayer immediately termi-
44 nated, and shall cause notice of such finding and declaration to be
45 given the taxpayer, together with a demand for immediate payment of the
46 tax for the taxable period so declared terminated and of the tax for the
47 preceding taxable year so much of such tax as is unpaid, whether or not
48 the time otherwise allowed by law for filing return and paying the tax
49 has expired; and such taxes shall thereupon become immediately due and
50 payable. In any proceeding brought to enforce payment of taxes made due
51 and payable by virtue of the provisions of this subdivision, the finding
52 of the commissioner of finance made as herein provided, whether made
53 after notice to the taxpayer or not, shall be for all purposes presump-
54 tive evidence of jeopardy.
55 13. Reopening of taxable period. Notwithstanding the termination of
56 the taxable period of the taxpayer by the commissioner of finance, as
S. 8578 785
1 provided in subdivision twelve of this section, the commissioner of
2 finance may reopen such taxable period each time the taxpayer is found
3 by the commissioner of finance to have received income, within the
4 current taxable year, since the termination of such period. A taxable
5 period so terminated by the commissioner of finance may be reopened by
6 the taxpayer if it files with the commissioner of finance a true and
7 accurate return under any of the named subchapters for such taxable
8 period, together with such other information as the commissioner of
9 finance may by regulations prescribe.
10 14. Furnishing of bond where taxable year is closed by the commission-
11 er of finance. Payment of taxes shall not be enforced by any proceedings
12 under the provisions of subdivision twelve of this section prior to the
13 expiration of the time otherwise allowed for paying such taxes if the
14 taxpayer furnishes, under regulations prescribed by the commissioner of
15 finance, a bond to insure the timely making of returns with respect to,
16 and payment of, such taxes or any taxes for prior years.
17 § 11-686 Criminal penalties; cross-reference. For criminal penalties,
18 see chapter forty of this title.
19 § 11-687 General powers of the commissioner of finance. 1. General.
20 The commissioner of finance shall administer and enforce the tax imposed
21 by the named subchapters and the commissioner is authorized to make such
22 rules and regulations, and to require such facts and information to be
23 reported, as the commissioner may deem necessary to enforce the
24 provisions of this subchapter and of the named subchapters; and the
25 commissioner may delegate the commissioner's powers and functions under
26 all subchapters of this chapter to one of the commissioner's deputies or
27 to any employee or employees of his or her department.
28 2. Examination of books and witnesses. The commissioner of finance,
29 for the purpose of ascertaining the correctness of any return, or for
30 the purpose of making an estimate of tax liability of any corporation,
31 shall have power to examine or to cause to have examined, by any agent
32 or representative designated by the commissioner for that purpose, any
33 books, papers, records or memoranda bearing upon the matters required to
34 be included in the return, and may require the attendance of the corpo-
35 ration rendering the return through any officer or employee of such
36 corporation, or the attendance of any other person having knowledge in
37 the premises, and may take testimony and require proof material for the
38 commissioner's information, with power to administer oaths to such
39 person or persons.
40 3. Abatement authority. The commissioner of finance, of the commis-
41 sioner's own motion, may abate any small unpaid balance of an assessment
42 of tax, or any liability in respect thereof, if the commissioner of
43 finance determines under uniform rules prescribed by the commissioner
44 that the administration and collection costs involved would not warrant
45 collection of the amount due. The commissioner may also abate, of his
46 or her own motion, the unpaid portion of the assessment of any tax or
47 any liability in respect thereof, which is excessive in amount, or is
48 assessed after the expiration of the period of limitation properly
49 applicable thereto, or is erroneously or illegally assessed. No claim
50 for abatement under this subdivision shall be filed by a taxpayer.
51 4. Special refund authority. Where no questions of fact or law are
52 involved and it appears from the records of the commissioner of finance
53 that any moneys have been erroneously or illegally collected from any
54 taxpayer or other person, or paid by such taxpayer or other person under
55 a mistake of facts, pursuant to the provisions of this subchapter or any
56 of the named subchapters, the commissioner of finance at anytime, with-
S. 8578 786
1 out regard to any period of limitations, shall have the power, upon
2 making a record of his or her reasons therefor in writing, to cause such
3 moneys so paid and being erroneously and illegally held to be refunded.
4 5. (a) Authority to set interest rates. The commissioner of finance
5 shall set the overpayment and underpayment rates of interest to be paid
6 pursuant to sections 11-606, 11-608, 11-645, 11-647, 11-656, 11-658,
7 11-675, 11-676, and 11-679 of this chapter, but if no such rate or rates
8 of interest are set, such overpayment rate shall be deemed to be set at
9 six percent per annum and such underpayment rate shall be deemed to be
10 set at seven and one-half percent per annum. Such overpayment and
11 underpayment rates shall be the rates prescribed in paragraph (b) of
12 this subdivision but the underpayment rate shall not be less than seven
13 and one-half percent per annum. Any such rates set by the commissioner
14 of finance shall apply to taxes, or any portion thereof, which remain or
15 become due or overpaid on or after the date on which such rates become
16 effective and shall apply only with respect to interest computed or
17 computable for periods or portions of periods occurring in the period
18 during which such rates are in effect.
19 (b) General rule. (A) Overpayment rate. The overpayment rate set under
20 this subdivision shall be the sum of (i) the federal short-term rate as
21 provided under paragraph (c) of this subdivision, plus (ii) two percent-
22 age points.
23 (B) Underpayment rate. The underpayment rate set under this subdivi-
24 sion shall be the sum of (i) the federal short-term rate as provided
25 under paragraph (c) of this subdivision, plus (ii) seven percentage
26 points.
27 (c) Federal short-term rate. For purposes of this subdivision:
28 (A) The federal short-term rate for any month shall be the federal
29 short-term rate determined by the United States secretary of the treas-
30 ury during such month in accordance with subsection (d) of section
31 twelve hundred seventy-four of the internal revenue code for use in
32 connection with section six thousand six hundred twenty-one of the
33 internal revenue code. Any such rate shall be rounded to the nearest
34 full percent, or, if a multiple of one-half of one percent, such rate
35 shall be increased to the next highest full percent.
36 (B) Period during which rate applies.
37 (i) In general. Except as provided in clause (ii) of this subpara-
38 graph, the federal short-term rate for the first month in each calendar
39 quarter shall apply during the first calendar quarter beginning after
40 such month.
41 (ii) Special rule for the month of September, nineteen hundred eight-
42 y-nine. The federal short-term rate for the month of April, nineteen
43 hundred eighty-nine shall apply with respect to setting the overpayment
44 and underpayment rates for the month of September, nineteen hundred
45 eighty-nine.
46 (d) Publication of interest rates. The commissioner of finance shall
47 cause to be published in the city record, and give other appropriate
48 general notice of, the interest rates to be set under this subdivision
49 no later than twenty days preceding the first day of the calendar quar-
50 ter during which such interest rates apply. The setting and publication
51 of such interest rates shall not be included within paragraph (a) of
52 subdivision five of section one thousand forty-one of the city charter
53 relating to the definition of a rule.
54 (e) Cross-reference. For provisions relating to the power of the
55 commissioner of finance to abate small amounts of interest, see subdivi-
56 sion three of this section.
S. 8578 787
1 6. In computing the amount of any interest required to be paid under
2 this subchapter or any of the named subchapters by the commissioner of
3 finance or by the taxpayer, or any other amount determined by reference
4 to such amount of interest, such interest and such amount shall be
5 compounded daily. The preceding sentence shall not apply for purposes of
6 computing the amount of any addition to tax for failure to pay estimated
7 tax under subdivision three of section 11-676 of this subchapter.
8 § 11-688 Secrecy required of official; penalty for violation. 1.
9 Except in accordance with proper judicial order or as otherwise provided
10 by law, it shall be unlawful for the commissioner of finance, the
11 department of finance of the city, any officer or employee of the
12 department of finance of the city, the tax appeals tribunal, any commis-
13 sioner or employee of such tribunal, any person who, pursuant to this
14 section, is permitted to inspect any report or return, or to whom any
15 information contained in any report or return is furnished, any person
16 engaged or retained by such department on an independent contract basis,
17 or any person who in any manner may acquire knowledge of the contents of
18 a report filed pursuant to this chapter, to divulge or make known in any
19 manner the amount of income or any particulars set forth or disclosed in
20 any report or return, under this chapter. The officers charged with the
21 custody of such reports and returns shall not be required to produce any
22 of them or evidence of anything contained in them in any action or
23 proceeding in any court, except on behalf of the city in an action or
24 proceeding involving the collection of a tax due under this chapter to
25 which the city is a party or a claimant, or on behalf of any party to
26 any action or proceeding under the provisions of this chapter when the
27 reports, returns or facts shown thereby are directly involved in such
28 action or proceeding, in any of which events the court may require the
29 production of, and may admit in evidence, so much of said reports or
30 returns or of facts shown thereby as are pertinent to the action or
31 proceeding, and no more. Nothing herein shall be construed to prohibit
32 the delivery to a taxpayer or its duly authorized representative of a
33 copy of any report filed by it, nor to prohibit the publication of
34 statistics so classified as to prevent the identification of particular
35 reports or returns and the items thereof, or the inspection by the
36 corporation counsel or other legal representatives of the city of the
37 report or return of any taxpayer which shall bring action to set aside
38 or review the tax based thereon, or against which an action or proceed-
39 ing under this chapter or under any local law of the city imposed as
40 authorized by the act authorizing the adoption of this chapter has been
41 recommended by the commissioner of finance or the corporation counsel or
42 has been instituted, or the inspection of the reports or returns of any
43 taxpayer by the duly designated officers or employees of the city for
44 purposes of an audit under this chapter or an audit authorized by the
45 act authorizing the adoption of this chapter; and nothing in this
46 subchapter or chapter eleven of this title shall be construed to prohib-
47 it the publication of the issuer's allocation percentage, as defined in
48 subparagraph one of paragraph (b) of subdivision three of section 11-604
49 of this chapter, of any corporation which may be required to be allo-
50 cated within the city for purposes of the tax imposed by any of the
51 named subchapters or chapter eleven of this title.
52 2. (a) Any officer or employee of the state or city who willfully
53 violates the provisions of subdivision one of this section shall be
54 dismissed from office and be incapable of holding any public office in
55 the city or this state for a period of five years thereafter.
S. 8578 788
1 (b) Cross-reference: For criminal penalties, see chapter forty of this
2 title.
3 3. Notwithstanding any provisions of this section, the commissioner of
4 finance may permit the secretary of the treasury of the United States or
5 his or her delegates, or the proper officer of this or any other state
6 charged with tax administration, or the authorized representative of
7 either such officer, to inspect the returns or reports filed under any
8 of the named subchapters, or may furnish to such officer or his or her
9 authorized representative an abstract of any such return or report or
10 supply information concerning an item contained in any such return or
11 report, or supply him or her with information concerning an item
12 contained in any such return or report, or disclosed by an investigation
13 of tax liability under any of the named subchapters, but such permission
14 shall be granted or such information furnished to such officer or his or
15 her representative only if the laws of the United States or of such
16 state, as the case may be, grant substantially similar privileges to the
17 commissioner of finance and such information is to be used for tax
18 purposes only; and provided further the commissioner of finance may
19 furnish to the secretary of the treasury of the United States or his or
20 her delegates or to the tax commission of the state of New York or its
21 delegates such returns or reports filed under any of the named subchap-
22 ters and other tax information, as he or she may consider proper, for
23 use in court actions or proceedings under the internal revenue code or
24 the tax law of the state of New York, whether civil or criminal, where a
25 written request therefor has been made to the commissioner of finance by
26 the secretary of the treasury or by such tax commission or by their
27 delegates, provided the laws of the United States or the laws of the
28 state of New York grant substantially similar powers to the secretary of
29 the treasury or his or her delegates or to such tax commission or its
30 delegates. Where the commissioner of finance has so authorized use of
31 returns, reports or other information in such actions or proceedings,
32 officers and employees of the department of finance may testify in such
33 actions or proceedings in respect to such returns, reports of other
34 information.
35 4. Notwithstanding the provisions of subdivision one of this section,
36 the commissioner of finance, in his or her discretion, may require or
37 permit any or all persons liable for any tax imposed by this chapter to
38 make payments on account of estimated tax and payment of any tax, penal-
39 ty or interest imposed by this chapter to banks, banking houses or trust
40 companies designated by the commissioner of finance and to file declara-
41 tions of estimated tax, applications for automatic extensions of time to
42 file reports, and reports with such banks, banking houses or trust
43 companies as agents of the commissioner of finance, in lieu of making
44 any such payment directly to the commissioner of finance. However, the
45 commissioner of finance shall designate only such banks, banking houses
46 or trust companies as are depositories or financial agents of the city.
47 5. This section shall be deemed a state statute for purposes of para-
48 graph (a) of subdivision two of section eighty-seven of the public offi-
49 cers law.
50 6. Notwithstanding anything in subdivision one of this section to the
51 contrary, if a taxpayer has petitioned the tax appeals tribunal for
52 administrative review as provided in section one hundred seventy of the
53 charter of the preceding municipality as it existed January first, nine-
54 teen hundred ninety-four, the commissioner of finance shall be author-
55 ized to present to the tribunal any report or return of such taxpayer,
56 or any information contained therein or relating thereto, which may be
S. 8578 789
1 material or relevant to the proceeding before the tribunal. The tax
2 appeals tribunal shall be authorized to publish a copy or a summary of
3 any decision rendered pursuant to section one hundred seventy-one of the
4 charter of the preceding municipality as it existed January first, nine-
5 teen hundred ninety-four.
6 7. Notwithstanding anything in subdivision one of this section, the
7 commissioner of finance may disclose to a taxpayer or a taxpayer's
8 related member, as defined in paragraph (n) of subdivision eight of
9 section 11-602, paragraph (n) of subdivision eight of section 11-652 or
10 paragraph one of subdivision (q) of section 11-641 of this chapter,
11 information relating to any royalty paid, incurred or received by such
12 taxpayer or related member to or from the other, including the treatment
13 of such payments by the taxpayer or the related member in any report or
14 return transmitted to the commissioner of finance under this title.
15 § 11-689 Disposition of revenues. All revenues resulting from the
16 imposition of the taxes under this chapter shall be paid into the treas-
17 ury of the city and shall be credited to and deposited in the general
18 fund of the city, but no part of such revenues may be expended unless
19 appropriated in the annual budget of the city.
20 § 11-690 Inconsistencies with other laws. If any provision of this
21 chapter is inconsistent with, in conflict with, or contrary to any other
22 provision of law, such provision of this chapter shall prevail over such
23 other provision and such other provision shall be deemed to have been
24 amended, superseded or repealed to the extent of such inconsistency,
25 conflict or contrariety.
26 CHAPTER 7
27 COMMERCIAL RENT OR OCCUPANCY TAX
28 § 11-701 Definitions. When used in this chapter the following terms
29 shall mean or include:
30 1. "Person." An individual, partnership, society, association, joint
31 stock company, corporation, estate, receiver, assignee, trustee or any
32 other person acting in a fiduciary capacity, whether appointed by a
33 court or otherwise, and any combination of individuals.
34 2. "Landlord." A person who grants the right to use or occupy premises
35 to any lessee, sublessee, licensee or concessionaire, whether or not
36 such person is the owner of the premises.
37 3. "Tenant." A person paying or required to pay rent for premises as a
38 lessee, sublessee, licensee or concessionaire.
39 4. "Premises." Any real property or part thereof, and any structure
40 thereon or space therein.
41 5. "Taxable premises." Any premises in the city occupied, used or
42 intended to be occupied or used for the purpose of carrying on or exer-
43 cising any trade, business, profession, vocation or commercial activity,
44 including any premises so used even though it is used solely for the
45 purpose of renting, or granting the right to occupy or use, the same
46 premises in whole or in part to tenants.
47 6. "Rent." The consideration paid or required to be paid by a tenant
48 for the use or occupancy of premises, valued in money, whether received
49 in money or otherwise, including all credits and property or services of
50 any kind and including any payment required to be made by a tenant on
51 behalf of his or her landlord for real estate taxes, water rents or
52 charges, sewer rents or any other expenses, including insurance, normal-
53 ly payable by a landlord who owns the realty other than expenses for the
54 improvement, repair or maintenance of the tenant's premises.
S. 8578 790
1 7. "Base rent." The rent paid for each taxable premises by a tenant to
2 his or her landlord for a period, less the amounts received by or due
3 such tenant for the same period from any tenant of any part of such
4 premises:
5 (i) as rent for premises which constitute taxable premises of such
6 tenant except where such tenant is exempt from tax thereon pursuant to
7 subdivision b or paragraph six of subdivision c of section 11-704 of
8 this chapter; provided, however, that for tax periods beginning on and
9 after June first, nineteen hundred eighty-five, rent received or due
10 from a tenant exempt from tax thereon pursuant to paragraph two of
11 subdivision b of section 11-704 of this chapter, as such paragraph two
12 was in effect immediately prior to its amendment by local law number
13 fifty-seven for the year nineteen hundred ninety-three, may be deducted
14 if such tenant occupies or uses the premises pursuant to a written
15 agreement made prior to June first, nineteen hundred eighty-four, the
16 terms and conditions of which have not been changed or amended; and
17 provided, further, that for tax periods beginning on and after June
18 first, nineteen hundred eighty-five, with respect to a tenant exempt
19 from tax pursuant to paragraph two of subdivision b of section 11-704 of
20 this chapter, as such paragraph two was in effect immediately prior to
21 its amendment by local law number fifty-seven for the year nineteen
22 hundred ninety-three, because of the reduction in base rent provided for
23 in subdivision h of section 11-704 of this chapter, rent received or due
24 from such tenant may be deducted if such tenant occupies or uses the
25 premises pursuant to a written agreement made prior to June first, nine-
26 teen hundred eighty-five, the terms and conditions of which have not
27 been changed or amended; and provided, further, that for tax periods
28 beginning on and after June first, nineteen hundred ninety-four, with
29 respect to a tenant exempt from tax pursuant to paragraph two of subdi-
30 vision b of section 11-704 of this chapter as a result of the amendment
31 of such paragraph two by local law number fifty-seven for the year nine-
32 teen hundred ninety-three, whether or not such exemption is due to the
33 reduction in base rent provided for in subdivision h of section 11-704
34 of this chapter, rent received or due from such tenant may be deducted
35 if such tenant occupies or uses the premises pursuant to a written
36 agreement made prior to June first, nineteen hundred ninety-three, the
37 terms and conditions of which have not been changed or amended; and
38 provided, further, that for tax periods beginning on and after July
39 twenty-ninth, nineteen hundred eighty-seven, with respect to a tenant
40 exempt from tax pursuant to paragraph two of subdivision b of section
41 11-704 of this chapter because of the reduction in base rent provided
42 for in subdivision f of section 11-704 of this chapter, rent received or
43 due from such tenant may be deducted; and provided, further, that,
44 notwithstanding anything in this paragraph to the contrary, for tax
45 periods beginning on and after June first, nineteen hundred ninety-five,
46 with respect to a tenant exempt from tax pursuant to paragraph two of
47 subdivision b of section 11-704 of this chapter, rents received or due
48 from such tenant may be deducted;
49 (ii) as rent for premises which do not constitute taxable premises and
50 which are used by such tenant as lodging or residential premises,
51 including such residential premises in hotels, apartment hotels or lodg-
52 ing houses as defined in former title V of chapter forty-six of the code
53 of the preceding municipality;
54 (iii) who is exempt from tax under subdivision a of section 11-704 of
55 this chapter;
S. 8578 791
1 (iv) as rent for premises which do not constitute taxable premises
2 where such rent is, or to the extent that such rent is, deductible from
3 the base rent of such tenant by reason of paragraph five of subdivision
4 c of section 11-704 of this chapter; and
5 (v) as rent for premises which do not constitute taxable premises,
6 pursuant to a common law relationship of landlord and tenant, notwith-
7 standing the definition given to those terms by paragraphs two and three
8 of this section, except where it is received as rent, whether or not
9 such landlord-tenant relationship exists, for premises which are occu-
10 pied as or constitute:
11 (a) a locker, safe deposit box or beach cabana;
12 (b) storage space in part of a warehouse or in part of any other
13 structure or area in which goods are stored;
14 (c) garage space or parking space in any part of a garage, of a park-
15 ing lot or of a parking area where the entire garage, entire parking lot
16 or entire parking area accommodates more than two motor vehicles;
17 (d) an occupancy of a type which customarily has not been the subject
18 of such a common law relationship of landlord and tenant. Nothing
19 contained in this chapter shall be construed to permit a tenant to
20 deduct the same rent from his or her base rent more than once.
21 8. "Premises used for railroad transportation purposes." The portion
22 of any premises of any person actually operating a railroad, used by
23 such person for normal or necessary railroad transportation purposes.
24 The words normal or necessary railroad transportation purposes, as used
25 in this definition, shall not include any activities which are normally
26 carried on by persons not engaged in furnishing railroad transportation
27 service such as the operation of retail stores, barber shops, restau-
28 rants, theatres, hotels, and newsstands; nor shall such words include
29 any activities which are not deemed transportation purposes under
30 sections four hundred eighty-nine-b and four hundred eighty-nine-m of
31 the real property tax law.
32 9. "Premises used for air transportation purposes." The portion of any
33 premises, located within an airport or within an air transportation
34 terminal shared by more than one air line, of any person actually oper-
35 ating an air line as a common carrier, used by such person for normal or
36 necessary air transportation purposes. The words normal or necessary air
37 transportation purposes, as used in this definition, shall not include
38 any activities which are normally carried on by persons not engaged in
39 furnishing air transportation service such as the operation of retail
40 stores, barber shops, restaurants, theatres, hotels and newsstands.
41 10. "Return." Any return filed or required to be filed as herein
42 provided other than an information return.
43 11. "Tax period." The period for which any return is required to be
44 filed under this chapter.
45 12. "Tax year." June first of any calendar year through May thirty-
46 first of the following calendar year.
47 13. "Day." A calendar day or any part thereof.
48 14. "City." The city of Staten Island.
49 15. "Commissioner of finance." The commissioner of finance of the
50 city.
51 16. "Comptroller." The comptroller of the city.
52 17. "Dramatic or musical arts performance." A performance or repe-
53 tition thereof in a theatre, opera house or concert hall of a live
54 dramatic performance, whether or not musical in part. The performance
55 encompassed by this definition shall include so-called legitimate thea-
56 tre plays, musical comedies and operettas. They shall not include
S. 8578 792
1 circuses, ice skating shows or aqua shows; they shall not include
2 performances of any kind in a roof garden, cabaret or other similar
3 place; and they shall not include radio or television performances,
4 whether or not such performances are prerecorded for later broadcast.
5 18. "Premises used for omnibus transportation purposes." The portion
6 of any premises located within a passenger terminal of any person actu-
7 ally operating an omnibus line or route as a common carrier, used by
8 such person for normal or necessary omnibus line or route transportation
9 purposes. The words normal or necessary omnibus line or route transpor-
10 tation purposes, as used in this definition, shall not include any
11 activities, which are normally carried on by persons not engaged in
12 furnishing omnibus line or route transportation services such as the
13 operation of retail stores, barber shops, restaurants, theatres, hotels
14 and newsstands.
15 19. "Tax appeals tribunal." The tax appeals tribunal established by
16 section one hundred sixty-eight of the charter of the preceding munici-
17 pality as it existed January first, nineteen hundred ninety-four.
18 20. "Premises used for retail sales purposes." Premises primarily used
19 for the selling or otherwise disposing or furnishing of tangible goods
20 directly to the ultimate user or consumer.
21 § 11-702 Imposition of tax. a. (1) For each tax year commencing on
22 or after June first, nineteen hundred sixty-three and ending on or
23 before May thirty-first, nineteen hundred seventy, every tenant shall
24 pay a tax of two and one-half per centum of his or her base rent for
25 such tax year where his or her base rent is not in excess of twenty-five
26 hundred dollars per year or where his or her base rent is for a period
27 of less than one year and would not exceed twenty-five hundred dollars
28 for a year if it were paid on an equivalent basis for an entire year or
29 a tax of five per centum of his or her base rent for such tax year where
30 his or her base rent is in excess of twenty-five hundred dollars per
31 year or where his or her base rent is for a period of less than one year
32 and would exceed twenty-five hundred dollars a year if it were paid on
33 an equivalent basis for an entire year.
34 (2) For each tax year commencing on or after, June first, nineteen
35 hundred seventy, every tenant shall pay a tax at the rates shown in the
36 following table:
37 When the annual rent is: But not more than: The rate shall be:
38 0..................... $2,499 2 1/2% of the rent
39 $ 2,500 or over....... $4,999 5% of the rent
40 $ 5,000 or over....... $7,999 6 1/4% of the rent
41 $ 8,000 or over....... $10,999 7% of the rent
42 $11,000 and over...... 7 1/2% of the rent
43 For tax years embraced within the period beginning after May thirty-
44 first, nineteen hundred seventy-seven and ending May thirty-first, nine-
45 teen hundred eighty, the tax shall be imposed at rates equal to ninety
46 percent of the rates shown in such table.
47 For tax years beginning after May thirty-first, nineteen hundred
48 eighty and ending May thirty-first, nineteen hundred eighty-one, the tax
49 shall be imposed at rates equal to eighty-five percent of the rates
50 shown in such table.
51 For tax years beginning after May thirty-first, nineteen hundred
52 eighty-one, the tax shall be imposed at rates equal to eighty percent of
53 the rates shown in such table.
54 Where the rent is for a period of less than one year, the rate shall
55 be determined by assuming that the rent is on an equivalent basis for
56 the entire year.
S. 8578 793
1 b. Nothing contained in this chapter shall be deemed to require
2 payment of a double or multiple tax pursuant to this chapter on any part
3 of any taxable premises.
4 c. Where a tenant pays an undivided rent for premises used both for
5 residential purposes and as taxable premises, the tax shall be applica-
6 ble to so much of the rent as is ascribable to the portion of such prem-
7 ises used as taxable premises. Where, however, the rent ascribable to
8 so much of such premises as is used as taxable premises does not exceed
9 fifty dollars a month, such rent shall be excluded from such tenant's
10 base rent. Nothing contained in this subdivision shall be construed as
11 indicating an intent to exclude any base rent from the tax imposed by
12 this chapter merely because it is paid as part of an undivided rent for
13 premises which are only partially used as taxable premises.
14 d. The tax imposed by this chapter shall be in addition to any and
15 all other taxes including the public housing tax imposed by chapter ten
16 of this title.
17 e. Nothing contained in this section shall be construed as permitting
18 base rent of a tenant for one taxable premises to be reduced by deduct-
19 ing rents received by him or her for another taxable premises of which
20 he or she is also a tenant.
21 § 11-703 Presumptions and burden of proof. a. For the purpose of
22 the proper administration of this chapter and to prevent evasion of the
23 tax hereby imposed it shall be presumed that all premises are taxable
24 premises and that all rent paid or required to be paid by a tenant is
25 base rent until the contrary is established, and the burden of proving
26 that such presumptive base rent or any portion thereof is not included
27 in the measure of the tax imposed by this chapter shall be on the
28 tenant.
29 b. Where a tenant uses premises both for residential purposes and as
30 taxable premises and the tenant pays an undivided rent for the premises
31 so used, it shall be conclusively presumed against such tenant that the
32 rent ascribable to so much of such premises as is used as taxable prem-
33 ises shall be the amount which such tenant deducts as rent for such
34 premises in determining the tenant's federal income tax, as reduced by
35 any disallowance of such deduction which is not being contested, which
36 is fairly attributable to the tax period or tax year.
37 § 11-704 Exemptions and deductions from base rent. a. The following
38 shall be exempt from the payment of the tax imposed by this chapter:
39 1. The state of New York, or any public corporation, including a
40 public corporation created pursuant to agreement or compact with another
41 state or the Dominion of Canada, improvement district or other political
42 subdivision of the state;
43 2. The United States of America, insofar as it is immune from taxa-
44 tion;
45 3. The United Nations or other world-wide international organizations
46 of which the United States of America is a member;
47 4. Any corporation, or association, or trust, or community chest, fund
48 or foundation, organized and operated exclusively for religious, chari-
49 table, or educational purposes, or for the prevention of cruelty to
50 children or animals, and no part of the net earnings of which inures to
51 the benefit of any private shareholder or individual and no substantial
52 part of the activities of which is carrying on propaganda, or otherwise
53 attempting to influence legislation; provided, however, that nothing in
54 this paragraph shall include an organization operated for the primary
55 purpose of carrying on a trade or business for profit, whether or not
S. 8578 794
1 all of its profits are payable to one or more organizations described in
2 this paragraph;
3 5. Any tenant who would be subject to taxes under this chapter aggre-
4 gating not more than one dollar for a tax year with respect to all taxa-
5 ble premises used by the tenant; and
6 6. Any tenant located in the "World Trade Center Area," as defined as
7 follows: the area in the borough of Manhattan bounded by Church Street
8 on the east starting at the intersection of Liberty Street and Church
9 Street; running northerly along the center line of Church Street to the
10 intersection of Church Street and Vesey Street; running westerly along
11 the center line of Vesey Street to the intersection of Vesey Street and
12 West Broadway; running northerly along the center line of West Broadway
13 to the intersection of West Broadway and Barclay Street; running wester-
14 ly along the center line of Barclay Street to the intersection of
15 Barclay Street and Washington Street; running southerly along the center
16 line of Washington Street to the intersection of Washington Street and
17 Vesey Street; running westerly along the center line of Vesey Street to
18 the intersection of Vesey Street and West Street; running southerly
19 along the center line of West Street to the intersection of West Street
20 and Liberty Street; running easterly along the center line of Liberty
21 Street to the intersection of Liberty Street and Washington Street;
22 running southerly along the center line of Washington Street to the
23 intersection of Washington Street and Albany Street; running easterly
24 along the center line of Albany Street to the intersection of Albany
25 Street and Greenwich Street; running northerly along the center line of
26 Greenwich Street to Liberty Street; and running easterly along the
27 center line of Liberty Street to the intersection of Liberty Street and
28 Church Street.
29 b. 1. A tenant who uses premises for no more than fourteen days in a
30 tax year whether or not consecutive, where his or her agreement with his
31 or her landlord does not require him or her to pay rent for a longer
32 period shall be exempt from the payment of the tax imposed by this chap-
33 ter in respect to the rent paid by him or her for such premises.
34 2. A tenant whose base rent, (i) for tax years beginning on or after
35 June first, nineteen hundred eighty-one and ending on or before May
36 thirty-first, nineteen hundred eighty-four, is not in excess of four
37 thousand nine hundred ninety-nine dollars per year, (ii) for the tax
38 year beginning June first, nineteen hundred eighty-four and ending May
39 thirty-first, nineteen hundred eighty-five, is not in excess of seven
40 thousand nine hundred ninety-nine dollars per year, (iii) for tax years
41 beginning on or after June first, nineteen hundred eighty-five and
42 ending on or before May thirty-first, nineteen hundred ninety-four, is
43 not in excess of ten thousand nine hundred ninety-nine dollars per year,
44 (iv) for the tax year beginning June first, nineteen hundred ninety-four
45 and ending May thirty-first, nineteen hundred ninety-five, is not in
46 excess of twenty thousand nine hundred ninety-nine dollars per year, (v)
47 for the tax year beginning June first, nineteen hundred ninety-five and
48 ending May thirty-first, nineteen hundred ninety-six, is not in excess
49 of thirty thousand nine hundred ninety-nine dollars per year, (vi) for
50 the tax year beginning June first, nineteen hundred ninety-six and
51 ending May thirty-first, nineteen hundred ninety-seven, is not in excess
52 of thirty-nine thousand nine hundred ninety-nine dollars per year, (vii)
53 for tax years beginning on or after June first, nineteen hundred nine-
54 ty-seven and ending on or before May thirty-first, two thousand, is not
55 in excess of ninety-nine thousand nine hundred ninety-nine dollars per
56 year, calculated without regard to any reduction in base rent allowed by
S. 8578 795
1 paragraph two of subdivision h of this section, (viii) for the period
2 beginning June first, two thousand and ending November thirtieth, two
3 thousand, is not in excess of ninety-nine thousand nine hundred ninety-
4 nine dollars per year, calculated without regard to any reduction in
5 base rent allowed by paragraph two of subdivision h of this section,
6 (ix) for the period beginning December first, two thousand and ending
7 May thirty-first, two thousand one, is not in excess of one hundred
8 forty-nine thousand nine hundred ninety-nine dollars per year, calcu-
9 lated without regard to any reduction in base rent allowed by paragraph
10 two of subdivision h of this section, and (x) for tax years beginning on
11 or after June first, two thousand one, is not in excess of two hundred
12 forty-nine thousand nine hundred ninety-nine dollars per year, calcu-
13 lated without regard to any reduction in base rent allowed by paragraph
14 two of subdivision h of this section, shall be exempt from the payment
15 of the tax imposed by this chapter with respect to such rent, provided,
16 however, that where the base rent of such tenant is for a period of less
17 than one year, such base rent shall, for purposes of this paragraph, be
18 determined as if it had been on an equivalent basis for the entire year;
19 and provided, further, that for purposes of subparagraphs (viii) and
20 (ix) of this paragraph, base rent for the period specified in each of
21 such subparagraphs shall be separately annualized as if it had been on
22 an equivalent basis for an entire year, irrespective of the actual base
23 rent for the tax year including the period specified in such subpara-
24 graph. Provided, however, (xi) a tenant whose base rent for the tax year
25 beginning June first, nineteen hundred eighty-four and ending May thir-
26 ty-first, nineteen hundred eighty-five, is at least eight thousand
27 dollars per year, but not in excess of ten thousand nine hundred nine-
28 ty-nine dollars per year, shall be exempt from the payment of the tax
29 imposed by this chapter with respect to such rent for the period begin-
30 ning December first, nineteen hundred eighty-four and ending May thir-
31 ty-first, nineteen hundred eighty-five, and (xii) a tenant whose base
32 rent for the tax year beginning June first, nineteen hundred ninety-five
33 and ending May thirty-first, nineteen hundred ninety-six, is at least
34 thirty-one thousand dollars per year, but not in excess of thirty-nine
35 thousand nine hundred ninety-nine dollars per year, shall be exempt from
36 the payment of the tax imposed by this chapter with respect to such rent
37 for the period beginning September first, nineteen hundred ninety-five
38 and ending May thirty-first, nineteen hundred ninety-six.
39 c. Base rent shall be reduced by the amount of the taxpayer's rent
40 for, or reasonably ascribable to, the taxpayer's own use of the prem-
41 ises:
42 1. As premises used for railroad transportation purposes.
43 2. As premises used for air transportation purposes.
44 3. As piers insofar as such premises are used in interstate or foreign
45 commerce.
46 4. Which are located in, upon, above or under any public street, high-
47 way or other public place, and which are defined as special franchise
48 property in the real property tax law.
49 5. Which are taxed pursuant to subchapter one of chapter twenty of
50 this title to the extent that such premises are subject to, and during
51 the period that they are subject to, such tax.
52 6. Which are taxed pursuant to subdivision b or c of section 11-1005
53 of this title.
54 7. Which are advertising signs, advertising space, vending machines or
55 newsstands within or attached to stations, platforms, stairways,
56 entranceways, passageways, mezzanines or tracks of a rapid transit
S. 8578 796
1 subway or elevated railroad operated by the New York city transit
2 authority when the rent of the tenant or of the tenant's landlord is
3 payable to such authority.
4 8. As premises used for omnibus transportation purposes.
5 9. As premises used for retail sales purposes where such premises are
6 located in the area in the borough of Manhattan bounded by Murray Street
7 on the north starting at the intersection of West Street and Murray
8 Street; running easterly along the center line of Murray Street,
9 connecting through City Hall Park with the center line of Frankfort
10 Street and running easterly along the center lines of Frankfort and
11 Dover Streets to the intersection of Dover Street and South Street;
12 running southerly along the center line of South Street to Peter Minuit
13 Plaza; connecting through Peter Minuit Plaza to the center line of State
14 Street and running northwesterly along the center line of State Street
15 to the intersection of State Street and Battery Place; running westerly
16 along the center line of Battery Place to the intersection of Battery
17 Place and West Street; and running northerly along the center line of
18 West Street to the intersection of West Street and Murray Street. Any
19 tax lot which is partly located inside such area shall be deemed to be
20 entirely located inside such area.
21 d. A tenant who uses taxable premises for renting to others for resi-
22 dential purposes to the extent of seventy-five per centum or more of the
23 rentable floor space shall be exempt from the tax imposed by this chap-
24 ter in respect to the rent paid for such premises from the time that
25 construction thereof commences, provided, however, that this paragraph
26 shall not be applicable to hotels, apartment hotels or lodging houses as
27 defined in former title V of chapter forty-six of the code of the
28 preceding municipality.
29 e. (1) A tenant who uses taxable premises for a dramatic or musical
30 arts performance for less than four weeks where there is no indication
31 prior to or at the time that such performance commences that the
32 performance is intended to continue for less than four weeks shall be
33 exempt from the tax imposed by this chapter with respect to the rent
34 paid for such taxable premises.
35 (2) (i) Notwithstanding any other provision of law to the contrary, a
36 tenant who uses taxable premises for the production and performance of a
37 theatrical work shall be exempt from the tax imposed by this chapter
38 with respect to the rent paid for such taxable premises for a period not
39 exceeding fifty-two weeks beginning on the date that the production of
40 such theatrical work commences, provided, however, that this subpara-
41 graph shall not apply to any theatrical work the production of which
42 commenced prior to June first, nineteen hundred ninety-five.
43 (ii) For purposes of this paragraph, the term "theatrical work" shall
44 mean a performance or repetition thereof in a theater of a live dramatic
45 performance, whether or not musical in part, that contains sustained
46 plots or recognizable thematic material, including so-called legitimate
47 theater plays or musicals, dramas, melodramas, comedies, compilations,
48 farces or reviews, provided that such performance is intended to be open
49 to the public for at least two weeks. The term "theatrical work" shall
50 not include performances of any kind in a roof garden, cabaret or simi-
51 lar place, circuses, ice skating shows, aqua shows, variety shows, magic
52 shows, animal acts, concerts, industrial shows or similar performances,
53 or radio or television performances, whether or not such performances
54 are pre-recorded for later broadcast.
55 f. 1. A tenant who is an eligible business and has obtained the
56 certifications required by paragraph four of this subdivision shall be
S. 8578 797
1 permitted to reduce his or her base rent for particular premises to
2 which he or she has relocated by an amount determined by multiplying
3 such base rent by a fraction the numerator of which is the number of
4 eligible aggregate employment shares maintained by such tenant with
5 respect to such premises in the tax year for which such tenant claims
6 the reduction and the denominator of which is a number equal to the
7 number of aggregate employment shares maintained by such tenant in such
8 premises in the tax year for which such tenant claims the reduction
9 allowed by this subdivision, provided, however, that such denominator
10 shall not exceed the highest number of aggregate employment shares main-
11 tained by such tenant in such premises in any of the tax years described
12 below which commence prior to or concurrently with the tax year for
13 which such tenant claims the reduction allowed by this subdivision: (i)
14 the tax year during which such tenant relocates to such particular prem-
15 ises; and (ii) each of the three tax years immediately succeeding the
16 tax year during which such tenant relocates to such premises. Base rent
17 for a particular premises may be reduced as provided in this subdivision
18 for the tax year during which the tenant relocates to such premises and
19 for any of the twelve immediately succeeding tax years during which the
20 tenant maintains eligible aggregate employment shares with respect to
21 such premises, provided, however, that there shall be no such reduction
22 with respect to base rent for any part of the tax year preceding the
23 date of relocation to such premises, and provided, further, however, in
24 the twelfth succeeding tax year there shall be a reduction only with
25 respect to base rent for the period, commencing on the first day of such
26 tax year, equal to the difference between the total number of days in
27 the tax year of relocation and the number of days in such tax year of
28 relocation commencing with and following the date of relocation, and
29 provided, further, that there shall be no such reduction with respect to
30 premises used for retail activity or hotel services.
31 2. (i) For purposes of this subdivision, the terms "eligible area,"
32 "eligible aggregate employment shares," "relocate," "retail activity"
33 and "hotel services" shall have the meanings ascribed by section 22-621
34 of the code of the preceding municipality, provided that whenever the
35 term "taxable year " appears in such section 22-621, such term shall be
36 read as "tax year," as the term "tax year" is defined in subdivision
37 twelve of section 11-701 of this chapter except when the taxable year
38 referred to is the taxable year immediately preceding the taxable year
39 during which such tenant relocates.
40 (ii) For purposes of this subdivision, the term "eligible business"
41 shall have the meaning ascribed by section 22-621 of the code of the
42 preceding municipality, provided that such term shall in addition
43 include any person subject to a tax imposed under subchapter four of
44 chapter six of this title and any person who is an insurance corporation
45 as defined in section one thousand five hundred of the tax law, which:
46 (A) has been conducting substantial business operations at one or more
47 business locations outside the eligible area for the twenty-four consec-
48 utive months immediately preceding the taxable year during which such
49 eligible business relocates; and (B) on or after May twenty-seventh,
50 nineteen hundred eighty-seven relocates all or part of such business
51 operations; and (C) on or after May twenty-seventh, nineteen hundred
52 eighty-seven first enters into a lease for the premises to which it
53 relocates or a parcel on which will be constructed such premises.
54 3. The reduction allowed by this subdivision may be claimed on an
55 estimated basis on the returns filed for the tax periods ending on the
56 last days of August, November and February of each year if, and to the
S. 8578 798
1 extent, permitted by regulations promulgated by the commissioner of
2 finance.
3 4. No tenant shall be authorized to receive a reduction in base rent
4 subject to tax under the provisions of this subdivision, until the prem-
5 ises with respect to which it is claiming a reduction in base rent meet
6 the requirements in the definition of eligible premises and until it has
7 obtained a certification of eligibility from the mayor or an agency
8 designated by the mayor, and an annual certification from the mayor or
9 an agency designated by the mayor as to the number of eligible aggregate
10 employment shares maintained by such tenant which may qualify for
11 obtaining a base rent reduction for the tenant's tax year. Any written
12 documentation submitted to the mayor or such agency or agencies in order
13 to obtain any such certification shall be deemed a written instrument
14 for purposes of section 175.00 of the penal law. Application fees for
15 such certifications shall be determined by the mayor or such agency or
16 agencies. No certification of eligibility shall be issued to an eligible
17 business on or after July first, two thousand three unless such business
18 meets the requirements of either subparagraph (a) or (b) of this para-
19 graph:
20 (a) (1) prior to such date such business has purchased, leased or
21 entered into a contract to purchase or lease particular premises or a
22 parcel on which will be constructed such premises or already owned such
23 premises or parcel;
24 (2) prior to such date improvements have been commenced on such prem-
25 ises or parcel which improvements will meet the requirements of subdivi-
26 sion (e) of section 22-621 of the code of the preceding municipality
27 relating to expenditures for improvements;
28 (3) prior to such date such business submits a preliminary application
29 for a certification of eligibility to such mayor or such agency or agen-
30 cies with respect to a proposed relocation to such particular premises;
31 and
32 (4) such business relocates to such particular premises not later than
33 thirty-six months or, in a case in which the expenditures made for the
34 improvements specified in clause two of this subparagraph are in excess
35 of fifty million dollars within seventy-two months from the date of
36 submission of such preliminary application; or
37 (b) (1) not later than June thirtieth, two thousand ten, such business
38 has purchased, leased or entered into a contract to purchase or lease
39 particular premises wholly contained in a building in which at least an
40 aggregate of forty per centum or two hundred thousand square feet,
41 whichever is less, of the nonresidential floor area of such building has
42 been purchased or leased by a business or businesses which meet or will
43 meet the requirements of subparagraph (a) of this paragraph with respect
44 to such floor area and which are or will become certified as eligible to
45 receive a credit under section 22-622 of the code of the preceding muni-
46 cipality with respect to such floor area;
47 (2) not later than June thirtieth, two thousand ten, such business
48 submits a preliminary application for a certification of eligibility to
49 such mayor or such agency or agencies with respect to a proposed relo-
50 cation to such particular premises; and
51 (3) not later than June thirtieth, two thousand ten, such business
52 relocates to such particular premises.
53 Any tenant subject to a tax imposed under chapter five, or subchapter
54 two, three or three-A of chapter six, of this title obtaining a certif-
55 ication of eligibility pursuant to subdivision (b) of section 22-622 of
S. 8578 799
1 the code of the preceding municipality shall be deemed to have obtained
2 the certification of eligibility required by this paragraph.
3 g. Whenever the rent paid by a tenant for his or her occupancy of
4 taxable premises is measured in whole or in part by the gross receipts
5 from the tenant's sales within such place, the tenant's rent, to the
6 extent paid on the basis of such gross receipts, shall be deemed not to
7 exceed fifteen percent of such gross receipts.
8 h. (1) In the case of any taxable premises located in the borough of
9 Manhattan north of the center line of ninety-sixth street or in the
10 boroughs of the Bronx, Brooklyn, Queens and Staten Island, the base rent
11 for such premises shall be reduced by ten percent for the period begin-
12 ning on January first, nineteen hundred eighty-six and ending May thir-
13 ty-first, nineteen hundred eighty-seven, by twenty percent for the peri-
14 od beginning June first, nineteen hundred eighty-seven and ending May
15 thirty-first, nineteen hundred eighty-nine, and by thirty percent for
16 the period beginning June first, nineteen hundred eighty-nine and ending
17 August thirty-first, nineteen hundred ninety-five, such reduction to be
18 made after all other exemptions and deductions authorized by this chap-
19 ter have been taken. For periods beginning September first, nineteen
20 hundred ninety-five and thereafter, a tenant of taxable premises located
21 in that part of the city specified in this paragraph shall be exempt
22 from the payment of the tax imposed by this chapter with respect to the
23 rent for such taxable premises.
24 (2) In the case of any taxable premises located in the borough of
25 Manhattan south of the center line of ninety-sixth street, the base rent
26 for such premises shall be reduced by (i) fifteen percent for the period
27 beginning March first, nineteen hundred ninety-six and ending May thir-
28 ty-first, nineteen hundred ninety-six, (ii) twenty-five percent for the
29 period beginning June first, nineteen hundred ninety-six and ending
30 August thirty-first, nineteen hundred ninety-eight, and (iii) thirty-
31 five percent for periods beginning September first, nineteen hundred
32 ninety-eight and thereafter, such reduction to be made after all other
33 exemptions and deductions authorized by this chapter have been taken.
34 i. (1) (a) (i) For purposes of, and to the extent relevant to, this
35 subdivision, the following terms shall, except to the extent hereinafter
36 modified, have the definitions assigned to such terms in section four
37 hundred ninety-nine-a of the real property tax law, and such definitions
38 shall apply with the same force and effect as if they had been set forth
39 in full in this subdivision: "abatement zone," "aggregate floor area,"
40 "applicant," "department of finance," "eligible building," "eligibility
41 period," "eligible premises," "expansion premises," "expansion tenant,"
42 "governmental agency," "landlord," "lease commencement date," "mixed-use
43 building," "new tenant," "person," "relocation area," "renewal tenant,"
44 "rent commencement date," "subtenant" and "tenant."
45 (ii) For purposes of this subdivision, the definitions assigned by
46 clause (i) of this subparagraph to the terms "eligible premises,"
47 "expansion tenant," "landlord," "new tenant" and "renewal tenant" shall
48 be modified as follows: (A) whenever the term "eligible building"
49 appears in any of such definitions, such term, notwithstanding anything
50 to the contrary, shall be deemed to include an eligible government-owned
51 building and, for purposes of subparagraph (b-2) of paragraph two of
52 subdivision i of this section, a non-residential or mixed-use building
53 located south of the center line of Canal Street in the borough of
54 Manhattan, regardless of when it received its initial certificate of
55 occupancy or initial temporary certificate of occupancy and regardless
56 of when it was constructed and shall be deemed to include an eligible
S. 8578 800
1 government-owned building; and (B) a reference in any of such defi-
2 nitions to a lease which meets the eligibility requirements of section
3 four hundred ninety-nine-c of the real property tax law shall be deemed
4 to include, in the case of a lease of premises in an eligible govern-
5 ment-owned building, a lease which meets the eligibility requirements of
6 paragraph four of this subdivision.
7 (b) When used in this subdivision, the following terms shall mean or
8 include: (i) "Eligible government-owned building." A building that
9 would be an eligible building, as such term is defined in section four
10 hundred ninety-nine-a of the real property tax law, but for the fact
11 that it is owned by a governmental agency.
12 (ii) "Eligible taxable premises." Taxable premises that are eligible
13 premises or expansion premises.
14 (iii) "Eligible tenant." A tenant with respect to whose lease of
15 eligible taxable premises there has been issued a certificate of abate-
16 ment or a certificate of eligibility.
17 (iv) "Base year." The twelve-month period that commences on the rent
18 commencement date.
19 (v) "Base rent for the base year." The total base rent for eligible
20 taxable premises for the base year, determined without regard to the
21 special reduction allowed by this subdivision.
22 (vi) "Certificate of abatement." The certificate of abatement issued
23 pursuant to section four hundred ninety-nine-d of the real property tax
24 law.
25 (vii) "Certificate of eligibility." The certificate of eligibility
26 issued pursuant to paragraph five of this subdivision.
27 (2) (a) An eligible tenant of eligible taxable premises shall be
28 allowed a special reduction in determining the taxable base rent for
29 such eligible taxable premises. Such special reduction shall be allowed
30 with respect to the rent for such eligible taxable premises for a period
31 not exceeding sixty months or, with respect to a lease commencing on or
32 after April first, nineteen hundred ninety-seven with an initial lease
33 term of less than five years, but not less than three years, for a peri-
34 od not exceeding thirty-six months, commencing on the rent commencement
35 date applicable to such eligible taxable premises, provided, however,
36 that in no event shall any special reduction be allowed for any period
37 beginning after March thirty-first, two thousand thirty-four. For
38 purposes of applying such special reduction, the base rent for the base
39 year shall, where necessary to determine the amount of the special
40 reduction allowable with respect to any number of months falling within
41 a tax period, be prorated by dividing the base rent for the base year by
42 twelve and multiplying the result by such number of months.
43 (a-1) Notwithstanding paragraph one of this subdivision, for purposes
44 of, and to the extent relevant to, the special reduction allowed by this
45 subparagraph, the definitions set forth in section four hundred ninety-
46 nine-aa of the real property tax law shall apply with the same force and
47 effect as if they had been set forth in full in this subdivision, except
48 as such definitions are hereinafter modified. An eligible tenant of
49 eligible taxable premises shall be allowed a special reduction in deter-
50 mining the taxable base rent for such eligible taxable premises,
51 provided, however, that (i) such eligible taxable premises are eligible
52 premises as defined in paragraph (c) of subdivision ten of section four
53 hundred ninety-nine-aa of the real property tax law, (ii) such eligible
54 taxable premises are located in the special garment center district
55 identified in the abatement zone defined in paragraph (c) of subdivision
56 two of section four hundred ninety-nine-aa of the real property tax law,
S. 8578 801
1 (iii) the lease for such eligible taxable premises commences within the
2 eligibility period applicable to the abatement zone defined in paragraph
3 (c) of subdivision two of section four hundred ninety-nine-aa of the
4 real property tax law, (iv) the lease for such eligible taxable premises
5 has an initial lease term of at least three years and (v) such special
6 reduction is limited to the benefit period, as defined in subdivision
7 five of section four hundred ninety-nine-aa of the real property tax
8 law, applicable to a lease commencing on or after July first, two thou-
9 sand five for eligible premises located within the abatement zone
10 defined in paragraph (c) of subdivision two of section four hundred
11 ninety-nine-aa of the real property tax law.
12 (a-2) The amount of the special reduction allowed by subparagraph
13 (a-1) of this paragraph shall be determined as follows: (i) For the
14 base year the amount of such special reduction shall be equal to the
15 base rent for the base year.
16 (ii) For the first through ninth twelve-month periods following the
17 base year the amount of such special reduction shall be equal to the
18 lesser of (A) the base rent for each such twelve-month period or (B) the
19 base rent for the base year.
20 (a-3) When used in this subdivision, for purposes of the special
21 reduction allowed by subparagraph (a-1) of this paragraph, the following
22 terms shall mean or include: (i) "Eligible taxable premises." Taxable
23 premises that are eligible premises or expansion premises.
24 (ii) "Eligible tenant." A tenant with respect to whose lease of eligi-
25 ble taxable premises there has been issued a certificate of abatement.
26 (iii) "Base year." The twelve-month period that commences on the rent
27 commencement date.
28 (iv) "Base rent for the base year." The total base rent for eligible
29 taxable premises for the base year, determined without the special
30 reduction allowed by subparagraph (a-1) of this paragraph.
31 (v) "Certificate of abatement." The certificate of abatement issued
32 pursuant to section four hundred ninety-nine-dd of the real property tax
33 law.
34 (b) Except as provided in subparagraphs (b-1) and (b-2) of this para-
35 graph, the amount of the special reduction allowed by this subdivision
36 shall be determined as follows: (i) For the base year the amount of
37 such special reduction shall be equal to the base rent for the base
38 year.
39 (ii) For the first and second twelve-month periods following the base
40 year the amount of such special reduction shall be equal to the lesser
41 of (A) the base rent for each such twelve-month period or (B) the base
42 rent for the base year.
43 (iii) For the third twelve-month period following the base year the
44 amount of such special reduction shall be equal to two-thirds of the
45 lesser of (A) the base rent for such twelve-month period or (B) the base
46 rent for the base year.
47 (iv) For the fourth twelve-month period following the base year the
48 amount of such special reduction shall be equal to one-third of the
49 lesser of (A) the base rent for such twelve-month period or (B) the base
50 rent for the base year.
51 (b-1) The amount of the special reduction allowed by this subdivision
52 with respect to a lease commencing on or after April first, nineteen
53 hundred ninety-seven with an initial lease term of less than five years,
54 but not less than three years, shall be determined as follows: (i) For
55 the base year the amount of such special reduction shall be equal to the
56 base rent for the base year.
S. 8578 802
1 (ii) For the first twelve-month period following the base year the
2 amount of such special reduction shall be equal to two-thirds of the
3 lesser of (A) the base rent for such twelve-month period or (B) the base
4 rent for the base year.
5 (iii) For the second twelve-month period following the base year the
6 amount of such special reduction shall be equal to one-third of the
7 lesser of (A) the base rent for such twelve-month period or (B) the base
8 rent for the base year.
9 (b-2) The amount of the special reduction allowed by this subdivision
10 with respect to a lease other than a sublease commencing between July
11 first, two thousand five and June thirtieth, two thousand twenty-seven
12 with an initial or renewal lease term of at least five years shall be
13 determined as follows: (i) For the base year the amount of such special
14 reduction shall be equal to the base rent for the base year.
15 (ii) For the first, second, third and fourth twelve-month periods
16 following the base year the amount of such special reduction shall be
17 equal to the lesser of (A) the base rent for each such twelve-month
18 period or (B) the base rent for the base year.
19 (c) For purposes of determining (i) whether a tenant is, pursuant to
20 the provisions of paragraph two of subdivision b of this section, exempt
21 from payment of the tax imposed by this chapter with respect to the base
22 rent for eligible taxable premises or (ii) whether, and the extent to
23 which, a tenant is eligible for the credit allowed pursuant to the
24 provisions of section 11-704.3 of this chapter with respect to eligible
25 taxable premises, the term "base rent" as used in such provisions shall
26 be the base rent as determined prior to the allowance of any special
27 reduction allowed by this subdivision.
28 (d) Notwithstanding anything to the contrary, for purposes of this
29 subdivision, expansion premises shall be treated as separate and
30 distinct from any other premises of the expansion tenant in the same
31 eligible building.
32 (3) The special reduction allowed by this subdivision shall be allowed
33 commencing on the rent commencement date; however, if the date of the
34 certificate of abatement or certificate of eligibility is later than the
35 rent commencement date, the tenant shall not, in the first instance,
36 claim the special reduction on any return required to be filed for a tax
37 period ending prior to the date of such certificate of abatement or
38 certificate of eligibility. If the date of such certificate of abatement
39 or certificate of eligibility falls in a tax period subsequent to the
40 tax period in which the rent commencement date falls, but both such
41 dates fall within the same tax year, the special reduction that was not
42 claimed in the first instance for any period preceding the date of such
43 certificate of abatement or certificate of eligibility shall be
44 reflected in the final return for the tax year. If the date of the
45 certificate of abatement or certificate of eligibility falls in the tax
46 year following the tax year in which the rent commencement date falls,
47 an amended final return shall be filed for such earlier tax year in
48 which shall be reflected any special reduction allowable for such tax
49 year; in addition, the final return for such later tax year shall
50 reflect any special reduction that was not claimed in the first instance
51 for any period in such tax year preceding the date of the certificate of
52 abatement or certificate of eligibility.
53 (4) (a) With respect to premises located in an eligible government-
54 owned building, no special reduction shall be allowed under this subdi-
55 vision unless: (i) the landlord enters into a lease for eligible prem-
56 ises with a new tenant or a renewal tenant and: (A) the lease
S. 8578 803
1 commencement date is within the eligibility period; and (B) (I) if, by
2 the sixtieth day following the rent commencement date, such new or
3 renewal tenant employs fifty or fewer employees in the eligible prem-
4 ises, the initial lease term is for a period of at least five years,
5 provided, however, that with respect to a lease commencing on or after
6 July first, nineteen hundred ninety-six if, by the sixtieth day follow-
7 ing the rent commencement date, such new or renewal tenant employs one
8 hundred twenty-five or fewer employees in the eligible premises, the
9 initial lease term is for a period of at least five years, and provided,
10 further, that with respect to a lease commencing on or after April
11 first, nineteen hundred ninety-seven if, by the sixtieth day following
12 the rent commencement date, such new or renewal tenant employs one
13 hundred twenty-five or fewer employees in the eligible premises, the
14 initial lease term is for a period of at least three years, or (II) if,
15 by the sixtieth day following the rent commencement date, such new or
16 renewal tenant employs more than fifty employees in the eligible prem-
17 ises, the initial lease term is for a period of at least ten years,
18 provided, however, that with respect to a lease commencing on or after
19 July first, nineteen hundred ninety-six if, by the sixtieth day follow-
20 ing the rent commencement date, such new or renewal tenant employs more
21 than one hundred twenty-five employees in the eligible premises, the
22 initial lease term is for a period of at least ten years; or
23 (ii) the landlord enters into a lease with an expansion tenant for
24 expansion premises and: (A) the lease commencement date is within the
25 eligibility period; (B) if the expansion premises are located in the
26 eligible building previously occupied by such expansion tenant, the
27 lease term for the premises in the eligible building previously occupied
28 by such expansion tenant will expire no earlier than the expiration date
29 of the initial lease term for the expansion premises, provided that
30 where such expansion tenant occupies premises in the eligible building
31 under more than one lease, the provisions of this subclause shall be
32 applied with reference to the lease for the premises containing the
33 largest amount of square feet, provided, however, that this subclause
34 shall not apply to a lease commencing on or after July first, nineteen
35 hundred ninety-six; and (C) (I) if, by the sixtieth day following the
36 rent commencement date, such expansion tenant employs fifty or fewer
37 employees in the eligible building in which the expansion premises are
38 located, the initial lease term for the expansion premises is for a
39 period of at least five years, provided, however, that with respect to a
40 lease commencing on or after July first, nineteen hundred ninety-six if,
41 by the sixtieth day following the rent commencement date, such expansion
42 tenant employs one hundred twenty-five or fewer employees in the expan-
43 sion premises, the initial lease term for the expansion premises is for
44 a period of at least five years, and provided, further, that with
45 respect to a lease commencing on or after April first, nineteen hundred
46 ninety-seven if, by the sixtieth day following the rent commencement
47 date, such expansion tenant employs one hundred twenty-five or fewer
48 employees in the expansion premises, the initial lease term for the
49 expansion premises is for a period of at least three years, or (II) if,
50 by the sixtieth day following the rent commencement date, such expansion
51 tenant employs more than fifty employees in such eligible building, the
52 initial lease term for the expansion premises is for a period of at
53 least ten years, provided, however, that with respect to a lease
54 commencing on or after July first, nineteen hundred ninety-six if, by
55 the sixtieth day following the rent commencement date, such expansion
56 tenant employs more than one hundred twenty-five employees in the expan-
S. 8578 804
1 sion premises, the initial lease term for the expansion premises is for
2 a period of at least ten years.
3 (b) Notwithstanding anything in this subdivision to the contrary, with
4 respect to premises located in an eligible government-owned building, no
5 certificate of eligibility shall be issued and no special reduction
6 shall be allowed under this subdivision if: (i) the tenant has relo-
7 cated to such premises from any area in the borough of Manhattan north
8 of the center line of 96th street or from any portion of the boroughs of
9 the Bronx, Brooklyn, Queens, or Staten Island; or (ii) the lease for
10 such premises provides that during the initial lease term required under
11 subparagraph (a) of this paragraph either the landlord or the tenant may
12 terminate such lease prior to the expiration of such required initial
13 lease term, provided that such lease may provide that either the land-
14 lord or the tenant may terminate such lease if (A) the other party is in
15 default of any of such party's obligations under the lease, (B) the
16 eligible premises are damaged or destroyed by fire or other casualty,
17 (C) the eligible premises are rendered unusable for any reason not
18 attributable to any act or failure to act of either tenant or landlord
19 or (D) the eligible premises are acquired by eminent domain.
20 (c) For purposes of this paragraph, the expiration date of a lease
21 shall be determined by the expiration date set forth in such lease,
22 without giving effect to any rights of the landlord or the tenant to
23 terminate such lease prior to the expiration date set forth therein.
24 (5) (a) (i) With respect to premises located in an eligible govern-
25 ment-owned building, an application for a certificate of eligibility
26 entitling a tenant to claim the special reduction allowed by this subdi-
27 vision shall be filed by such tenant with the department of finance on
28 or after the date on which the lease for the eligible premises is
29 executed by the landlord and tenant but in no event more than one
30 hundred eighty days following the later of the rent commencement date or
31 the date that chapter four of the laws of nineteen hundred ninety-five
32 became a law, and no such certificate of eligibility shall be issued
33 unless such application is filed within such time.
34 (ii) Notwithstanding clause (i) of this subparagraph and any other
35 provision of law to the contrary, with respect to a lease commencing on
36 or after July first, nineteen hundred ninety-six in premises located in
37 an eligible government-owned building, an application for a certificate
38 of eligibility entitling a tenant to claim the special reduction allowed
39 by this subdivision shall be filed by such tenant with the department of
40 finance on or after the date on which the lease for the eligible prem-
41 ises is executed by the landlord and tenant but in no event more than
42 one hundred eighty days following the rent commencement date or sixty
43 days following the date that the chapter of the laws of nineteen hundred
44 ninety-seven that added this clause became a law, whichever is later,
45 and no such certificate of eligibility shall be issued unless such
46 application is filed within such time.
47 (iii) Notwithstanding any other provisions of law to the contrary, an
48 application for the special reduction allowed by subparagraph (b-2) of
49 paragraph two of this subdivision shall be considered timely filed if
50 filed by such tenant with the department of finance on or after the date
51 on which the lease for the eligible premises is executed by the landlord
52 and tenant but in no event more than one hundred eighty days following
53 the rent commencement date or by May thirtieth, two thousand fourteen,
54 whichever is later, and no such special reduction shall be permitted
55 unless such application is filed within such time.
S. 8578 805
1 (b) In addition to any other information required by the department of
2 finance, such application for a certificate of eligibility shall include
3 (i) an abstract of the lease for the eligible taxable premises, which
4 shall include the lease commencement date, the rent commencement date
5 and the expiration date of such lease, (ii) a statement as to the number
6 of persons employed by the tenant in the eligible taxable premises and,
7 where applicable, in the eligible building containing such premises, by
8 the sixtieth day following the rent commencement date, (iii) a statement
9 as to the location of all office or retail space in the city occupied by
10 the tenant prior to the execution of the lease for the eligible taxable
11 premises and the commencement and expiration dates of all leases for
12 such office or retail space located in the abatement zone. Such applica-
13 tion shall also state that the tenant agrees to comply with and be
14 subject to such rules as may be issued from time to time by the depart-
15 ment of finance.
16 (c) The department of finance shall issue a certificate of eligibility
17 upon determining that an application filed pursuant to this paragraph
18 meets the requirements set forth in this subdivision, provided, however,
19 that no such certificate of eligibility shall be issued if any payments
20 in lieu of taxes, water or sewer charges or other lienable charges are
21 due and owing with respect to such eligible government-owned building at
22 the time such application is pending, unless such payments in lieu of
23 taxes or charges are at such time being paid in timely installments
24 pursuant to a written agreement with the department of finance or other
25 appropriate agency.
26 (d) The burden of proof shall be on the tenant to show by clear and
27 convincing evidence that the requirements for granting a certificate of
28 eligibility have been satisfied. The department of finance shall have
29 the authority to require that statements in connection with applications
30 pursuant to this paragraph be made under oath.
31 (e) The department of finance may provide by rule for the payment by
32 tenants of premises in eligible government-owned buildings of reasonable
33 administrative charges or fees necessary to defray expenses in
34 connection with the determination of initial and continuing eligibility
35 for the special reduction allowed by this subdivision.
36 (6) (a) If an eligible tenant (i) sublets any portion of the eligible
37 taxable premises to any other person, or (ii) otherwise ceases to occupy
38 or use any portion of the premises as eligible taxable premises, such
39 tenant shall, immediately upon the occurrence of any such event, cease
40 to be eligible for the special reduction allowed by this subdivision
41 with respect to the portion of the premises which is sublet or which
42 ceases to be occupied or used by such tenant as eligible taxable prem-
43 ises, and for any period following the occurrence of any such event, the
44 special reduction otherwise allowed by this subdivision shall be reduced
45 by an amount determined by multiplying the amount of such special
46 reduction by the percentage of the premises which is sublet or which has
47 ceased to be occupied or used as eligible taxable premises.
48 Such tenant shall give written notice of the occurrence of any such
49 event to the department of finance within thirty days thereof. If the
50 tenant fails to give such notice, an assessment of any additional tax
51 that may become due as a result of the occurrence of any such event may
52 be made at any time, notwithstanding anything in section 11-717 of this
53 chapter to the contrary.
54 (b) Notwithstanding anything in this chapter to the contrary, a tenant
55 claiming the special reduction allowed by this subdivision shall file a
56 return for each tax period with respect to which such special reduction
S. 8578 806
1 is claimed. Each such return shall contain a certification by the
2 tenant, in such form as the department of finance may prescribe, to the
3 effect that such tenant meets all the requirements of this subdivision,
4 and no special reduction shall be allowed if such return does not
5 contain such certification by such tenant.
6 (c) If any special reduction allowed under this subdivision was
7 obtained by a tenant as a result of having made a false or misleading
8 statement as to a material fact or having omitted to state any material
9 fact necessary in order to make such statement not false or misleading,
10 no such special reduction shall be allowed and any additional tax that
11 becomes due as a result of such disallowance may be assessed at any
12 time, notwithstanding anything in section 11-717 of this chapter to the
13 contrary. In addition, the department of finance may declare any such
14 tenant to be ineligible to claim any special reduction under this subdi-
15 vision in the future with respect to the same or any other premises.
16 7. A determination by the department of finance pursuant to subdivi-
17 sion six of section four hundred ninety-nine-f of the real property tax
18 law to deny, terminate or revoke any abatement applied for or granted
19 pursuant to title four of article four of the real property tax law
20 based on the relationship between the landlord and the tenant shall not
21 be dispositive of whether such tenant is eligible for a special
22 reduction under this subdivision. The department of finance may deter-
23 mine that such tenant is eligible for a special reduction under this
24 subdivision and may issue a certificate of eligibility to such tenant in
25 accordance with the procedures and pursuant to the standards applicable
26 to a tenant of premises located in an eligible government-owned build-
27 ing, provided, however, that any application filed pursuant to paragraph
28 five of this subdivision by a tenant whose application for a certificate
29 of abatement pursuant to title four of article four of the real property
30 tax law was denied by the department of finance pursuant to subdivision
31 six of section four hundred ninety-nine-f of the real property tax law
32 based on the relationship between the landlord and the tenant, or by a
33 tenant whose application for a certificate of abatement pursuant to
34 title four of article four of the real property tax law was granted by
35 the department of finance, but whose abatement was terminated or revoked
36 by the department of finance pursuant to subdivision six of section four
37 hundred ninety-nine-f of the real property tax law based on the
38 relationship between the landlord and the tenant, may be deemed by the
39 department of finance to have been filed on the date the application for
40 such certificate of abatement was filed. This paragraph shall only apply
41 to leases commencing on or after April first, nineteen hundred ninety-
42 seven.
43 § 11-704.2 Special credit. A tenant whose base rent for the tax year
44 beginning June first, nineteen hundred ninety-three and ending May thir-
45 ty-first, nineteen hundred ninety-four is at least eleven thousand
46 dollars per year but not in excess of thirteen thousand nine hundred
47 ninety-nine dollars per year shall be allowed a credit against the tax
48 imposed by this chapter for such tax year, such credit shall be equal to
49 twenty-five percent of the tax imposed on such base rent for such tax
50 year. Where the base rent of a tenant is for a period of less than one
51 year, such base rent shall, for purposes of this section, be determined
52 as if it had been on an equivalent basis for the entire year. The credit
53 allowed under this section shall be deducted prior to the deduction of
54 any credit allowable under section 11-704.1 of this chapter.
55 § 11-704.3 Tax credit. (a) (1) For the period beginning September
56 first, nineteen hundred ninety-five and ending May thirty-first, nine-
S. 8578 807
1 teen hundred ninety-six, a credit shall be allowed against the tax
2 imposed by this chapter, such credit to be determined in accordance with
3 the following table:
4 If the tenant's annualized The credit shall be an amount equal
5 base rent for such period is: to the following percentage of the
6 tax imposed on such annualized base
7 rent for such period:
8 At least: But not over:
9 $40,000 $44,999 80%
10 $45,000 $49,999 60%
11 $50,000 $54,999 40%
12 $55,000 $59,999 20%
13 If the tenant's annualized base rent for such period is over fifty-
14 nine thousand nine hundred ninety-nine dollars, no credit shall be
15 allowed under this paragraph.
16 (2) For the tax year beginning June first, nineteen hundred ninety-six
17 and ending May thirty-first, nineteen hundred ninety-seven, a credit
18 shall be allowed against the tax imposed by this chapter, such credit to
19 be determined in accordance with the following table:
20 If the tenant's base rent is: The credit shall be an amount equal
21 to the following percentage of the
22 tax imposed on such base rent for
23 the tax year:
24 At least: But not over:
25 $40,000 $44,999 80%
26 $45,000 $49,999 60%
27 $50,000 $54,999 40%
28 $55,000 $59,999 20%
29 If the tenant's base rent is over fifty-nine thousand nine hundred
30 ninety-nine dollars, no credit shall be allowed under this paragraph.
31 (3) For each tax year beginning on or after June first, nineteen
32 hundred ninety-seven and ending on or before May thirty-first, two thou-
33 sand, a credit shall be allowed against the tax imposed by this chapter,
34 such credit to be determined in accordance with the following table:
35 If the tenant's base rent is: The credit shall be an amount equal
36 to the following percentage of the
37 tax imposed by this chapter for the
38 tax year:
39 At least: But not over:
40 $100,000 $109,999 80%
41 $110,000 $119,999 60%
42 $120,000 $129,999 40%
43 $130,000 $139,999 20%
44 If the tenant's base rent is over one hundred thirty-nine thousand
45 nine hundred ninety-nine dollars, no credit shall be allowed under this
46 paragraph. For purposes of this paragraph, 'base rent' shall be calcu-
47 lated without regard to any reduction in base rent allowed by paragraph
48 two of subdivision h of section 11-704 of this chapter.
49 (4) For the period beginning June first, two thousand and ending
50 November thirtieth, two thousand, a credit shall be allowed against the
S. 8578 808
1 tax imposed by this chapter, such credit to be determined in accordance
2 with the following table:
3 If the tenant's annualized The credit shall be an amount equal
4 base rent for such period is: to the following percentage of the
5 tax imposed on such annualized base
6 rent for such period:
7 At least: But not over:
8 $100,000 $109,999 80%
9 $110,000 $119,999 60%
10 $120,000 $129,999 40%
11 $130,000 $139,999 20%
12 If the tenant's annualized base rent for such period is over one
13 hundred thirty-nine thousand nine hundred ninety-nine dollars, no credit
14 shall be allowed under this paragraph. For purposes of this paragraph
15 'base rent' shall be calculated without regard to any reduction in base
16 rent allowed by paragraph two of subdivision h of section 11-704 of this
17 chapter.
18 (5) For the period beginning December first, two thousand and ending
19 May thirty-first, two thousand one, a credit shall be allowed against
20 the tax imposed by this chapter, such credit to be determined in accord-
21 ance with the following table:
22 If the tenant's annualized The credit shall be an amount equal
23 base rent for such period is: to the following percentage of the
24 tax imposed on such annualized base
25 rent for such period:
26 At least: But not over:
27 $150,000 $159,999 80%
28 $160,000 $169,999 60%
29 $170,000 $179,999 40%
30 $180,000 $189,999 20%
31 If the tenant's annualized base rent for such period is over one
32 hundred eighty-nine thousand nine hundred ninety-nine dollars, no credit
33 shall be allowed under this paragraph. For purposes of this paragraph,
34 'base rent' shall be calculated without regard to any reduction in base
35 rent allowed by paragraph two of subdivision h of section 11-704 of this
36 chapter.
37 (6) For each tax year beginning on or after June first, two thousand
38 one, a credit shall be allowed against the tax imposed by this chapter
39 as follows: a tenant whose base rent is at least two hundred and fifty
40 thousand dollars but not more than three hundred thousand dollars shall
41 be allowed a credit in an amount determined by multiplying three and
42 nine-tenths percent of base rent by a fraction the numerator of which is
43 three hundred thousand dollars minus the amount of base rent and the
44 denominator of which is fifty thousand dollars. If the tenant's base
45 rent is over three hundred thousand dollars, no credit shall be allowed
46 under this paragraph. For purposes of this paragraph, 'base rent' shall
47 be calculated without regard to any reduction in base rent allowed by
48 paragraph two of subdivision h of section 11-704 of this chapter.
49 (b) (1) Where the base rent of a tenant is for a period of less than
50 one year, such base rent shall, for purposes of this section, be deter-
51 mined as if it had been on an equivalent basis for the entire year. The
52 credits allowed under this section shall be deducted prior to the
S. 8578 809
1 deduction of any credit allowable under section 11-704.1 of this chap-
2 ter.
3 (2) For purposes of paragraphs four and five of subdivision (a) of
4 this section, base rent for the period specified in each of such para-
5 graphs shall be separately annualized as if it had been on an equivalent
6 basis for an entire year, irrespective of the actual base rent for the
7 tax year including the period specified in such paragraph.
8 § 11-704.4. Small business tax credit. a. As used in this section, the
9 following terms have the following meanings:
10 1. Income factor. The term "income factor" shall mean:
11 (i) for a tenant with total income of not more than five million
12 dollars, one;
13 (ii) for a tenant with total income of more than five million dollars
14 but not more than ten million dollars, a fraction the numerator of which
15 is ten million dollars minus the amount of total income and the denomi-
16 nator of which is five million dollars; and
17 (iii) for a tenant with total income of more than ten million dollars,
18 zero.
19 2. Rent factor. The term "rent factor" shall mean:
20 (i) for a tenant whose small business tax credit base rent is less
21 than five hundred thousand dollars, one; and
22 (ii) for a tenant whose small business tax credit base rent is at
23 least five hundred thousand dollars but not more than five hundred fifty
24 thousand dollars, a fraction the numerator of which is five hundred
25 fifty thousand dollars minus the amount of small business tax credit
26 base rent and the denominator of which is fifty thousand dollars.
27 3. Small business tax credit base rent. The term "small business tax
28 credit base rent" shall mean the base rent calculated without regard to
29 any reduction in base rent allowed by paragraph two of subdivision h of
30 section 11-704 of this chapter.
31 4. Total income. The term "total income" shall mean the amount
32 reported by a person, as defined by section seven thousand seven hundred
33 one of the internal revenue code, to the internal revenue service for
34 the purpose of the federal income tax in the tax year immediately
35 preceding the period for which the tenant is applying for the credit set
36 forth in subdivision b that is equal to the gross receipts or sales of
37 the person minus any returns and allowances, minus the cost of goods
38 sold plus the amount of any dividends, interest, gross rents, gross
39 royalties, capital gain net income, net gain or loss from the sale of
40 business property, net farm profit or loss, ordinary income or loss from
41 other partnerships, estates or trusts or other income or loss; except
42 that, if the tenant is a limited liability company or other business
43 entity that is not separate from its owner for federal income tax
44 purposes under section 301.7701-2(c)(2) of title 26 of the code of
45 federal regulations, total income as defined in this section shall mean
46 the total income of the person that reports the activities of the tenant
47 as its sole owner for federal income tax purposes.
48 b. Beginning on June first, two thousand eighteen and for each tax
49 year beginning thereafter, a credit shall be allowed against the tax
50 imposed by this chapter as follows: a tenant whose small business tax
51 credit base rent is at least two hundred fifty thousand dollars but not
52 more than five hundred fifty thousand dollars shall be allowed a credit
53 in the amount determined by multiplying the tax imposed on the tenant
54 pursuant to section 11-702 of this chapter minus any allowable credits
55 or exemptions set forth outside this section by the income factor and by
56 the rent factor. If the tenant's small business tax credit base rent is
S. 8578 810
1 over five hundred fifty thousand dollars, no credit shall be allowed
2 under this section.
3 c. The department of finance may promulgate any rules necessary to
4 implement the provisions of this section, including, but not limited to,
5 rules that prevent abuse of this section by related parties.
6 § 11-705 Returns. a. Every tenant subject to tax under this chapter
7 shall file with the commissioner of finance a return with respect to the
8 taxes payable for the three month periods ending on the last days of
9 August, November and February of each year and a final return with
10 respect to the taxes payable for the tax year ending on the last day of
11 May of each year. Such returns shall be filed within twenty days from
12 the expiration of the period covered thereby. A tenant who is exempt
13 from the tax by reason of paragraph two of subdivision b of section
14 11-704 of this chapter shall nevertheless be required to file a final
15 return, provided, however, that for tax years beginning on or after June
16 first, nineteen hundred ninety-five and ending on or before May thirty-
17 first, nineteen hundred ninety-seven, no such final return shall be
18 required from such exempt tenant with respect to taxable premises if (1)
19 the tenant's rent for such premises, determined without regard to any
20 deduction from or reduction in rent or base rent allowed by this chap-
21 ter, does not exceed fifteen thousand dollars for the tax year and (2)
22 in the case of a tenant who has more than one taxable premises, the
23 aggregate rents for all such premises, determined without regard to any
24 deduction from or reduction in rent or base rent allowed by this chap-
25 ter, do not exceed fifteen thousand dollars for the tax year. For tax
26 years beginning on June first, nineteen hundred ninety-seven and ending
27 on or before May thirty-first, two thousand one, no such final return
28 shall be required from such exempt tenant with respect to any taxable
29 premises if (1) the tenant's rent for such premises, determined without
30 regard to any deduction from or reduction in rent or base rent allowed
31 by this chapter, does not exceed seventy-five thousand dollars for the
32 tax year and (2) the amount of rent received or due from any subtenant
33 of such exempt tenant with respect to such premises does not exceed
34 seventy-five thousand dollars for the tax year. For tax years beginning
35 on or after June first, two thousand one, no such final return shall be
36 required from such exempt tenant with respect to any taxable premises if
37 (1) the tenant's rent for such premises, determined without regard to
38 any deduction from or reduction in rent or base rent allowed by this
39 chapter, does not exceed two hundred thousand dollars for the tax year
40 and (2) the amount of rent received or due from any subtenant of such
41 exempt tenant with respect to such premises does not exceed two hundred
42 thousand dollars for the tax year. Notwithstanding anything in this
43 subdivision to the contrary, for tax periods beginning on or after
44 September first, nineteen hundred ninety-five, no return shall be
45 required pursuant to this subdivision with respect to any taxable prem-
46 ises located in that part of the city specified in paragraph one of
47 subdivision h of section 11-704 of this chapter, and no such taxable
48 premises shall be taken into account for purposes of clause two of this
49 subparagraph. The commissioner of finance may permit or require returns,
50 including final returns, to be made for other periods and upon such
51 dates as the commissioner may specify and if he or she deems it neces-
52 sary, in order to insure the payment of the tax imposed by this chapter,
53 the commissioner may require such returns to be made for shorter periods
54 than those prescribed by this subdivision of this section, and upon such
55 dates as he or she may specify.
S. 8578 811
1 b. The commissioner of finance may by regulation require the filing
2 of information returns and supplemental information returns by landlords
3 and by tenants of taxable premises, whether or not they are required to
4 pay the tax imposed by this chapter, upon such dates or at such times as
5 the commissioner may specify if he or she deems the filing of such
6 information returns necessary for proper administration of this chapter.
7 c. The form of returns and information returns shall be prescribed by
8 the commissioner of finance and shall contain such information as the
9 commissioner may deem necessary for the proper administration of this
10 chapter. The commissioner of finance may require amended returns or
11 amended information returns to be filed within twenty days after notice
12 and to contain the information specified in the notice.
13 d. If a return or information return is not filed, or if a return of
14 any kind when filed is incorrect or insufficient on its face, the
15 commissioner of finance shall take the necessary steps to enforce the
16 filing of such a return or of a corrected return.
17 § 11-706 Payment of tax. a. The tax imposed by this chapter shall be
18 due and payable on or before the twentieth day of the calendar month
19 following the end of each tax period and shall be paid to the commis-
20 sioner of finance, as follows: The tax to be paid at such time shall be
21 based on the base rent for such tax period and the rate of tax shall be
22 the one which would be applicable if the base rent for such period were
23 the same for each tax period during the tax year, except that the
24 payment required to be made together with the final return or at the
25 time that the final return should be filed shall be the amount by which
26 the actual tax for the tax year exceeds the amounts previously paid for
27 the tax year.
28 b. Where the final return shows that the amount of tax paid for the
29 tax year exceeds the actual tax for such year, the commissioner of
30 finance shall make the appropriate refund as promptly as possible,
31 provided, however, that where the commissioner of finance has reason to
32 believe that the final return is inaccurate, the commissioner may with-
33 hold the refund in whole or in part. The making of a refund pursuant to
34 this subdivision shall not prevent the commissioner of finance from
35 making a determination that additional tax is due or from pursuing any
36 other method to recover the full amount of the actual tax due for the
37 tax year.
38 c. Where a tenant ceases to do business the tax, as measured by the
39 tenant's base rent for the prior part of the tax year, shall be due
40 immediately, and the tenant shall file a final return, but, should the
41 tenant continue to pay rent for the taxable premises, the tenant shall
42 file the normally required returns and a final return for the tax year,
43 provided, however, that any such tax payment shall be applied in
44 reduction of the tax payments required to be made with such returns or
45 with the final return for such tax year.
46 § 11-707 Records to be kept. Every landlord of taxable premises and
47 every tenant of taxable premises shall keep records of rent paid and
48 received by him or her in such form as the commissioner of finance may
49 by regulation require, all leases or agreements which fix the rents or
50 rights of tenants of taxable premises, and such other records, receipts
51 and other papers relevant to the ascertainment of the tax due under this
52 chapter as the commissioner of finance may by regulation require. Such
53 records shall be offered for inspection and examination at any time upon
54 demand by the commissioner of finance. Such records, unless the commis-
55 sioner of finance consents to a sooner destruction or requires that they
56 be kept for a longer time, shall be preserved for a period of three
S. 8578 812
1 years except that leases or agreements which fix the rents or rights of
2 a tenant shall be kept for a period of three years after the expiration
3 of the tenancy thereunder.
4 § 11-708 Determination of tax. If a return required by this chapter is
5 not filed, or if a return when filed is incorrect or insufficient, the
6 commissioner of finance shall determine the amount of tax due from such
7 information as may be obtainable and, if necessary, may estimate the tax
8 on the basis of external indices. Notice of such determination shall be
9 given to the person liable for the payment of the tax. Such determi-
10 nation shall finally and irrevocably fix the tax unless the person
11 against whom it is assessed, within ninety days after the giving of
12 notice of such determination or, if the commissioner of finance has
13 established a conciliation procedure pursuant to section 11-124 of this
14 title and the taxpayer has requested a conciliation conference in
15 accordance therewith, within ninety days from the mailing of a concil-
16 iation decision or the date of the commissioner's confirmation of the
17 discontinuance of the conciliation proceeding, both (1) serves a peti-
18 tion upon the commissioner of finance and (2) files a petition with the
19 tax appeals tribunal for a hearing, or unless the commissioner of
20 finance of the commissioner's own motion shall redetermine the same.
21 Such hearing and any appeal to the tax appeals tribunal sitting en banc
22 from the decision rendered in such hearing shall be conducted in the
23 manner and subject to the requirements prescribed by the tax appeals
24 tribunal pursuant to sections one hundred sixty-eight through one
25 hundred seventy-two of the charter of the preceding municipality as it
26 existed January first, nineteen hundred ninety-four. After such hearing
27 the tax appeals tribunal shall give notice of its decision to the person
28 against whom the tax is assessed and to the commissioner of finance. A
29 decision of the tax appeals tribunal sitting en banc shall be reviewable
30 for error, illegality or unconstitutionality or any other reason whatso-
31 ever by a proceeding under article seventy-eight of the civil practice
32 law and rules if application therefor is made to the supreme court by
33 the person against whom the tax was assessed within four months after
34 the giving of the notice of such tax appeals tribunal decision,
35 provided, however, that any such proceeding under article seventy-eight
36 of the civil practice law and rules shall not be instituted by a taxpay-
37 er unless: (a) the amount of any tax sought to be reviewed, with inter-
38 est and penalties thereon, if any, shall be first deposited and there is
39 filed an undertaking with the commissioner of finance, issued by a sure-
40 ty company authorized to transact business in this state and approved by
41 the superintendent of insurance of this state as to solvency and respon-
42 sibility, in such amount as a justice of the supreme court shall approve
43 to the effect that if such proceeding be dismissed or the tax confirmed
44 the taxpayer will pay all costs and charges which may accrue in the
45 prosecution of such proceeding or (b) at the option of the taxpayer such
46 undertaking may be in a sum sufficient to cover the taxes, interest and
47 penalties stated in such decision plus the costs and charges which may
48 accrue against it in the prosecution of the proceeding, in which event
49 the taxpayer shall not be required to pay such taxes, interest or penal-
50 ties as a condition precedent to the application.
51 § 11-709 Refunds. a. In the manner provided in this section the
52 commissioner of finance shall refund or credit, without interest, any
53 tax, penalty or interest erroneously, illegally or unconstitutionally
54 collected or paid, if written application to the commissioner of finance
55 for such refund shall be made within eighteen months from the date fixed
56 by this chapter for filing the return on which such payment was based or
S. 8578 813
1 within six months of the payment thereof, whichever of such periods
2 expire the later. Whenever a refund or credit is made or denied, the
3 commissioner of finance shall state his or her reason therefor and give
4 notice thereof to the taxpayer in writing. The commissioner of finance
5 may, in lieu of any refund required to be made, allow credit therefor on
6 payments due from the applicant.
7 b. Any determination of the commissioner of finance denying a refund
8 or credit pursuant to subdivision a of this section shall be final and
9 irrevocable unless the applicant for such refund or credit, within nine-
10 ty days from the mailing of notice of such determination, or, if the
11 commissioner of finance has established a conciliation procedure pursu-
12 ant to section 11-124 of this title and the applicant has requested a
13 conciliation conference in accordance therewith, within ninety days from
14 the mailing of a conciliation decision or the date of the commissioner's
15 confirmation of the discontinuance of the conciliation proceeding, both
16 (1) serves a petition upon the commissioner of finance and (2) files a
17 petition with the tax appeals tribunal for a hearing. Such petition for
18 a refund or credit, made as herein provided, shall be deemed an applica-
19 tion for a revision of any tax, penalty or interest complained of. Such
20 hearing of any appeal to the tax appeals tribunal sitting en banc from
21 the decision rendered in such hearing shall be conducted in the manner
22 and subject to the requirements prescribed by the tax appeals tribunal
23 pursuant to section one hundred sixty-eight through one hundred seven-
24 ty-two of the charter of the preceding municipality as it existed Janu-
25 ary first, nineteen hundred ninety-four. After such hearing, the tax
26 appeals tribunal shall give notice of its decision to the applicant and
27 to the commissioner of finance. The applicant shall be entitled to
28 institute a proceeding pursuant to article seventy-eight of the civil
29 practice law and rules to review a decision of the tax appeals tribunal
30 sitting en banc if application to the supreme court be made therefor
31 within four months after the giving of notice of such decision, and
32 provided, in the case of an application by a taxpayer, that a final
33 determination of tax due was not previously made. Such a proceeding
34 shall not be instituted by a taxpayer unless an undertaking shall first
35 be filed with the commissioner of finance, in such amount and with such
36 sureties as a justice of the supreme court shall approve, to the effect
37 that if such proceeding be dismissed or the tax confirmed, the taxpayer
38 will pay all costs and charges which may accrue in the prosecution of
39 the proceeding.
40 c. A person shall not be entitled to a revision, refund or credit
41 under this section of a tax, interest or penalty which had been deter-
42 mined to be due pursuant to the provisions of section 11-708 of this
43 chapter where such person has had a hearing or an opportunity for a
44 hearing, as provided in said section, or has failed to avail himself or
45 herself of the remedies therein provided. No refund or credit shall be
46 made of a tax, interest or penalty paid after a determination by the
47 commissioner of finance made pursuant to section 11-708 of this chapter
48 unless it be found that such determination was erroneous, illegal or
49 unconstitutional, or otherwise improper, by the tax appeals tribunal
50 after a hearing, or, if such tax appeals tribunal affirms in whole or in
51 part the determination of the commissioner of finance, in a proceeding
52 under article seventy-eight of the civil practice law and rules, pursu-
53 ant to the provisions of said section, in which event refund or credit
54 without interest shall be made of the tax, interest or penalty found to
55 have been overpaid.
S. 8578 814
1 § 11-710 Remedies exclusive. The remedies provided by this chapter
2 shall be the exclusive remedies available to any person for the review
3 of tax liability imposed by this chapter; and no determination or
4 proposed determination of tax or determination on any application for
5 refund by the commissioner of finance, nor any decision by the tax
6 appeals tribunal or any of its administrative law judges, shall be
7 enjoined or reviewed by an action for declaratory judgment, an action
8 for money had and received or by any action or proceeding other than, in
9 the case of a decision by the tax appeals tribunal sitting en banc, a
10 proceeding under article seventy-eight of the civil practice law and
11 rules; provided, however, that a taxpayer may proceed by declaratory
12 judgment if he or she institutes suit within thirty days after a defi-
13 ciency assessment is made and pays the amount of the deficiency assess-
14 ment to the commissioner of finance prior to the institution of such
15 suit and posts a bond for costs as provided in section 11-708 of this
16 chapter.
17 § 11-711 Reserves. In cases where the taxpayer has applied for a
18 refund and has instituted a proceeding under article seventy-eight of
19 the civil practice law and rules to review a determination adverse to
20 the taxpayer on his or her application for refund, the comptroller shall
21 set up appropriate reserves to meet any decision adverse to the city.
22 § 11-712 Proceedings to recover tax. a. Whenever any person shall
23 fail to pay any tax or penalty or interest imposed by this chapter as
24 herein provided, the corporation counsel shall, upon the request of the
25 commissioner of finance, bring or cause to be brought an action to
26 enforce payment of the same against the person liable for the same on
27 behalf of the city of Staten Island in any court of the state of New
28 York or of any other state or of the United States. If, however, the
29 commissioner of finance in his or her discretion believes that a
30 taxpayer subject to the provisions of this chapter is about to cease
31 business, leave the state or remove or dissipate the assets out of which
32 tax or penalties might be satisfied and that any such tax or penalty
33 will not be paid when due, he or she may declare such tax or penalty to
34 be immediately due and payable and may issue a warrant immediately.
35 b. As an additional or alternate remedy, the commissioner of finance
36 may issue a warrant, directed to the city sheriff commanding the sheriff
37 to levy upon and sell the real and personal property of such person
38 which may be found within the city, for the payment of the amount there-
39 of, with any penalties and interest, and the cost of executing the
40 warrant, and to return such warrant to the commissioner of finance and
41 to pay to the commissioner the money collected by virtue thereof within
42 sixty days after the receipt of such warrant. The city sheriff shall,
43 within five days after the receipt of the warrant, file with the county
44 clerk a copy thereof, and thereupon such clerk shall enter in the judg-
45 ment docket the name of the person mentioned in the warrant and the
46 amount of the tax, penalties and interest for which the warrant is
47 issued and the date when such copy is filed. Thereupon the amount of
48 such warrant so docketed shall become a lien upon the title to and
49 interest in real and personal property of the person against whom the
50 warrant is issued. The city sheriff shall then proceed upon the warrant
51 in the same manner and with like effect as that provided by law in
52 respect to executions issued against property upon judgments of a court
53 of record, and for services in executing the warrant the sheriff shall
54 be entitled to the same fees which the sheriff may collect in the same
55 manner. In the discretion of the commissioner of finance a warrant of
56 like terms, force and effect may be issued and directed to any officer
S. 8578 815
1 or employee of the department of finance, and in the execution thereof
2 such officer or employee shall have all the powers conferred by law upon
3 sheriffs, but he or she shall be entitled to no fee or compensation in
4 excess of the actual expenses paid in the performance of such duty. If
5 a warrant is returned not satisfied in full, the commissioner of finance
6 may from time to time issue new warrants and shall also have the same
7 remedies to enforce the amount due thereunder as if the city had recov-
8 ered judgment therefor and execution thereon had been returned unsatis-
9 fied.
10 c. Whenever there is made a sale, transfer or assignment in bulk of
11 any part or the whole of a stock of merchandise or of fixtures, or
12 merchandise and of fixtures pertaining to the conducting of the business
13 of the seller, transferor or assignor, otherwise than in the ordinary
14 course of trade and in the regular prosecution of said business, the
15 purchaser, transferee or assignee shall at least ten days before taking
16 possession of such merchandise, fixtures, or merchandise and fixtures,
17 or paying therefor, notify the commissioner of finance by registered
18 mail of the proposed sale and of the price, terms and conditions thereof
19 whether or not the seller, transferor or assignor, has represented to,
20 or informed the purchaser, transferee or assignee that it owes any tax
21 pursuant to this chapter and whether or not the purchaser, transferee or
22 assignee has knowledge that such taxes are owing, and whether any such
23 taxes are in fact owing.
24 Whenever the purchaser, transferee or assignee shall fail to give
25 notice to the commissioner of finance as required by the opening para-
26 graph of this subdivision, or whenever the commissioner of finance shall
27 inform the purchaser, transferee or assignee that a possible claim for
28 such tax or taxes exists, any sums of money, property or choses in
29 action, or other consideration, which the purchaser, transferee or
30 assignee is required to transfer over to the seller, transferor or
31 assignor shall be subject to a first priority right and lien for any
32 such taxes theretofore or thereafter determined to be due from the sell-
33 er, transferor or assignor to the city, and the purchaser, transferee or
34 assignee is forbidden to transfer to the seller, transferor or assignor
35 any such sums of money, property or choses in action to the extent of
36 the amount of the city's claim. For failure to comply with the
37 provisions of this subdivision, the purchaser, transferee or assignee,
38 in addition to being subject to the liabilities and remedies imposed
39 under the provisions of former section forty-four of the personal prop-
40 erty law, shall be personally liable for the payment to the city of any
41 such taxes theretofore or thereafter determined to be due to the city
42 from the seller, transferor or assignor, and such liability may be
43 assessed and enforced in the same manner as the liability for tax under
44 this chapter.
45 d. The commissioner of finance, if he or she finds that the interests
46 of the city will not thereby be jeopardized, and upon such conditions as
47 the commissioner of finance may require, may release any property from
48 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
49 tions to tax, penalties and interest filed pursuant to subdivision b of
50 this section, and such release or vacating of the warrant may be
51 recorded in the office of any recording officer in which such warrant
52 has been filed. The clerk shall thereupon cancel and discharge as of the
53 original date of docketing the vacated warrant.
54 § 11-713 General powers of the commissioner of finance. In addition
55 to the powers granted to the commissioner of finance in this chapter,
56 the commissioner is hereby authorized and empowered:
S. 8578 816
1 1. To make, adopt and amend rules and regulations appropriate to the
2 carrying out of this chapter and the purposes thereof;
3 2. To extend, for cause shown, the time for filing any return for a
4 period not exceeding ninety days; and to compromise disputed claims in
5 connection with the taxes hereby imposed;
6 3. To request information from the tax commission of the state on New
7 York or the treasury department of the United States relative to any
8 person; and to afford information to such tax commission or such treas-
9 ury department relative to any person;
10 4. To delegate the commissioner's functions pursuant to this section
11 to a deputy commissioner of finance or other employee or employees of
12 the commissioner's department;
13 5. To assess, determine, revise and adjust the taxes imposed under
14 this chapter;
15 6. To require any tenant who uses premises for both residential
16 purposes and as taxable premises and who pays an undivided rent for the
17 entire premises so used to provide the commissioner with a signed and
18 notarized request to the United States director of internal revenue for
19 photostatic copies of the tenant's income tax return for any year when
20 the commissioner deems such income tax return necessary to determine the
21 rent ascribable to so much of such premises as is used as taxable prem-
22 ises; and, if the tenant refuses to provide the commissioner with such a
23 signed written request, to treat the rent for the entire premises as the
24 rent for so much as is used as taxable premises;
25 7. To prescribe methods for determining how much of any tenant's base
26 rent is ascribable to a use which results in a reduction of the base
27 rent or for determining any other division of rent or of use of premises
28 necessary for the determination of the base rent or the amount of base
29 rent subject to tax under this chapter;
30 8. To authorize banks or trust companies which are depositories or
31 financial agents of the city to receive and give a receipt for any tax
32 imposed under this chapter in such manner, at such times, and under such
33 conditions as the commissioner of finance may prescribe; and the commis-
34 sioner of finance shall prescribe the manner, times and conditions under
35 which the receipt of such tax by such banks and trust companies is to be
36 treated as payment of such tax to the commissioner of finance.
37 § 11-714 Administration of oaths and compelling testimony. a. The
38 commissioner of finance, the commissioner's employees duly designated
39 and authorized by the commissioner, the tax appeals tribunal and any of
40 its duly designated and authorized employees shall have power to admin-
41 ister oaths and take affidavits in relation to any matter or proceeding
42 in the exercise of their powers and duties under this chapter. The
43 commissioner of finance and the tax appeals tribunal shall have power to
44 subpoena and require the attendance of witnesses and the production of
45 books, papers and documents to secure information pertinent to the
46 performance of the duties of the commissioner or of the tax appeals
47 tribunal hereunder and of the enforcement of this chapter and to examine
48 them in relation thereto, and to issue commissions for the examination
49 of witnesses who are out of the state or unable to attend before the
50 commissioner or the tax appeals tribunal or excused from attendance.
51 b. A justice of the supreme court either in court or at chambers shall
52 have power summarily to enforce by proper proceedings the attendance and
53 testimony of witnesses and the production and examination of books,
54 papers and documents called for by the subpoena of the commissioner of
55 finance or the tax appeals tribunal under this chapter.
S. 8578 817
1 c. Cross-reference; criminal penalties. For failure to obey subpoenas
2 or for testifying falsely, see section 11-4007 of this title; for
3 supplying false or fraudulent information, see section 11-4002 of this
4 title.
5 d. The officers who serve the summons or subpoena of the commissioner
6 of finance or the tax appeals tribunal hereunder and witnesses attending
7 in response thereto shall be entitled to the same fees as are allowed to
8 officers and witnesses in civil cases in courts of record, except as
9 herein otherwise provided. Such officers shall be the city sheriff, and
10 the sheriff's duly appointed deputies or any officers or employees of
11 the department of finance or the tax appeals tribunal, designated to
12 serve such process.
13 § 11-715 Interest and penalties. (a) Interest on underpayment; quar-
14 terly return. If any amount of tax required to be paid together with a
15 return, other than the final return for a tax year, is not paid on or
16 before the last date prescribed for payment, without regard to any
17 extension of time granted for payment, interest on such amount at the
18 rate set by the commissioner of finance pursuant to subdivision (h) of
19 this section, or, if no rate is set, at the rate of seven and one-half
20 percent per annum, shall be paid for the period from such last date
21 until twenty days after the end of the tax year during which such
22 payments were due or until such prior time as the tax paid for the tax
23 year equals seventy-five percent of the full tax required to be paid for
24 the tax year. Such interest shall be paid with the final return for the
25 tax year to which it relates. In computing the amount of interest to be
26 paid, such interest shall be compounded daily. Interest under this
27 subdivision shall not be paid if the amount thereof is less than one
28 dollar.
29 (b) Interest on underpayment; final return. If any amount of tax
30 required to be paid together with the final return for a tax year is not
31 paid on or before the last date prescribed for payment, without regard
32 to any extension of time granted for payment, interest on such amount at
33 the rate set by the commissioner of finance pursuant to subdivision (h)
34 of this section, or, if no rate is set, at the rate of seven and one-
35 half percent per annum, shall be paid for the period from such last date
36 to the date of payment. In computing the amount of interest to be paid,
37 such interest shall be compounded daily. Interest under this subdivision
38 shall not be paid if the amount thereof is less than one dollar.
39 (c) (1) Failure to file final return. (A) In case of failure to file
40 a final return under this chapter on or before the prescribed date,
41 determined with regard to any extension of time for filing, unless it is
42 shown that such failure is due to reasonable cause and not due to will-
43 ful neglect, there shall be added to the amount required to be shown as
44 tax on such return five percent of the amount of such tax if the failure
45 is for not more than one month, with an additional five percent for each
46 additional month or fraction thereof during which such failure contin-
47 ues, not exceeding twenty-five percent in the aggregate, and, in addi-
48 tion thereto, where a tenant, with respect to any taxable premises, is
49 exempt from tax by reason of paragraph two of subdivision b of section
50 11-704 of this chapter, there shall be imposed a penalty of one hundred
51 dollars.
52 (B) In the case of a failure to file a return of tax within sixty days
53 of the date prescribed for filing of such return, determined with regard
54 to any extension of time for filing, unless it is shown that such fail-
55 ure is due to reasonable cause and not due to willful neglect, the addi-
56 tion to tax under subparagraph (A) of this paragraph shall not be less
S. 8578 818
1 than the lesser of one hundred dollars or one hundred percent of the
2 amount required to be shown as tax on such return.
3 (C) For purposes of this paragraph, the amount of tax required to be
4 shown on the return shall be reduced by the amount of any part of the
5 tax which is paid on or before the date prescribed for payment of the
6 tax and by the amount of any credit against the tax which may be claimed
7 upon the return.
8 (2) Failure to pay tax shown on final return. In case of failure to
9 pay the amount shown as tax on a final return required to be filed under
10 this chapter on or before the prescribed date, determined with regard to
11 any extension of time for payment, unless it is shown that such failure
12 is due to reasonable cause and not due to willful neglect, there shall
13 be added to the amount shown as tax on such return one-half of one
14 percent of the amount of such tax if the failure is not for more than
15 one month, with an additional one-half of one percent for each addi-
16 tional month or fraction thereof during which such failure continues,
17 not exceeding twenty-five percent in the aggregate. For the purpose of
18 computing the addition for any month the amount of tax shown on the
19 return shall be reduced by the amount of any part of the tax which is
20 paid on or before the beginning of such month and by the amount of any
21 credit against the tax which may be claimed upon the return. If the
22 amount of tax required to be shown on a return is less than the amount
23 shown as tax on such return, this paragraph shall be applied by substi-
24 tuting such lower amount.
25 (3) Failure to pay tax required to be shown on final return. In case
26 of failure to pay any amount in respect of any tax required to be shown
27 on a final return required to be filed under this chapter which is not
28 so shown, including a determination made pursuant to section 11-708 of
29 this chapter, within ten days of the date of a notice and demand there-
30 for, unless it is shown that such failure is due to reasonable cause and
31 not due to willful neglect, there shall be added to the amount of tax
32 stated in such notice and demand one-half of one percent of such tax if
33 the failure is not for more than one month, with an additional one-half
34 of one percent for each additional month or fraction thereof during
35 which such failure continues, not exceeding twenty-five percent in the
36 aggregate. For the purpose of computing the addition for any month, the
37 amount of tax stated in the notice and demand shall be reduced by the
38 amount of any part of the tax which is paid before the beginning of such
39 month.
40 (4) Limitations on additions.
41 (A) With respect to any final return, the amount of the addition under
42 paragraph one of this subdivision shall be reduced by the amount of the
43 addition under paragraph two of this subdivision for any month to which
44 an addition applies under both such paragraphs one and two. In any case
45 described in subparagraph (B) of paragraph one of this subdivision, the
46 amount of the addition under such paragraph one shall not be reduced
47 below the amount provided in such subparagraph.
48 (B) With respect to any final return, the maximum amount of the addi-
49 tion permitted under paragraph three of this subdivision shall be
50 reduced by the amount of the addition under paragraph one of this subdi-
51 vision, determined without regard to subparagraph (B) of such paragraph
52 one, which is attributable to the tax for which the notice and demand is
53 made and which is not paid within ten days of such notice and demand.
54 (d) Underpayment due to negligence. (1) If any part of an underpayment
55 of tax is due to negligence or intentional disregard of this chapter or
56 any rules or regulations hereunder, but without intent to defraud, there
S. 8578 819
1 shall be added to the tax a penalty equal to five percent of the under-
2 payment.
3 (2) There shall be added to the tax, in addition to the amount deter-
4 mined under paragraph one of this subdivision, an amount equal to fifty
5 percent of the interest payable under subdivision (b) of this section
6 with respect to the portion of the underpayment described in such para-
7 graph one which is attributable to the negligence or intentional disre-
8 gard referred to in such paragraph one, for the period beginning on the
9 last date prescribed by law for payment of such underpayment, determined
10 without regard to any extension, and ending on the date of the assess-
11 ment of the tax, or, if earlier, the date of the payment of the tax.
12 (e) Underpayment due to fraud. (1) If any part of an underpayment of
13 tax is due to fraud, there shall be added to the tax a penalty equal to
14 fifty percent of the underpayment.
15 (2) There shall be added to the tax, in addition to the penalty deter-
16 mined under paragraph one of this subdivision, an amount equal to fifty
17 percent of the interest payable under subdivision (b) of this section
18 with respect to the portion of the underpayment described in such para-
19 graph one which is attributable to fraud, for the period beginning on
20 the last date prescribed by law for payment of such underpayment, deter-
21 mined without regard to any extension, and ending on the date of the
22 assessment of the tax, or, if earlier, the date of the payment of the
23 tax.
24 (3) The penalty under this subdivision shall be in lieu of any other
25 addition to tax imposed by subdivision (c) or (d) of this section.
26 (f) Additional penalty. Any person who, with fraudulent intent, shall
27 fail to pay any tax imposed by this chapter, or to make, render, sign or
28 certify any return, or to supply any information within the time
29 required by or under this chapter, shall be liable for a penalty of not
30 more than one thousand dollars, in addition to any other amounts
31 required under this chapter to be imposed, assessed and collected by the
32 commissioner of finance. The commissioner of finance shall have the
33 power, in his or her discretion, to waive, reduce or compromise any
34 penalty under this subdivision.
35 (g) The interest and penalties imposed by this section shall be paid
36 and disposed of in the same manner as other revenues from this chapter.
37 Unpaid interest and penalties may be enforced in the same manner as the
38 tax imposed by this chapter.
39 (h) (1) Authority to set interest rates. The commissioner of finance
40 shall set the rate of interest to be paid pursuant to subdivisions (a)
41 and (b) of this section, but if no such rate of interest is set, such
42 rate shall be deemed to be set at seven and one-half percent per annum.
43 Such rate shall be the same for each subdivision and shall be the rate
44 prescribed in paragraph two of this subdivision but shall not be less
45 than seven and one-half percent per annum. Any such rate set by the
46 commissioner of finance shall apply to taxes, or any portion thereof,
47 which remain or become due on or after the date on which such rate
48 becomes effective and shall apply only with respect to interest computed
49 or computable for periods or portions of periods occurring in the period
50 in which such rate is in effect.
51 (2) General rule. The rate of interest set under this subdivision
52 shall be the sum of (i) the federal short-term rate as provided under
53 paragraph three of this subdivision, plus (ii) seven percentage points.
54 (3) Federal short-term rate. For purposes of this subdivision:
55 (A) The federal short-term rate for any month shall be the federal
56 short-term rate determined by the United States secretary of the treas-
S. 8578 820
1 ury during such month in accordance with subsection (d) of section
2 twelve hundred seventy-four of the internal revenue code for use in
3 connection with section six thousand six hundred twenty-one of the
4 internal revenue code. Any such rate shall be rounded to the nearest
5 full percent, or, if a multiple of one-half of one percent, such rate
6 shall be increased to the next highest full percent.
7 (B) Period during which rate applies.
8 (i) In general. Except as provided in clause (ii) of this subpara-
9 graph, the federal short-term rate for the first month in each calendar
10 quarter shall apply during the first calendar quarter beginning after
11 such month.
12 (ii) Special rule for the month of September, nineteen hundred eight-
13 y-nine. The federal short-term rate for the month of April, nineteen
14 hundred eighty-nine shall apply with respect to setting the rate of
15 interest for the month of September, nineteen hundred eighty-nine.
16 (4) Publication of interest rate. The commissioner of finance shall
17 cause to be published in the City Record, and give other appropriate
18 general notice of, the interest rate to be set under this subdivision no
19 later than twenty days preceding the first day of the calendar quarter
20 during which such interest rate applies. The setting and publication of
21 such interest rate shall not be included within paragraph (a) of subdi-
22 vision five of section one thousand forty-one of the city charter of the
23 preceding municipality as it existed January first, nineteen hundred
24 ninety-four relating to the definition of a rule.
25 (i) Miscellaneous. (1) The certificate of the commissioner of finance
26 to the effect that a tax has not been paid, that a return has not been
27 filed, or that information has not been supplied pursuant to the
28 provisions of this chapter shall be prima facie evidence thereof.
29 (2) Cross-reference: For criminal penalties, see chapter forty of
30 this title.
31 (j) Substantial understatement of liability. If there is a substan-
32 tial understatement of tax for any tax year, there shall be added to the
33 tax an amount equal to ten percent of the amount of any underpayment
34 attributable to such understatement. For purposes of this subdivision,
35 there is a substantial understatement of tax for any tax year if the
36 amount of the understatement for the tax year exceeds the greater of ten
37 percent of the tax required to be shown on the final return for the tax
38 year or five thousand dollars. For purposes of this subdivision, the
39 term "understatement" means the excess of the amount of the tax required
40 to be shown on the final return for the tax year, over the amount of the
41 tax imposed which is shown on the return, reduced by any rebate. The
42 amount of such understatement shall be reduced by that portion of the
43 understatement which is attributable to the tax treatment of any item by
44 the taxpayer if there is or was substantial authority for such treat-
45 ment, or any item with respect to which the relevant facts affecting the
46 item's tax treatment are adequately disclosed in the return or in a
47 statement attached to the return. The commissioner of finance may waive
48 all or any part of the addition to tax provided by this subdivision on a
49 showing by the taxpayer that there was reasonable cause for the under-
50 statement, or part thereof, and that the taxpayer acted in good faith.
51 (k) Aiding or assisting in the giving of fraudulent returns, reports,
52 statements or other documents. (1) Any person who, with the intent that
53 tax be evaded, shall, for a fee or other compensation or as an incident
54 to the performance of other services for which such person receives
55 compensation, aid or assist in, or procure, counsel, or advise the prep-
56 aration or presentation under, or in connection with any matter arising
S. 8578 821
1 under this chapter of any return, report, statement or other document
2 which is fraudulent or false as to any material matter, or supply any
3 false or fraudulent information, whether or not such falsity or fraud is
4 with the knowledge or consent of the person authorized or required to
5 present such return, report, statement or other document shall pay a
6 penalty not exceeding ten thousand dollars.
7 (2) For purposes of paragraph one of this subdivision, the term
8 "procures" includes ordering, or otherwise causing, a subordinate to do
9 an act, and knowing of, and not attempting to prevent, participation by
10 a subordinate in an act. The term "subordinate" means any other person,
11 whether or not a director, officer, employee, or agent of the taxpayer
12 involved, over whose activities the person has direction, supervision,
13 or control.
14 (3) For purposes of paragraph one of this subdivision, a person
15 furnishing typing, reproducing, or other mechanical assistance with
16 respect to a document shall not be treated as having aided or assisted
17 in the preparation of such document by reason of such assistance.
18 (4) The penalty imposed by this subdivision shall be in addition to
19 any other penalty provided by law.
20 § 11-716 Returns to be secret. a. Except in accordance with proper
21 judicial order or as otherwise provided by law, it shall be unlawful for
22 the commissioner of finance, the department of finance of the city, any
23 officer or employee of the department of finance of the city, any person
24 engaged or retained by such department on an independent contract basis,
25 the tax appeals tribunal, any commissioner or employee of such tribunal,
26 or any person who, pursuant to this section, is permitted to inspect any
27 return or to whom a copy, an abstract or a portion of any return is
28 furnished, or to whom any information contained in any return is
29 furnished, to divulge or make known in any manner any information relat-
30 ing to the business of a taxpayer contained in any return required under
31 this chapter. The officers charged with the custody of such returns
32 shall not be required to produce any of them or evidence of anything
33 contained in them in any action or proceeding in any court, except on
34 behalf of the commissioner of finance in an action or proceeding under
35 the provisions of this chapter, or on behalf of any party to any action
36 or proceeding under the provisions of this chapter when the returns or
37 facts shown thereby are directly involved in such action or proceeding,
38 in either of which events the courts may require the production of, and
39 may admit in evidence so much of said returns or of the facts shown
40 thereby, as are pertinent to the action or proceeding and no more.
41 Nothing in this subdivision shall be construed to prohibit the delivery
42 to a taxpayer or the taxpayer's duly authorized representative of a
43 certified copy of any return filed in connection with his or her tax;
44 nor to prohibit the delivery of such a certified copy of such return or
45 of any information contained in or relating thereto, to the United
46 States of America or any department thereof, the state of New York or
47 any department thereof, any agency or any department of the city of
48 Staten Island provided the same is requested for official business; nor
49 to prohibit the inspection for official business of such returns by the
50 corporation counsel or other legal representatives of the city or by the
51 district attorney of the county of Richmond; nor to prohibit the publi-
52 cation of statistics so classified as to prevent the identification of
53 particular returns or items thereof.
54 b. (1) Any officer or employee of the city who willfully violates the
55 provisions of subdivision a of this section shall be dismissed from
S. 8578 822
1 office and be incapable of holding any public office in this city for a
2 period of five years thereafter.
3 (2) Cross-reference: For criminal penalties, see chapter forty of this
4 title.
5 c. This section shall be deemed a state statute for purposes of para-
6 graph (a) of subdivision two of section eighty-seven of the public offi-
7 cers law.
8 d. Notwithstanding anything in subdivision a of this section to the
9 contrary, if a taxpayer has petitioned the tax appeals tribunal for
10 administrative review as provided in section one hundred seventy of the
11 charter of the preceding municipality as it existed January first, nine-
12 teen hundred ninety-four, the commissioner of finance shall be author-
13 ized to present to the tribunal any report or return of such taxpayer,
14 or any information contained therein or relating thereto, which may be
15 material or relevant to the proceeding before the tribunal. The tax
16 appeals tribunal shall be authorized to publish a copy or a summary of
17 any decision rendered pursuant to section one hundred seventy-one of the
18 charter of the preceding municipality as it existed January first, nine-
19 teen hundred ninety-four.
20 § 11-717 Notices and limitation of time. a. Any notice authorized or
21 required under the provisions of this chapter may be given to the person
22 for whom it is intended by mailing it in a postpaid envelope addressed
23 to such person at the address given in the last return filed by such
24 person pursuant to the provisions of this chapter or in any application
25 made by such person or if no return has been filed or application made,
26 then to such address as may be obtainable. The mailing of a notice as in
27 this paragraph provided for shall be presumptive evidence of the receipt
28 of the same by the person to whom addressed. Any period of time which is
29 determined according to the provisions of this chapter by the giving of
30 notice shall commence to run from the date of mailing of such notice as
31 in this subdivision provided.
32 b. The provisions of the civil practice law and rules or any other law
33 relative to limitations of time for the enforcement of a civil remedy
34 shall not apply to any proceeding or action taken by the city to levy,
35 appraise, assess, determine or enforce the collection of any tax or
36 penalty provided by this chapter. However, except in the case of a
37 wilfully false or fraudulent return with intent to evade the tax, no
38 assessment of additional tax shall be made after the expiration of more
39 than three years from the date of the final return for the tax year to
40 which the assessment relates; provided, however, that where no return
41 has been made as provided by law, the tax may be assessed at any time.
42 c. Where before the expiration of the period prescribed herein for the
43 assessment of an additional tax, a person has consented in writing that
44 such period be extended, the amount of such additional tax due may be
45 determined at any time within such extended period. The period so
46 extended may be further extended by subsequent consents in writing made
47 before the expiration of the extended period.
48 d. If any return, claim, statement, notice, application, or other
49 document required to be filed, or any payment required to be made, with-
50 in a prescribed period or on or before a prescribed date under authority
51 of any provision of this chapter is, after such period or such date,
52 delivered by United States mail to the commissioner of finance, the tax
53 appeals tribunal, bureau, office, officer or person with which or with
54 whom such document is required to be filed, or to which or to whom such
55 payment is required to be made, the date of the United States postmark
56 stamped on the envelope shall be deemed to be the date of delivery. This
S. 8578 823
1 subdivision shall apply only if the postmark date falls within the
2 prescribed period or on or before the prescribed date for the filing of
3 such document, or for making the payment, including any extension grant-
4 ed for such filing or payment, and only if such document or payment was
5 deposited in the mail, postage prepaid, properly addressed to the
6 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
7 cer or person with which or with whom the document is required to be
8 filed or to which or to whom such payment is required to be made. If any
9 document is sent by United States registered mail, such registration
10 shall be prima facie evidence that such document was delivered to the
11 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
12 cer or person to which or to whom addressed, and the date of registra-
13 tion shall be deemed the postmark date. The commissioner of finance or,
14 where relevant, the tax appeals tribunal is authorized to provide by
15 regulation the extent to which the provisions of this subdivision with
16 respect to prima facie evidence of delivery and the postmark date shall
17 apply to certified mail. Except as provided in subdivision f of this
18 section, this subdivision shall apply in the case of postmarks not made
19 by the United States postal service only if and to the extent provided
20 by regulation of the commissioner of finance or, where relevant, the tax
21 appeals tribunal.
22 e. When the last day prescribed under authority of this chapter,
23 including any extension of time, for performing any act falls on a
24 Saturday, Sunday or legal holiday in the state, the performance of such
25 act shall be considered timely if it is performed on the next succeeding
26 day which is not a Saturday, Sunday or legal holiday.
27 f. (1) Any reference in subdivision d of this section to the United
28 States mail shall be treated as including a reference to any delivery
29 service designated by the secretary of the treasury of the United States
30 pursuant to section seventy-five hundred two of the internal revenue
31 code and any reference in subdivision d of this section to a United
32 States postmark shall be treated as including a reference to any date
33 recorded or marked in the manner described in section seventy-five
34 hundred two of the internal revenue code by a designated delivery
35 service. If the commissioner of finance finds that any delivery service
36 designated by such secretary is inadequate for the needs of the city,
37 the commissioner of finance may withdraw such designation for purposes
38 of this title. The commissioner of finance may also designate additional
39 delivery services meeting the criteria of section seventy-five hundred
40 two of the internal revenue code for purposes of this title, or may
41 withdraw any such designation if the commissioner of finance finds that
42 a delivery service so designated is inadequate for the needs of the
43 city. Any reference in subdivision d of this section to the United
44 States mail shall be treated as including a reference to any delivery
45 service designated by the commissioner of finance and any reference in
46 subdivision d of this section to a United States postmark shall be
47 treated as including a reference to any date recorded or marked in the
48 manner described in section seventy-five hundred two of the internal
49 revenue code by a delivery service designated by the commissioner of
50 finance. Notwithstanding the foregoing, any withdrawal of designation or
51 additional designation by the commissioner of finance shall not be
52 effective for purposes of service upon the tax appeals tribunal, unless
53 and until such withdrawal of designation or additional designation is
54 ratified by the president of the tax appeals tribunal.
55 (2) Any equivalent of registered or certified mail designated by the
56 United States secretary of the treasury, or as may be designated by the
S. 8578 824
1 commissioner of finance pursuant to the same criteria used by such
2 secretary for such designations pursuant to section seventy-five hundred
3 two of the internal revenue code, shall be included within the meaning
4 of registered or certified mail as used in subdivision d of this
5 section. If the commissioner of finance finds that any equivalent of
6 registered or certified mail designated by such secretary or the commis-
7 sioner of finance is inadequate for the needs of the city, the commis-
8 sioner of finance may withdraw such designation for purposes of this
9 title. Notwithstanding the provisions of this paragraph, any withdrawal
10 of designation or additional designation by the commissioner of finance
11 shall not be effective for purposes of service upon the tax appeals
12 tribunal, unless and until such withdrawal of designation or additional
13 designation is ratified by the president of the tax appeals tribunal.
14 § 11-718 Construction and enforcement. This chapter shall be construed
15 in conformity with chapter two hundred fifty-seven of the laws of nine-
16 teen hundred sixty-three, pursuant to which it is enacted.
17 § 11-719 Annual report. a. No later than September first, two thousand
18 twenty-five, and every September first thereafter, the department of
19 finance shall submit to the mayor and speaker of the council, and make
20 publicly available online, a report on the commercial rent tax. Such
21 report shall include the following information for the prior commercial
22 rent tax period, on the condition that any category that only includes
23 one taxpayer shall not be reported for any tax period:
24 1. the distribution of taxable premises and taxpayers by base rent
25 range, including the number and zip codes of the taxable premises for
26 which the commercial rent tax was collected, the number of taxpayers who
27 paid the tax, the number of taxpayers who paid the tax on more than one
28 property and the total amount of commercial rent tax paid for the set of
29 taxable premises and taxpayers within each range;
30 2. the distribution of taxable premises and taxpayers by industry,
31 including the number and zip codes of the taxable premises for which the
32 commercial rent tax was collected, the number of taxpayers who paid the
33 tax, the number of taxpayers who paid the tax on more than one property
34 and the total amount of commercial rent tax paid for the set of taxable
35 premises and taxpayers within each industry;
36 3. the total amount of tax collected and the average tax liability per
37 premises for each of the prior ten tax years;
38 4. the total amount of tax collected and the average tax liability per
39 taxpayer for each of the prior ten tax years;
40 5. a comparison of the total commercial rent tax collected to the
41 average market value of commercial properties in the city of Staten
42 Island as determined by the department for each of the prior ten tax
43 years;
44 6. the number of taxable premises and the number of taxpayers by base
45 rent range and industry who received the credit set forth in section
46 11-704.4 of this chapter; and
47 7. any other information deemed relevant for inclusion by the depart-
48 ment.
49 b. For purposes of the report required by subdivision a of this
50 section, the base rent ranges shall be:
51 1. between $250,000 and $274,999;
52 2. between $275,000 and $299,999;
53 3. between $300,000 and $349,999;
54 4. between $350,000 and $399,999;
55 5. between $400,000 and $449,999;
56 6. between $450,000 and $499,999;
S. 8578 825
1 7. between $500,000 and $549,999;
2 8. between $550,000 and $599,999;
3 9. between $600,000 and $699,999;
4 10. between $700,000 and $799,999;
5 11. between $800,000 and $899,999;
6 12. between $900,000 and $999,999;
7 13. between $1,000,000 and $1,999,999;
8 14. between $2,000,000 and $2,999,999;
9 15. between $3,000,000 and $3,999,999;
10 16. between $4,000,000 and $4,999,999;
11 17. between $5,000,000 and $9,999,999; and
12 18. more than $10,000,000.
13 CHAPTER 8
14 TAX ON COMMERCIAL MOTOR VEHICLES AND MOTOR VEHICLES
15 FOR TRANSPORTATION OF PASSENGERS
16 § 11-801 Definitions. When used in this chapter, the following terms
17 shall mean or include:
18 1. "Person." An individual, partnership, corporation, joint-stock
19 company, society, association, receiver, lessee, trustee, estate, refer-
20 ee, assignee, or any other person acting in a fiduciary or represen-
21 tative capacity, whether appointed by a court or otherwise, and any
22 combination of individuals.
23 2. "Motor vehicle." Any vehicle operated upon a public highway or
24 public street propelled by any power other than muscular power.
25 3. "Commercial motor vehicle." (a) Each truck, tractor, trailer or
26 semi-trailer, and any other motor vehicle constructed or specially
27 equipped for the transportation of goods, wares and merchandise which is
28 commonly known as an auto truck or light delivery car;
29 (b) Any traction engine, road roller, tractor crane, truck crane,
30 power shovel, road building machine, snow plow, road sweeper, sand
31 spreader, well driller, or well servicing rig; and
32 (c) Any earth moving equipment as defined in the vehicle and traffic
33 law; provided that such motor vehicles are used principally in the city
34 or used principally in connection with a business carried on within the
35 city.
36 4. "Motor vehicle for transportation of passengers." (a) Any motor
37 vehicle licensed as a taxicab or as a coach, or any motor vehicle, not
38 so licensed, which carries passengers for compensation, including limou-
39 sine service, whether the compensation paid by or on behalf of the
40 passenger is based on mileage, trip, time consumed or any other basis;
41 and
42 (b) Any omnibus, except one operated pursuant to a franchise when,
43 under such franchise or under a contract, relating to transportation to
44 or from airports, with the port of New York authority, the holder of the
45 franchise pays to the city or to the port of New York authority a
46 percentage of its gross earnings or gross receipts or one used exclu-
47 sively in interstate commerce; provided such motor vehicles, as defined
48 in paragraph (a) or (b) of this subdivision, are used regularly, even
49 though not principally, in the city; and further provided that this
50 definition shall not be deemed to include any motor vehicle used princi-
51 pally for the transportation of children to and from schools and day
52 camps operated by non-profit agencies as defined in subdivision four of
53 section 11-803 of this chapter, any motor vehicle used exclusively for
54 transportation of persons in connection with funerals or any motor vehi-
55 cle for transportation of passengers where neither the owner of such
S. 8578 826
1 motor vehicle nor any person or business engaged in transporting passen-
2 gers by motor vehicle for-hire that is affiliated with such owner has a
3 place of business in such city, a telephone number in such city, or
4 solicits business or specifically advertises in such city.
5 5. "Owner." Any person owning a commercial motor vehicle or a motor
6 vehicle for the transportation of passengers and shall include a
7 purchaser under a reserve title contract, conditional sales agreement or
8 vendor's lien agreement. In addition, an owner shall be deemed to
9 include any lessee, licensee or bailee having the exclusive use of a
10 commercial motor vehicle or a vehicle for the transportation of passen-
11 gers, under a lease or otherwise, for a period of thirty days or more.
12 6. "Omnibus." Any motor vehicle for transportation of passengers for
13 hire having a seating capacity of more than seven persons.
14 7. "Use." Any use of a motor vehicle upon the public highways or
15 streets of the city.
16 8. "Maximum gross weight." The weight of the motor vehicle plus the
17 weight of the maximum load to be carried, if any, by such vehicle.
18 9. "Registered owner." The person who registers a motor vehicle as
19 owner thereof pursuant to the registration requirements of the vehicle
20 and traffic law of the state of New York.
21 10. "Registration fee." The full annual fee or charge prescribed in
22 the vehicle and traffic law of the state of New York for the registra-
23 tion of a motor vehicle.
24 11. "City." The city of Staten Island.
25 12. "Comptroller." The comptroller of the city.
26 13. "Commissioner of finance." The commissioner of finance of the
27 city.
28 14. "Tax year." June first of any calendar year through May thirty-
29 first of the following calendar year.
30 15. "Medallion taxicab." A motor vehicle for transportation of passen-
31 gers which is duly licensed as a taxicab by the taxi and limousine
32 commission and permitted to accept hails from passengers in the street.
33 16. "Tax appeals tribunal." The tax appeals tribunal established by
34 section one hundred sixty-eight of the charter of the preceding munici-
35 pality as it existed January first, nineteen hundred ninety-four.
36 17. "Commissioner of motor vehicles." The commissioner of motor vehi-
37 cles of the state of New York.
38 18. "Taxi and limousine commission." The New York city taxi and limou-
39 sine commission.
40 § 11-802 Imposition of tax. a. In addition to any and all other taxes,
41 including the compensating use tax, there is hereby imposed and there
42 shall be paid annually for each tax year beginning June first, nineteen
43 hundred sixty, a tax on the use in the city of motor vehicles to be paid
44 by the owners of such vehicles as follows:
45 1. (A) For tax years ending on or before May thirty-first, nineteen
46 hundred seventy-two, on commercial vehicles, twenty dollars for each
47 such vehicle having a maximum gross weight of five tons or less, and
48 thirty dollars for each such vehicle having a maximum gross weight of
49 more than five tons, provided, however, that for each such vehicle
50 having a registration fee prescribed in the vehicle and traffic law of
51 the state of New York which is less than twenty dollars, the tax shall
52 be an amount equal to such registration fee;
53 (B) For tax years beginning on and after June first, nineteen hundred
54 seventy-two but before June first, nineteen hundred ninety, on commer-
55 cial vehicles, forty dollars for each such vehicle having a maximum
56 gross weight of five tons or less, and sixty dollars for each such vehi-
S. 8578 827
1 cle having a maximum gross weight of more than five tons, provided,
2 however, that for each such vehicle having a registration fee prescribed
3 in the vehicle and traffic law of the state of New York which is less
4 than forty dollars, the tax shall be an amount equal to such registra-
5 tion fee.
6 (C) For tax years beginning on and after June first, nineteen hundred
7 ninety, on commercial vehicles, forty dollars for each such vehicle
8 having a maximum gross weight of ten thousand pounds or less, two
9 hundred dollars for each such vehicle having a maximum gross weight of
10 more than ten thousand pounds but not more than twelve thousand five
11 hundred pounds, two hundred seventy-five dollars for each such vehicle
12 having a maximum gross weight of more than twelve thousand five hundred
13 pounds but not more than fifteen thousand pounds and three hundred
14 dollars for each such vehicle having a maximum gross weight of more than
15 fifteen thousand pounds, provided, however, that for each such vehicle
16 having a registration fee prescribed in the vehicle and traffic law of
17 the state of New York which is less than forty dollars, the tax shall be
18 an amount equal to such registration fee.
19 2. (A) For tax years ending on or before May thirty-first, nineteen
20 hundred ninety, on motor vehicles for the transportation of passengers
21 other than medallion taxicabs, and for tax years ending on or before May
22 thirty-first, nineteen hundred eighty-nine, on medallion taxicabs, one
23 hundred dollars for each such vehicle.
24 (B) For the tax year beginning June first, nineteen hundred eighty-
25 nine and ending May thirty-first, nineteen hundred ninety, on medallion
26 taxicabs, five hundred dollars for each such vehicle.
27 (C) For tax years beginning on and after June first, nineteen hundred
28 ninety but before May thirty-first, two thousand nineteen, on medallion
29 taxicabs, one thousand dollars for each such vehicle, and on all other
30 motor vehicles for transportation of passengers, four hundred dollars
31 for each such vehicle.
32 (D) For tax years beginning on or after June first, two thousand nine-
33 teen, on all motor vehicles for transportation of passengers, including
34 medallion taxicabs, four hundred dollars for each such vehicle.
35 b. To the extent that the tax as imposed by subdivision a of this
36 section may be invalid solely because it is based on the use in the city
37 of the motor vehicles, the tax shall also be deemed to be based on the
38 privilege of using the public highways or streets of the city by such
39 motor vehicle. Under such circumstances the rate of tax shall be the
40 same and all other provisions of this chapter shall be equally applica-
41 ble.
42 c. If the first use of any motor vehicle subject to the tax imposed
43 under this chapter occurs on or after December first and before March
44 first in any tax year, the tax for that year shall be one-half of the
45 tax hereinabove provided; and, if the first such use occurs on or after
46 March first in any tax year, the tax for that tax year shall be one-
47 fourth of such tax.
48 d. In applying the tax on commercial motor vehicles with respect to
49 tractors, trailers and semi-trailers, the tax shall be measured by the
50 weight of the tractor plus the maximum gross weight of the trailer or
51 semi-trailer with the greatest such maximum gross weight to be drawn by
52 such tractor. No trailer or semi-trailer shall be subject to any sepa-
53 rate or additional tax under this chapter.
54 § 11-803 Exemptions. The provisions of this chapter shall not apply
55 to motor vehicles owned and operated, or leased for their exclusive use
56 by:
S. 8578 828
1 1. The state of New York, or any public corporation, including a
2 corporation created pursuant to agreement or compact with another state
3 or the Dominion of Canada, improvement district or other political
4 subdivision of the state;
5 2. The United States of America;
6 3. The United Nations or other world-wide international organizations
7 of which the United States of America is a member;
8 4. Any corporation, or association, or trust, or community chest, fund
9 or foundation, organized and operated exclusively for religious, chari-
10 table or educational purposes, or for the prevention of cruelty to chil-
11 dren or animals, and no part of the net earnings of which inures to the
12 benefit of any private shareholder or individual and no substantial part
13 of the activities of which is carrying on propaganda, or otherwise
14 attempting to influence legislation; provided, however, that nothing in
15 this subdivision shall include an organization operated for the primary
16 purpose of carrying on a trade or business for profit, whether or not
17 all of its profits are payable to one or more organizations described in
18 this subdivision;
19 5. Any foreign nation or representative of a foreign nation with
20 respect to motor vehicles for which they need not pay a registration fee
21 under the provisions of the vehicle and traffic law;
22 6. Dealers in new and used motor vehicles where the use of the motor
23 vehicle is confined solely to demonstrations to prospective customers or
24 to delivery by or to the dealer and the vehicle bears dealer's license
25 plates.
26 § 11-804 Presumption and burden of proof. For the purpose of the
27 proper administration of this chapter and to prevent evasion of the tax
28 hereby imposed, it shall be presumed that all motor vehicles used in the
29 city of the types described in paragraphs (a), (b) and (c) of subdivi-
30 sion three of section 11-801 of this chapter are used principally in the
31 city or used principally in connection with a business carried on within
32 the city and are subject to the tax until the contrary is established;
33 and it shall be presumed that all motor vehicles used in the city of the
34 types described in paragraphs (a) and (b) of subdivision four of section
35 11-801 of this chapter are used regularly, even though not principally
36 in the city and are subject to the tax until the contrary is estab-
37 lished. The burden of proving that a motor vehicle is not taxable under
38 this chapter shall be on the owner of the motor vehicle.
39 § 11-805 Records to be kept. Every owner of a motor vehicle subject
40 to tax under this chapter shall keep such records of his or her vehicles
41 and of their use in the city in such form as the commissioner of finance
42 may by regulation require. Such records shall be offered for inspection
43 and examination at any time upon demand by the commissioner of finance
44 or the commissioner's duly authorized agent or employee and shall be
45 preserved for a period of three years except that the commissioner of
46 finance may consent to their destruction within that period or may
47 require that they be kept longer.
48 § 11-806 Registration. a. By July thirteenth, nineteen hundred sixty
49 or, upon acquiring any motor vehicle subject to tax hereunder after such
50 date, within two days of such acquisition, every owner shall file with
51 the commissioner of finance a certificate of registration in such form
52 as prescribed by the commissioner of finance.
53 b. In order to determine whether motor vehicles are subject to the tax
54 under this chapter and to facilitate administration thereof an informa-
55 tion registration certificate in such form as is prescribed by the
S. 8578 829
1 commissioner of finance shall be filed with the commissioner of finance
2 by any person who owns or acquires:
3 1. A motor vehicle of a type described in paragraph (a), (b) or (c) of
4 subdivision three of section 11-801 of this chapter which is registered
5 in the city under the vehicle and traffic law or is used in the city in
6 connection with a business carried on within the city; or
7 2. A motor vehicle of the type described in paragraphs (a) and (b) of
8 subdivision four of section 11-801 of this chapter which is registered
9 in the city under the vehicle and traffic law or is used in the city.
10 Such an information registration certificate shall be filed by July
11 thirteenth, nineteen hundred sixty or, if a motor vehicle is acquired
12 after such date, within two days after such acquisition. An information
13 registration certificate, however, need not be filed with respect to any
14 motor vehicle for which a registration certificate has been filed pursu-
15 ant to subdivision a of this section. The commissioner of finance may,
16 by regulation, provide that information registration certificates need
17 not be filed with respect to a type of motor vehicle or with respect to
18 any general group within a type of motor vehicle.
19 § 11-807 Returns. a. On or before the twentieth day of June in each
20 year commencing with the year nineteen hundred sixty, every owner of a
21 motor vehicle subject to tax under this chapter shall file a return with
22 the commissioner of finance. A supplemental return shall also be filed
23 by every owner with regard to each motor vehicle subject to tax acquired
24 during any tax year at a time subsequent to the filing of the owner's
25 regular return. Such supplemental return shall be filed with the
26 commissioner of finance within a stated time, as fixed by regulation of
27 the commissioner of finance, after the acquisition of the motor vehicle.
28 An owner who acquires a motor vehicle subject to the tax after the
29 commencement of a tax year and who has not filed a return or supple-
30 mental return with respect to such motor vehicle shall file a return
31 with respect to it within two days after its acquisition by the owner.
32 b. The commissioner of finance, by regulation, may require that each
33 person required under this chapter to file an information registration
34 certificate file an information return with the commissioner of finance
35 annually or at such other times as the commissioner deems appropriate
36 for proper administration of this chapter. The commissioner of finance
37 may, by regulation, provide that information returns need not be filed
38 or that they be filed at different times with respect to a type of motor
39 vehicle or with respect to any general group within a type of motor
40 vehicle or with respect to any particular circumstances.
41 c. The commissioner of finance may permit or require returns, supple-
42 mental returns or information returns to be filed at times other than
43 those specified in the commissioner's regulations. If the commissioner
44 deems it necessary in order to insure payment of the tax imposed by this
45 chapter, the commissioner of finance may require any return, supple-
46 mental return or information return to be filed with him or her at a
47 time other than that fixed by such commissioner.
48 d. The form of returns, supplemental returns and information returns
49 shall be prescribed by the commissioner of finance and shall contain
50 such information as the commissioner may deem necessary for the proper
51 administration of this chapter. The commissioner of finance may require
52 amended returns, amended supplemental returns or amended information
53 returns to be filed within twenty days after notice and to contain the
54 information specified in the notice.
55 e. If a return, supplemental return or information return is not
56 filed, or if a return of any kind when filed is incorrect or insuffi-
S. 8578 830
1 cient on its face, the commissioner of finance shall take the necessary
2 steps to enforce the filing of such a return or of a corrected return.
3 § 11-808 Payment of tax. a. At the time of filing a return or supple-
4 mental return the owner shall pay to the commissioner of finance the tax
5 imposed by this chapter. Such tax shall be due and payable on the last
6 day on which such return or supplemental return is required to be filed,
7 regardless of whether such a return is filed or whether the return which
8 is filed correctly indicates the amount of tax due.
9 b. Where an owner of a motor vehicle subject to tax under this chapter
10 replaces it with another motor vehicle during a tax year, the owner
11 shall be entitled, upon approval by the commissioner of finance, to have
12 any tax paid with respect to the replaced vehicle credited toward the
13 tax payable with respect to the replacement vehicle for the balance of
14 such tax year, and the owner shall pay no additional tax for such tax
15 year with respect to it unless its nature or its maximum gross weight
16 requires the payment of a higher amount of tax than that paid with
17 respect to the replaced vehicle. A supplemental return, where required,
18 shall be filed with respect to a replacement vehicle irrespective of
19 whether additional tax is payable. Upon the grant of a waiver of tax by
20 the commissioner of finance a purchaser of a motor vehicle subject to
21 tax under this chapter who purchases it during a tax year from an owner
22 who has paid the tax shall not be required to pay the tax with respect
23 to such motor vehicle for the balance of such tax year if, and only if,
24 the owner obtains, and submits to the commissioner of finance together
25 with his or her return or supplemental return, a certificate or its
26 equivalent, as prescribed by the commissioner of finance, signed by the
27 prior owner to the effect that the prior owner has not had the tax paid
28 credited toward any replacement vehicle and will not seek to obtain such
29 a credit for any replacement vehicle purchased in the future. Nothing
30 contained in this subdivision shall be deemed to authorize a refund
31 merely because a motor vehicle with respect to which the tax has been
32 paid is sold or otherwise disposed of during the course of the tax year.
33 c. Notwithstanding any other provision of law to the contrary, the tax
34 imposed on medallion taxicabs pursuant to subparagraph (C) of paragraph
35 two of subdivision a of section 11-802 of this chapter shall be due and
36 payable in two equal installments, the first of which shall be due and
37 payable on or before the last day on which the return or supplemental
38 return for the tax year is required to be filed, and the second of which
39 shall be due and payable on or before the first day of December in such
40 tax year; provided, however, that if a medallion taxicab is acquired
41 subsequent to the first day of November in such tax year, the full
42 amount of the tax imposed for the tax year shall be due and payable on
43 or before the last day on which the supplemental return with respect to
44 such medallion taxicab is required to be filed.
45 d. Notwithstanding any other provision of law to the contrary, the tax
46 imposed on medallion taxicabs pursuant to subparagraph (B) of paragraph
47 two of subdivision a of section 11-802 of this chapter shall, to the
48 extent not previously paid, be due and payable on or before December
49 first, nineteen hundred eighty-nine; provided, however, that if the tax
50 imposed on a medallion taxicab would, but for the provisions of this
51 subdivision, be due and payable subsequent to December first, nineteen
52 hundred eighty-nine, the due date of such tax shall be determined with-
53 out regard to this subdivision; and provided, further, that nothing in
54 this subdivision shall be deemed to extend the date for payment of any
55 tax imposed by paragraph two of subdivision a of section 11-802 of this
56 chapter.
S. 8578 831
1 e. Notwithstanding any provision of this chapter or of chapter five of
2 title nineteen of the code of the preceding municipality to the contra-
3 ry, the taxi and limousine commission may require by rule the payment of
4 the tax imposed on medallion taxicabs pursuant to this chapter as a
5 condition precedent of the licensing or license renewal of such medal-
6 lion taxicabs, and the taxi and limousine commission shall have the
7 authority to deny the license or the renewal thereof for any medallion
8 taxicab that fails to pay such tax.
9 § 11-809 Stamps and other indicia of payment. a. The commissioner of
10 finance may, by regulation, provide that the payment of the tax imposed
11 by this chapter shall be evidenced by suitable stamps or other indicia
12 of payment in a form prescribed by the commissioner of finance and that
13 every owner shall affix such stamps or other indicia of payment in the
14 manner prescribed by regulation to each motor vehicle for which a tax
15 had been paid, or shall otherwise keep the indicia of payment with the
16 vehicle, readily available for inspection, in the manner prescribed by
17 regulation. The owner or driver of the vehicle, upon demand, shall
18 exhibit the indicia of payment to the commissioner of finance or the
19 commissioner's duly authorized agent or employee or to any police offi-
20 cer of this city or state. The commissioner of finance may, by regu-
21 lation, make similar provision for the use of stamps or other indicia
22 that no tax is payable with respect to particular motor vehicles.
23 b. An owner who sells a motor vehicle shall not transfer any stamp or
24 other indicia of payment to the purchaser except on a sale to a purchas-
25 er to whom the owner has properly given the certificate provided for in
26 section 11-808 of this chapter with regard to not obtaining a credit
27 toward any tax payable with respect to a replacement vehicle. The
28 commissioner of finance shall, by regulation, provide for the
29 destruction of the stamp or other indicia of payment or its return to
30 the commissioner of finance upon all sales except where transfer to the
31 purchaser is permitted and, where the motor vehicle sold has been
32 replaced, for the issuance of replacement stamps or indicia of payment.
33 § 11-809.1 Collection of tax by commissioner of motor vehicles. a.
34 Notwithstanding any provision of this chapter to the contrary, the tax
35 imposed by this chapter on any commercial motor vehicle with a maximum
36 gross weight of ten thousand pounds or less and on any motor vehicle for
37 transportation of passengers, other than a medallion taxicab, shall be
38 collected by the commissioner of motor vehicles, provided that any such
39 motor vehicle is registered or required to be registered pursuant to any
40 provision of section four hundred one of the vehicle and traffic law.
41 The owner of each such motor vehicle shall pay the tax due thereon to
42 the commissioner of motor vehicles on or before the date upon which such
43 owner registers or renews the registration of such motor vehicle or is
44 required to register or renew the registration thereof pursuant to
45 section four hundred one of the vehicle and traffic law.
46 b. Notwithstanding any provision of section four hundred of the vehi-
47 cle and traffic law to the contrary, payment of the tax with respect to
48 a motor vehicle described in subdivision a of this section shall be a
49 condition precedent to the registration or renewal thereof of such motor
50 vehicle and to the issuance of any certificate of registration and
51 plates or removable date tag in accordance with the vehicle and traffic
52 law and the rules and regulations promulgated thereunder, and no such
53 certificate of registration, plates or tag shall be issued unless such
54 tax has been paid. If the registration period applicable to any such
55 vehicle is a period of not less than two years, as a result of the
56 application of the provisions of paragraph c of subdivision five of
S. 8578 832
1 section four hundred one of the vehicle and traffic law, the tax
2 required to be paid pursuant to this section shall be the annual tax
3 specified in section 11-802 of this chapter multiplied by the number of
4 years in the registration period. The commissioner of motor vehicles,
5 upon payment of the tax pursuant to this section or upon the application
6 of any person exempt therefrom, shall furnish to each taxpayer paying
7 the tax a receipt for such tax and to each other taxpayer or exempt
8 person a statement, document or other form prescribed by the commission-
9 er of motor vehicles, showing that such tax has been paid or is not due
10 with respect to such motor vehicle.
11 c. Notwithstanding the definition of the term "tax year" contained in
12 subdivision fourteen of section 11-801 of this chapter, for purposes of
13 the taxes payable to the commissioner of motor vehicles pursuant to this
14 section, "tax year" shall mean the twelve-month registration period
15 applicable to the subject motor vehicle under the vehicle and traffic
16 law and, in the case of a registration period of at least two years,
17 shall mean each succeeding twelve-month period falling within such
18 registration period.
19 d. Where the tax imposed by this chapter has been paid to the commis-
20 sioner of finance with respect to a motor vehicle for a tax year
21 described in subdivision fourteen of section 11-801 of this chapter, and
22 subsequent thereto but within such tax year the same taxpayer pays a tax
23 to the commissioner of the motor vehicles with respect to such motor
24 vehicle pursuant to this section, such taxpayer shall be entitled to a
25 refund or credit from the commissioner of finance for the portion of the
26 tax paid to the commissioner of finance which is attributable to the
27 period beginning on the first day of the first tax year, as the term
28 "tax year" is defined in subdivision c of this section, for which the
29 tax is paid to the commissioner of motor vehicles and ending on the
30 following May thirty-first, provided, however, that no such refund or
31 credit shall be allowed if the amount thereof is less than five dollars.
32 Any refund or credit to which a taxpayer is entitled pursuant to this
33 subdivision shall be promptly refunded or credited, without interest, by
34 the commissioner of finance, and the commissioner of finance may promul-
35 gate such rules as he or she deems necessary to carry out the provisions
36 of this subdivision. Any amount for which the taxpayer is entitled to a
37 refund or credit pursuant to this subdivision may be allowed as a credit
38 against the tax payable to the commissioner of motor vehicles pursuant
39 to this section to the extent and in the manner provided for in the
40 agreement authorized by subdivision k of this section.
41 e. Whenever any fee or portion of a fee paid for the registration of a
42 motor vehicle under the provisions of the vehicle and traffic law is
43 refunded pursuant to the provisions of subdivision one or one-a of
44 section four hundred twenty-eight thereof, the amount of any tax paid to
45 the commissioner of motor vehicles pursuant to this section upon such
46 registration shall also be refunded by the commissioner of motor vehi-
47 cles, provided that where a fee is refunded pursuant to subdivision
48 one-a of such section four hundred twenty-eight, the amount of tax to be
49 refunded shall be limited to the tax paid for a tax year commencing
50 subsequent to the end of the first twelve-month period of such registra-
51 tion.
52 f. Where the annual registration period applicable to a particular
53 class of motor vehicle begins and ends on the same dates for all motor
54 vehicles within such class, the tax payable to the commissioner of motor
55 vehicles pursuant to this section with respect to a motor vehicle within
56 such class which is registered or required to be registered after the
S. 8578 833
1 commencement of such annual registration period shall be determined for
2 such period as follows:
3 1. If such motor vehicle is registered or required to be registered
4 before the first day of the seventh month of such period, the tax shall
5 be the amount specified in subdivision a of section 11-802 of this chap-
6 ter.
7 2. If such motor vehicle is registered or required to be registered on
8 or after the first day of the seventh month of such period but before
9 the first day of the tenth month of such period, the tax shall be one-
10 half of the amount specified in subdivision a of section 11-802 of this
11 chapter.
12 3. If such motor vehicle is registered or required to be registered on
13 or after the first day of the tenth month of such period, the tax shall
14 be one-fourth of the amount specified in subdivision a of section 11-802
15 of this chapter.
16 g. The provisions of subdivision b of section 11-808 of this chapter
17 shall apply to this section with such modifications or adaptations as
18 are necessary to carry out the purposes of this section and to ensure
19 collection of the appropriate annual tax specified in subdivision a of
20 section 11-802 of this chapter, and with due regard to the respective
21 responsibilities of the commissioner of finance and the commissioner of
22 motor vehicles under this section and to the definitions of "tax year"
23 contained in subdivision c of this section and subdivision fourteen of
24 section 11-801 of this chapter. The agreement between the commissioner
25 of finance and the commissioner of motor vehicles authorized by subdivi-
26 sion k of this section may contain such provisions concerning the divi-
27 sion of responsibility for collection of the taxes imposed by this chap-
28 ter and the granting of refunds or credits as are consistent with this
29 section and subdivision b of section 11-808 of this chapter, and the
30 commissioner of finance and the commissioner of motor vehicles may also
31 adopt such rules as they deem necessary for such purposes.
32 h. Notwithstanding any provision of section 11-807 of this chapter to
33 the contrary, at the time a tax is required to be paid to the commis-
34 sioner of motor vehicles pursuant to this section, the person required
35 to pay such tax shall file a return with the commissioner of motor vehi-
36 cles in such form and containing such information as he or she may
37 prescribe. The taxpayer's application for registration or the renewal
38 thereof shall constitute the return required under this subdivision
39 unless the commissioner of motor vehicles shall otherwise provide by
40 rule. A return filed pursuant to this subdivision with respect to a
41 motor vehicle for a tax year or years shall be in lieu of any return
42 otherwise required to be filed with respect thereto pursuant to section
43 11-807 of this chapter.
44 i. In any case in which the tax imposed by this chapter is required to
45 be paid to the commissioner of motor vehicles but is not so paid, the
46 commissioner of finance shall collect such tax and all of the provisions
47 of this chapter relating to collection of taxes by the commissioner of
48 finance shall apply with respect thereto.
49 j. Notwithstanding any provision of section four hundred of the vehi-
50 cle and traffic law to the contrary, in those cases in which the commis-
51 sioner of finance is responsible for collecting the tax imposed by this
52 chapter, the commissioner of motor vehicles shall not issue a certif-
53 icate of registration, plates or removable date tag for any motor vehi-
54 cle subject to such tax with respect to which the commissioner of
55 finance has notified the commissioner of motor vehicles that such tax
56 has not been paid, unless the registrant submits proof, in a form
S. 8578 834
1 approved by the commissioner of motor vehicles, that such tax has been
2 paid, or is not due, with respect to such motor vehicle.
3 k. The commissioner of finance is hereby authorized and empowered to
4 enter into an agreement with the commissioner of motor vehicles to
5 govern the collection of the taxes imposed by this chapter which are
6 required to be paid to the commissioner of motor vehicles pursuant to
7 this section. Such agreement shall provide for the exclusive method of
8 collection, custody and remittal to the commissioner of finance of the
9 proceeds of any such tax; for the payment by the city of the reasonable
10 expenses incurred by the department of motor vehicles in connection with
11 the collection of any such tax; for the commissioner of finance, or a
12 duly designated representative, upon his or her request, not more
13 frequently than once in each calendar year at a time agreed upon by the
14 state comptroller, to audit the accuracy of the payments, distributions
15 and remittances to the city; and for such other matters as may be neces-
16 sary and proper to effectuate the purposes of such agreement. Such
17 agreement shall have the force and effect of a rule or regulation of the
18 commissioner of motor vehicles and shall be filed and published in
19 accordance with any statutory requirements relating thereto.
20 l. The commissioner of motor vehicles shall promptly notify the corpo-
21 ration counsel of the city of any litigation instituted against such
22 commissioner which challenges the constitutionality or validity of any
23 provision of this chapter, or of the enabling act pursuant to which it
24 was adopted, or which attempts to limit or question the application of
25 either such law, and such notification shall include copies of the
26 papers served upon such commissioner.
27 m. The commissioner of motor vehicles shall begin to collect taxes in
28 accordance with the provisions of this section at such time as is speci-
29 fied in the agreement between the commissioner of motor vehicles and the
30 commissioner of finance provided for in subdivision k of this section.
31 n. In addition to any other powers granted to the commissioner of
32 motor vehicles in this chapter or any other law, he or she is hereby
33 authorized and empowered: 1. to adopt and amend rules appropriate to
34 the carrying out of his or her responsibilities under this chapter; 2.
35 to request information concerning motor vehicles and persons subject to
36 the provisions of this chapter from the department of motor vehicles of
37 any other state, the treasury department of the United States or the
38 appropriate officials of any city or county of the state of New York;
39 and to afford such information to such department of motor vehicles,
40 treasury department or officials of such city or county, any provision
41 of this chapter to the contrary notwithstanding; 3. to delegate his or
42 her functions under this section to a deputy commissioner in the depart-
43 ment of motor vehicles or any employee of such department or to any
44 county clerk or other officer who acts as the agent of such commissioner
45 in the registration of motor vehicles; 4. to require all persons owning
46 motor vehicles with respect to which the tax imposed by this chapter is
47 payable to the commissioner of motor vehicles to keep such records as he
48 or she may prescribe and to furnish such information upon his or her
49 request; and 5. to extend, for cause shown, the time for filing any
50 return required to be filed with the commissioner of motor vehicles for
51 a period not exceeding sixty days.
52 o. To the extent that any provision of this section is in conflict
53 with any other provision of this chapter, the provisions of this section
54 shall be controlling, but in all other respects such other provisions of
55 this chapter shall remain fully applicable with respect to the imposi-
S. 8578 835
1 tion, administration and collection of the taxes imposed by this chap-
2 ter.
3 § 11-809.2 Collection of tax by the taxi and limousine commission on
4 behalf of the commissioner of finance. a. Notwithstanding any provision
5 of this chapter to the contrary, the tax imposed by this chapter on any
6 designated licensed vehicle, as defined in this subdivision, shall be
7 collected by the taxi and limousine commission on behalf of the commis-
8 sioner of finance. Except as otherwise provided by subdivision m of this
9 section, the owner of each such designated licensed vehicle shall pay
10 the tax due thereon to the taxi and limousine commission on or before
11 the date upon which such owner licenses or renews the license of such
12 designated licensed vehicle or is required to license or renew the
13 license thereof pursuant to chapter five of title nineteen of the code
14 of the preceding municipality. For purposes of this section, the term
15 "designated licensed vehicle" shall mean a motor vehicle for the trans-
16 portation of passengers, other than a medallion taxicab, the tax on
17 which is not collected by the commissioner of motor vehicles pursuant to
18 section 11-809.1 of this chapter and which is licensed or required to be
19 licensed by the taxi and limousine commission pursuant to any provision
20 of chapter five of title nineteen of the code of the preceding munici-
21 pality.
22 b. Notwithstanding any provision of chapter five of title nineteen of
23 the code of the preceding municipality to the contrary, payment of the
24 tax with respect to a designated licensed vehicle shall be a condition
25 precedent to the licensing or license renewal of such designated
26 licensed vehicle with the taxi and limousine commission, and no such
27 license or renewal thereof shall be issued unless such tax has been
28 paid. Except as provided in subdivisions f and m of this section, if the
29 license period applicable to any such designated licensed vehicle is a
30 period of more than one year, the tax required to be paid pursuant to
31 this section shall be the annual tax specified in section 11-802 of this
32 chapter multiplied by the number of years in the license period. The
33 taxi and limousine commission, upon payment of the tax pursuant to this
34 section or upon the application of any person exempt therefrom, shall
35 furnish to each taxpayer paying the tax a receipt for such tax and to
36 each other taxpayer or exempt person a statement, document or other form
37 prescribed by the taxi and limousine commission, showing that such tax
38 has been paid or is not due with respect to such designated licensed
39 vehicle.
40 c. For purposes of this section, the term "tax period" shall mean the
41 license period applicable to the designated licensed vehicle under chap-
42 ter five of title nineteen of the code of the preceding municipality
43 and, in the case of a license period of other than one year, shall mean
44 the number of twelve-month periods and any period of less than twelve
45 months within such license period. The term "tax period" shall also
46 include any periods described in subparagraph (A) of paragraph one of
47 subdivision m of this section.
48 d. Except as provided in subdivision m of this section, where the tax
49 imposed by this chapter has been paid to the commissioner of finance
50 with respect to a motor vehicle for a tax year described in subdivision
51 fourteen of section 11-801 of this chapter, and subsequent thereto but
52 within such tax year the same taxpayer pays a tax to the taxi and limou-
53 sine commission with respect to such motor vehicle pursuant to this
54 section, such taxpayer shall be entitled to a refund or credit from the
55 commissioner of finance for the portion of the tax paid to the commis-
56 sioner of finance that is attributable to the period beginning on the
S. 8578 836
1 first day of the first tax period for which the tax is paid to the taxi
2 and limousine commission and ending on the following May thirty-first,
3 provided, however, that no such refund or credit shall be allowed if the
4 amount thereof is less than five dollars. Any refund or credit to which
5 a taxpayer is entitled pursuant to this subdivision shall be promptly
6 refunded or credited, without interest, by the commissioner of finance,
7 and the commissioner of finance may promulgate such rules as he or she
8 deems necessary to carry out the provisions of this subdivision.
9 e. If the license for the designated licensed vehicle is transferred,
10 surrendered or terminated for reasons other than revocation, and the
11 applicable license period under chapter five of title nineteen of the
12 code of the preceding municipality is for more than one year, and the
13 tax paid to the taxi and limousine commission was for a tax period of
14 more than twelve months, except as otherwise provided in the agreement
15 between the taxi and limousine commission and the commissioner of
16 finance authorized pursuant to subdivision k of this section, the
17 commissioner of finance shall refund the tax paid for any twelve-month
18 period commencing subsequent to the transfer, surrender or other termi-
19 nation of the license described in this subdivision.
20 f. Except as provided in subdivision m of this section, for designated
21 licensed vehicles whose license period is a two year period that begins
22 and ends on the same dates, the tax payable to the taxi and limousine
23 commission pursuant to this section with respect to a designated
24 licensed vehicle that is licensed or required to be licensed after the
25 commencement of such license period shall be determined as follows:
26 1. If such designated licensed vehicle is licensed or required to be
27 licensed before the first day of the seventh month of such period, the
28 tax shall be the amount determined pursuant to subdivision b of this
29 section.
30 2. If such designated licensed vehicle is licensed or required to be
31 licensed on or after the first day of the seventh month of such period
32 but before the first day of the thirteenth month of such period, the tax
33 shall be three-fourths of the amount determined pursuant to subdivision
34 b of this section.
35 3. If such designated licensed vehicle is licensed or required to be
36 licensed on or after the first day of the thirteenth month but before
37 the first day of the nineteenth month of such period, the tax shall be
38 one-half of the amount determined pursuant to subdivision b of this
39 section.
40 4. If such designated licensed vehicle is licensed or required to be
41 licensed on or after the first day of the nineteenth month of such peri-
42 od, the tax shall be one-fourth of the amount determined pursuant to
43 subdivision b of this section.
44 5. When the license period described in this section is for a period
45 of less than two years, the commissioner of finance shall have the
46 authority to provide by rule the amount to be payable under this subdi-
47 vision.
48 g. The provisions of subdivision b of section 11-808 of this chapter
49 shall apply to this section with such modifications or adaptations as
50 are necessary to carry out the purposes of this section and to ensure
51 collection of the appropriate annual tax specified in subdivision a of
52 section 11-802 of this chapter, and with due regard to the respective
53 responsibilities of the commissioner of finance and the taxi and limou-
54 sine commission under this section and to the definition of "tax year"
55 contained in subdivision fourteen of section 11-801 of this chapter and
56 to the definition of "tax period" contained in subdivision c of this
S. 8578 837
1 section. The agreement between the commissioner of finance and the taxi
2 and limousine commission authorized by subdivision k of this section may
3 contain such provisions concerning the division of responsibility for
4 collection of the taxes imposed by this chapter and the granting of
5 refunds or credits as are consistent with this section and subdivision b
6 of section 11-808 of this chapter, and the commissioner of finance and
7 the taxi and limousine commission may also adopt such rules as they deem
8 necessary for such purposes.
9 h. Notwithstanding any provision of section 11-807 of this chapter to
10 the contrary, at the time a tax is required to be paid to the taxi and
11 limousine commission pursuant to this section, the person required to
12 pay such tax shall file a return with the taxi and limousine commission
13 in such form and containing such information as the taxi and limousine
14 commission may prescribe. The taxpayer's application for a license or
15 the renewal thereof shall constitute the return required under this
16 subdivision unless the taxi and limousine commission shall otherwise
17 provide by rule. A return filed pursuant to this subdivision with
18 respect to a designated licensed vehicle for a tax period or periods
19 shall be in lieu of any return otherwise required to be filed with
20 respect thereto pursuant to section 11-807 of this chapter. Unless the
21 taxi and limousine commission otherwise requires, the filing of a return
22 shall not be required for the tax periods described in subparagraph (A)
23 of paragraph one of subdivision m of this section.
24 i. In any case in which the tax imposed by this chapter is required to
25 be paid to the taxi and limousine commission but is not so paid, the
26 commissioner of finance shall collect such tax and all of the provisions
27 of this chapter relating to collection of taxes by the commissioner of
28 finance shall apply with respect thereto.
29 j. Notwithstanding any provision of chapter five of title nineteen of
30 the code of the preceding municipality to the contrary, in those cases
31 in which the commissioner of finance is responsible for collecting the
32 tax imposed by this chapter, the taxi and limousine commission shall not
33 issue or renew a license for any designated licensed vehicle subject to
34 such tax with respect to which the commissioner of finance has notified
35 the taxi and limousine commission that such tax has not been paid,
36 unless the applicant for such license or renewal submits proof, in a
37 form approved by the taxi and limousine commission, that such tax has
38 been paid, or is not due, with respect to such designated licensed vehi-
39 cle.
40 k. The commissioner of finance is hereby authorized and empowered to
41 enter into an agreement with the taxi and limousine commission to govern
42 the collection of the taxes imposed by this chapter which are required
43 to be paid to the taxi and limousine commission pursuant to this
44 section. Such agreement may provide for the exclusive method of
45 collection, custody and remittal to the commissioner of finance of the
46 proceeds of any such tax; for the payment by the commissioner of finance
47 of reasonable expenses incurred by the taxi and limousine commission in
48 connection with the collection of any such tax; for the commissioner of
49 finance, or a duly designated representative, upon his or her request,
50 not more frequently than once in each calendar year at a time agreed
51 upon by the city comptroller, to audit the accuracy of the payments,
52 distributions and remittances to the commissioner of finance; and for
53 such other matters as may be necessary and proper to effectuate the
54 purposes of such agreement.
55 l. The taxi and limousine commission shall promptly notify the corpo-
56 ration counsel of the city and the commissioner of finance of any liti-
S. 8578 838
1 gation instituted against such commission which challenges the constitu-
2 tionality or validity of any provision of this chapter, or which
3 attempts to limit or question the application of this chapter, and such
4 notification shall include copies of the papers served upon such commis-
5 sion.
6 m. Except as otherwise provided in the agreement between the taxi and
7 limousine commission and the commissioner of finance authorized by
8 subdivision k of this section, or with respect to the periods described
9 in paragraph two of this subdivision, the taxi and limousine commission
10 shall begin to collect taxes in accordance with the provisions of this
11 section on the first day of April in the year two thousand twelve as
12 follows:
13 1. The tax due on a designated licensed vehicle, the license for which
14 expires on or after the first day of June in the year two thousand
15 twelve and before the first day of June in the year two thousand four-
16 teen, shall be determined as follows:
17 (A) For a designated licensed vehicle whose license expires on or
18 after the first day of June in the year two thousand twelve and before
19 the first day of June in the year two thousand fourteen, the amount of
20 tax for the tax period between the first day of June in the year two
21 thousand twelve and the date the license shall expire for such desig-
22 nated licensed vehicle pursuant to chapter five of title nineteen of the
23 code of the preceding municipality shall be the sum of (i) the annual
24 tax specified in subparagraph (C) of paragraph two of subdivision a of
25 section 11-802 of this chapter for any twelve-month period within such
26 tax period, and (ii) the amount determined under subparagraph (B) of
27 this paragraph for any period of less than twelve months within such tax
28 period. The amount of tax so determined shall be payable on or before
29 the first day of June in the year two thousand twelve. In the event the
30 amount of tax due and payable under this subparagraph shall not have
31 been paid within thirty days of the first day of June in the year two
32 thousand twelve, the taxi and limousine commission shall suspend the
33 license for such designated licensed vehicle, and the license for any
34 such designated licensed vehicle which has expired shall not be renewed
35 until such time as such tax is paid.
36 (B) For purposes of subparagraph (A) of this paragraph, the amount of
37 tax for a period of less than twelve months shall be determined as
38 follows: (i) if such period is nine months or more, the amount for such
39 period shall be the full amount of annual tax provided in subparagraph
40 (C) of paragraph two of subdivision a of section 11-802 of this chapter;
41 (ii) if such period is more than six months but less than nine months,
42 the amount for such period shall be three-fourths of the amount of annu-
43 al tax provided in subparagraph (C) of paragraph two of subdivision a of
44 section 11-802 of this chapter; (iii) if such period is more than three
45 months but less than six months, the amount for such period shall be
46 one-half of the amount of annual tax provided in subparagraph (C) of
47 paragraph two of subdivision a of section 11-802 of this chapter; and
48 (iv) if such period is less than three months, the amount for such peri-
49 od shall be one-fourth of the amount of annual tax provided in subpara-
50 graph (C) of paragraph two of subdivision a of section 11-802 of this
51 chapter.
52 2. Upon the date for payment set forth in subparagraph (A) of para-
53 graph one of this subdivision, the taxi and limousine commission shall
54 require the taxpayer to provide a proof of payment of the tax to the
55 commissioner of finance for the period beginning on the first day of
56 June in the year two thousand eleven and ending on the thirty-first day
S. 8578 839
1 of May in the year two thousand twelve or any part of such period for
2 which the taxpayer was subject to the tax. In the event the taxpayer has
3 not paid such tax to the commissioner of finance: (i) the license for
4 any designated licensed vehicle described in subparagraph (A) of this
5 paragraph shall not be renewed until such time as such tax, together
6 with any applicable interest or penalties, has been paid to the commis-
7 sioner of finance and (ii) if such tax remains unpaid as of the end of
8 the thirty-day period set forth in subparagraph (A) of paragraph one of
9 this subdivision, the license for any designated licensed vehicle
10 described in subparagraph (A) of paragraph one of this subdivision shall
11 be suspended until such time as such tax, together with any applicable
12 interest or penalties, is paid to the commissioner of finance.
13 n. In addition to any other powers granted to the taxi and limousine
14 commission in this chapter or any other law, the taxi and limousine
15 commission is hereby authorized and empowered:
16 1. to adopt and amend rules appropriate to the carrying out of its
17 responsibilities under this chapter;
18 2. to request information concerning motor vehicles and persons
19 subject to the provisions of this chapter from the commissioner of motor
20 vehicles, the department of motor vehicles of any other state, the trea-
21 sury department of the United States or the appropriate officials of any
22 city or county of the state of New York; and to afford such information
23 to such department of motor vehicles, treasury department or officials
24 of such city or county, any provision of this chapter to the contrary
25 notwithstanding;
26 3. to delegate its functions under this section to any commissioner or
27 employee of such commission;
28 4. to require any person who is an owner, as defined in chapter five
29 of title nineteen of the code of the preceding municipality, of a desig-
30 nated licensed vehicle to keep such records as it prescribes and to
31 furnish such information upon its request; and
32 5. to extend, for cause shown, the time for filing any return required
33 to be filed with the taxi and limousine commission for a period not
34 exceeding sixty days.
35 o. To the extent that any provision of this section is in conflict
36 with any other provision of this chapter, the provisions of this section
37 shall be controlling, but in all other respects such other provisions of
38 this chapter shall remain fully applicable with respect to the imposi-
39 tion, administration and collection of the taxes imposed by this chap-
40 ter.
41 § 11-810 Determination of tax. If a return required by this chapter is
42 not filed, or if a return when filed is incorrect or insufficient, the
43 commissioner of finance shall determine the amount of tax due from such
44 information as may be obtainable and, if necessary, may estimate the tax
45 on the basis of external indices such as motor vehicle registration with
46 the department of motor vehicles and/or any other factors. Notice of
47 such determination shall be given to the person liable for the payment
48 of the tax. Such determination shall finally and irrevocably fix the tax
49 unless the person against whom it is assessed, within ninety days after
50 the giving of notice of such determination or, if the commissioner of
51 finance has established a conciliation procedure pursuant to section
52 11-124 of this title and the taxpayer has requested a conciliation
53 conference in accordance therewith, within ninety days from the mailing
54 of a conciliation decision or the date of the commissioner's confirma-
55 tion of the discontinuance of the conciliation proceeding, both (1)
56 serves a petition upon the commissioner of finance and (2) files a peti-
S. 8578 840
1 tion with the tax appeals tribunal for a hearing, or unless the commis-
2 sioner of finance of his or her own motion shall redetermine the same.
3 Such hearing and any appeal to the tax appeals tribunal sitting en banc
4 from the decision rendered in such hearing shall be conducted in the
5 manner and subject to the requirements prescribed by the tax appeals
6 tribunal pursuant to sections one hundred sixty-eight through one
7 hundred seventy-two of the charter of the preceding municipality as it
8 existed January first, nineteen hundred ninety-four. After such hearing
9 the tax appeals tribunal shall give notice of its decision to the person
10 against whom the tax is assessed and to the commissioner of finance. A
11 decision of the tax appeals tribunal sitting en banc shall be reviewable
12 for error, illegality or unconstitutionality or any other reason whatso-
13 ever by a proceeding under article seventy-eight of the civil practice
14 law and rules if application therefor is made to the supreme court by
15 the person against whom the tax was assessed within four months after
16 the giving of the notice of such tax appeals tribunal decision. A
17 proceeding under article seventy-eight of the civil practice law and
18 rules shall not be instituted by a taxpayer unless: (a) the amount of
19 any tax sought to be reviewed, with penalties and interest thereon, if
20 any, shall be first deposited with the commissioner of finance and there
21 shall be filed with the commissioner of finance an undertaking, issued
22 by a surety company authorized to transact business in this state and
23 approved by the superintendent of insurance of this state as to solvency
24 and responsibility, in such amount and with such sureties as a justice
25 of the supreme court shall approve, to the effect that if such proceed-
26 ing be dismissed or the tax confirmed, the taxpayer will pay all costs
27 and charges which may accrue in the prosecution of the proceeding, or
28 (b) at the option of the taxpayer such undertaking filed with the
29 commissioner of finance may be in a sum sufficient to cover the taxes,
30 penalties and interest thereon stated in such decision plus the costs
31 and charges which may accrue against it in the prosecution of the
32 proceeding, in which event the taxpayer shall not be required to deposit
33 such taxes, penalties and interest as a condition precedent to the
34 application.
35 § 11-811 Refunds. a. In the manner provided in this section the
36 commissioner of finance shall refund or credit, without interest, any
37 tax, penalty or interest erroneously, illegally or unconstitutionally
38 collected or paid, if written application to the commissioner of finance
39 for such refund shall be made within one year from the payment thereof.
40 Whenever a refund or credit is made or denied, the commissioner of
41 finance shall state his or her reason therefor and give notice thereof
42 to the taxpayer in writing. The commissioner of finance may, in lieu of
43 any refund required to be made, allow credit therefor on payments due
44 from the applicant.
45 b. Any determination of the commissioner of finance denying a refund
46 or credit pursuant to subdivision a of this section shall be final and
47 irrevocable unless the applicant for such refund or credit, within nine-
48 ty days from the mailing or notice of such determination, or, if the
49 commissioner of finance has established a conciliation procedure pursu-
50 ant to section 11-124 of this title and the applicant has requested a
51 conciliation conference in accordance therewith, within ninety days from
52 the mailing of a conciliation decision or the date of the commissioner's
53 confirmation of the discontinuance of the conciliation proceeding, both
54 (1) serves a petition upon the commissioner of finance and (2) files a
55 petition with the tax appeals tribunal for a hearing. Such petition for
56 a refund or credit, made as herein provided, shall be deemed an applica-
S. 8578 841
1 tion for a revision of any tax, penalty or interest complained of. Such
2 hearing and any appeal to the tax appeals tribunal sitting en banc from
3 the decision rendered in such hearing shall be conducted in the manner
4 and subject to the requirements prescribed by the tax appeals tribunal
5 pursuant to sections one hundred sixty-eight through one hundred seven-
6 ty-two of the charter of the preceding municipality as it existed Janu-
7 ary first, nineteen hundred ninety-four. After such hearing, the tax
8 appeals tribunal shall give notice of its decision to the applicant and
9 to the commissioner of finance. The applicant shall be entitled to
10 institute a proceeding pursuant to article seventy-eight of the civil
11 practice law and rules to review a decision of the tax appeals tribunal
12 sitting en banc if application to the supreme court be made therefor
13 within four months after the giving of notice of such decision, and
14 provided, in the case of an application by a taxpayer, that a final
15 determination of tax due was not previously made. Such a proceeding
16 shall not be instituted by a taxpayer, unless an undertaking shall first
17 be filed with the commissioner of finance in such amount and with such
18 sureties as a justice of the supreme court shall approve, to the effect
19 that if such proceeding be dismissed or the tax confirmed, the taxpayer
20 will pay all costs and charges which may accrue in the prosecution of
21 the proceeding.
22 c. A person shall not be entitled to a revision, refund or credit
23 under this section of a tax, interest or penalty which had been deter-
24 mined to be due pursuant to the provisions of section 11-810 of this
25 chapter where such person has had a hearing or an opportunity for a
26 hearing, as provided in said section, or has failed to avail himself or
27 herself of the remedies therein provided. No refund or credit shall be
28 made of a tax, interest or penalty paid after a determination by the
29 commissioner of finance made pursuant to section 11-810 of this chapter
30 unless it be found that such determination was erroneous, illegal or
31 unconstitutional or otherwise improper, by the tax appeals tribunal
32 after a hearing or on the commissioner's own motion, or, if such tax
33 appeals tribunal affirms in whole or in part the determination of the
34 commissioner of finance, in a proceeding under article seventy-eight of
35 the civil practice law and rules, pursuant to the provisions of said
36 section, in which event refund or credit without interest shall be made
37 of the tax, interest or penalty found to have been overpaid.
38 § 11-812 Remedies exclusive. The remedies provided by this chapter
39 shall be the exclusive remedies available to any person for the review
40 of tax liability imposed by this chapter; and no determination or
41 proposed determination of tax or determination on any application for
42 refund by the commissioner of finance, nor any decision by the tax
43 appeals tribunal or any of its administrative law judges, shall be
44 enjoined or reviewed by an action for declaratory judgment, an action
45 for money had and received or by any action or proceeding other than, in
46 the case of a decision by the tax appeals tribunal sitting en banc, a
47 proceeding under article seventy-eight of the civil practice law and
48 rules; provided, however, that a taxpayer may proceed by declaratory
49 judgment if the taxpayer institutes suit within thirty days after a
50 deficiency assessment is made and pays the amount of the deficiency
51 assessment to the commissioner of finance prior to the institution of
52 such suit and posts a bond for costs as provided in section 11-810 of
53 this chapter.
54 § 11-813 Reserves. In cases where the taxpayer has applied for a
55 refund and has instituted a proceeding under article seventy-eight of
56 the civil practice law and rules to review a determination adverse to
S. 8578 842
1 the taxpayer on his or her application for refund, the comptroller shall
2 set up appropriate reserves to meet any decision adverse to the city.
3 § 11-814 Proceedings to recover tax. a. Whenever any person shall
4 fail to pay any tax or penalty or interest imposed by this chapter as
5 herein provided, the corporation counsel shall, upon the request of the
6 commissioner of finance, bring or cause to be brought an action to
7 enforce payment of the same against the person liable for the same on
8 behalf of the city of Staten Island in any court of the state of New
9 York or of any other state or of the United States. If, however, the
10 commissioner of finance in his or her discretion believes that a taxpay-
11 er subject to the provisions of this chapter is about to cease business,
12 leave the state or remove or dissipate the assets out of which tax or
13 penalties might be satisfied and that any such tax or penalty will not
14 be paid when due, the commissioner may declare such tax or penalty to be
15 immediately due and payable and may issue a warrant immediately.
16 b. As an additional or alternate remedy, the commissioner of finance
17 may issue a warrant, directed to the city sheriff commanding the sheriff
18 to levy upon and sell the real and personal property of such person
19 which may be found within the city, for the payment of the amount there-
20 of, with any penalties and interest, and the cost of executing the
21 warrant, and to return such warrant to the commissioner of finance and
22 to pay to the commissioner the money collected by virtue thereof within
23 sixty days after the receipt of such warrant. The city sheriff shall,
24 within five days after the receipt of the warrant, file with the county
25 clerk a copy thereof, and thereupon such clerk shall enter in the judge-
26 ment docket the name of the person mentioned in the warrant and the
27 amount of the tax, penalties and interest for which the warrant is
28 issued and the date when such copy is filed. Thereupon the amount of
29 such warrant so docketed shall become a lien upon the title to and
30 interest in real and personal property of the person against whom the
31 warrant is issued. The city sheriff shall then proceed upon the warrant
32 in the same manner and with like effect as that provided by law in
33 respect to executions issued against property upon judgments of a court
34 of record, and for services in executing the warrant the sheriff shall
35 be entitled to the same fees which he or she may collect in the same
36 manner. In the discretion of the commissioner of finance a warrant of
37 like terms, force and effect may be issued and directed to any officer
38 or employee of the department of finance, and in the execution thereof
39 such officer or employee shall have all the powers conferred by law upon
40 sheriffs, but such officer or employee shall be entitled to no fee or
41 compensation in excess of the actual expenses paid in the performance of
42 such duty. If a warrant is returned not satisfied in full, the commis-
43 sioner of finance may from time to time issue new warrants and shall
44 also have the same remedies to enforce the amount due thereunder as if
45 the city had recovered judgment therefor and execution thereon had been
46 returned unsatisfied.
47 c. Whenever there is made a sale, transfer or assignment in bulk of
48 any part or the whole of a stock of merchandise or of fixtures, or
49 merchandise and of fixtures pertaining to the conducting of the business
50 of the seller, transferor or assignor, otherwise than in the ordinary
51 course of trade and in the regular prosecution of said business, the
52 purchaser, transferee or assignee shall at least ten days before taking
53 possession of such merchandise, fixtures, or merchandise and fixtures,
54 or paying therefor, notify the commissioner of finance by registered
55 mail of the proposed sale and of the price, terms and conditions thereof
56 whether or not the seller, transferor or assignor, has represented to,
S. 8578 843
1 or informed the purchaser, transferee or assignee that it owes any tax
2 pursuant to this chapter and whether or not the purchaser, transferee or
3 assignee has knowledge that such taxes are owing, and whether any such
4 taxes are in fact owing.
5 Whenever the purchaser, transferee or assignee shall fail to give
6 notice to the commissioner of finance as required by the opening para-
7 graph of this subdivision, or whenever the commissioner of finance shall
8 inform the purchaser, transferee or assignee that a possible claim for
9 such tax or taxes exists, any sums of money, property or choses in
10 action, or other consideration, which the purchaser, transferee or
11 assignee is required to transfer over to the seller, transferor or
12 assignor shall be subject to a first priority right and lien for any
13 such taxes theretofore or thereafter determined to be due from the sell-
14 er, transferor or assignor to the city, and the purchaser, transferee or
15 assignee is forbidden to transfer to the seller, transferor or assignor
16 any such sums of money, property or choses in action to the extent of
17 the amount of the city's claim. For failure to comply with the
18 provisions of this subdivision, the purchaser, transferee or assignee,
19 in addition to being subject to the liabilities and remedies imposed
20 under the provisions of former section forty-four of the personal prop-
21 erty law, shall be personally liable for the payment to the city of any
22 such taxes theretofore or thereafter determined to be due to the city
23 from the seller, transferor or assignor, and such liability may be
24 assessed and enforced in the same manner as the liability for tax under
25 this chapter.
26 d. The commissioner of finance, if he or she finds that the interests
27 of the city will not thereby be jeopardized, and upon such conditions as
28 the commissioner of finance may require, may release any property from
29 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
30 tions to tax, penalties and interest filed pursuant to subdivision b of
31 this section, and such release or vacating of the warrant may be
32 recorded in the office of any recording officer in which such warrant
33 has been filed. The clerk shall thereupon cancel and discharge as of the
34 original date of docketing the vacated warrant.
35 § 11-815 General powers of the commissioner of finance. In addition
36 to all other powers granted to the commissioner of finance in this chap-
37 ter, the commissioner is hereby authorized and empowered:
38 1. To make, adopt and amend rules and regulations appropriate to the
39 carrying out of this chapter and the purposes thereof;
40 2. To extend, for cause shown, the time for filing any kind of return
41 for a period not exceeding sixty days; and to compromise disputed claims
42 in connection with the taxes hereby imposed;
43 3. To request information concerning motor vehicles and persons
44 subject to the provisions of this chapter from the department of motor
45 vehicles and from the department of taxation and finance of the state of
46 New York or any successor to their duties, or the treasury department of
47 the United States relative to any person; and to afford information to
48 such department of motor vehicles, department of taxation and finance or
49 any successor to their duties, or to such treasury department relative
50 to any person, any other provision of this chapter to the contrary
51 notwithstanding;
52 4. To delegate the commissioner's functions hereunder to a deputy
53 commissioner of finance or any employee or employees of the department
54 of finance;
55 5. To assess, reassess, determine, revise and readjust the taxes
56 imposed under this chapter;
S. 8578 844
1 6. To provide methods for identifying motor vehicles not subject to or
2 exempt from the tax imposed under this chapter;
3 7. To provide that a certificate of registration need not be filed
4 with respect to any or all types of motor vehicles, or to provide that
5 such certificate of registration with respect to any or all types of
6 motor vehicles shall be contained on or combined with any return or
7 supplemental return required to be filed under this chapter.
8 § 11-816 Administration of oaths and compelling testimony. a. The
9 commissioner of finance, the commissioner's employees duly designated
10 and authorized by the commissioner, the tax appeals tribunal and any of
11 its duly designated and authorized employees shall have power to admin-
12 ister oaths and take affidavits in relation to any matter or proceeding
13 in the exercise of their powers and duties under this chapter. The
14 commissioner of finance and the tax appeals tribunal shall have power to
15 subpoena and require the attendance of witnesses and the production of
16 books, papers and documents to secure information pertinent to the
17 performance of the duties of the commissioner or of the tax appeals
18 tribunal hereunder and of the enforcement of this chapter and to examine
19 them in relation thereto, and to issue commissions for the examination
20 of witnesses who are out of the state or unable to attend before the
21 commissioner or the tax appeals tribunal or excused from attendance.
22 b. A justice of the supreme court either in court or at chambers shall
23 have power summarily to enforce by proper proceedings the attendance and
24 testimony of witnesses and the production and examination of books,
25 papers and documents called for by the subpoena of the commissioner of
26 finance or the tax appeals tribunal under this chapter.
27 c. Cross-reference; criminal penalties. For failure to obey subpoenas
28 or for testifying falsely, see section 11-4007 of the code of the
29 preceding municipality; for supplying false or fraudulent information,
30 see section 11-4009 of the code of the preceding municipality.
31 d. The officers who serve the summons or subpoena of the commissioner
32 of finance or the tax appeals tribunal hereunder and witnesses attending
33 in response thereto shall be entitled to the same fees as are allowed to
34 officers and witnesses in civil cases in courts of record, except as
35 herein otherwise provided. Such officers shall be the city sheriff, and
36 the sheriff's duly appointed deputies or any officers or employees of
37 the department of finance or the tax appeals tribunal, designated to
38 serve such process.
39 § 11-817 Interest and penalties. (a) Interest on underpayments. If
40 any amount of tax is not paid on or before the last date prescribed for
41 payment, without regard to any extension of time granted for payment,
42 interest on such amount at the rate set by the commissioner of finance
43 pursuant to subdivision (g) of this section, or, if no rate is set, at
44 the rate of seven and one-half percent per annum, shall be paid for the
45 period from such last date to the date of payment. In computing the
46 amount of interest to be paid, such interest shall be compounded daily.
47 Interest under this subdivision shall not be paid if the amount thereof
48 is less than one dollar.
49 (b) (1) Failure to file return. (A) In case of failure to file a
50 return under this chapter on or before the prescribed date, determined
51 with regard to any extension of time for filing, unless it is shown that
52 such failure is due to reasonable cause and not due to willful neglect,
53 there shall be added to the amount required to be shown as tax on such
54 return five percent of the amount of such tax if the failure is for not
55 more than one month, with an additional five percent for each additional
S. 8578 845
1 month or fraction thereof during which such failure continues, not
2 exceeding twenty-five percent in the aggregate.
3 (B) In the case of a failure to file a return of tax within sixty days
4 of the date prescribed for filing of such return, determined with regard
5 to any extension of time for filing, unless it is shown that such fail-
6 ure is due to reasonable cause and not due to willful neglect, the addi-
7 tion to tax under subparagraph (A) of this paragraph shall not be less
8 than the lesser of one hundred dollars or one hundred percent of the
9 amount required to be shown as tax on such return.
10 (C) For purposes of this paragraph, the amount of tax required to be
11 shown on the return shall be reduced by the amount of any part of the
12 tax which is paid on or before the date prescribed for payment of the
13 tax and by the amount of any credit against the tax which may be claimed
14 upon the return.
15 (2) Failure to pay tax shown on return. In case of failure to pay the
16 amount shown as tax on a return required to be filed under this chapter
17 on or before the prescribed date, determined with regard to any exten-
18 sion of time for payment, unless it is shown that such failure is due to
19 reasonable cause and not due to willful neglect, there shall be added to
20 the amount shown as tax on such return one-half of one percent of the
21 amount of such tax if the failure is not for more than one month, with
22 an additional one-half of one percent for each additional month or frac-
23 tion thereof during which such failure continues, not exceeding twenty-
24 five percent in the aggregate. For the purpose of computing the addition
25 for any month the amount of tax shown on the return shall be reduced by
26 the amount of any part of the tax which is paid on or before the begin-
27 ning of such month and by the amount of any credit against the tax which
28 may be claimed upon the return. If the amount of tax required to be
29 shown on a return is less than the amount shown as tax on such return,
30 this paragraph shall be applied by substituting such lower amount.
31 (3) Failure to pay tax required to be shown on return. In case of
32 failure to pay any amount in respect of any tax required to be shown on
33 a return required to be filed under this chapter which is not so shown,
34 including a determination made pursuant to section 11-810 of this chap-
35 ter, within ten days of the date of a notice and demand therefor, unless
36 it is shown that such failure is due to reasonable cause and not due to
37 willful neglect, there shall be added to the amount of tax stated in
38 such notice and demand one-half of one percent of such tax if the fail-
39 ure is not for more than one month, with an additional one-half of one
40 percent for each additional month or fraction thereof during which such
41 failure continues, not exceeding twenty-five percent in the aggregate.
42 For the purpose of computing the addition for any month, the amount of
43 tax stated in the notice and demand shall be reduced by the amount of
44 any part of the tax which is paid before the beginning of such month.
45 (4) Limitations on additions.
46 (A) With respect to any return, the amount of the addition under para-
47 graph one of this subdivision shall be reduced by the amount of the
48 addition under paragraph two of this subdivision for any month to which
49 an addition applies under both such paragraphs one and two. In any case
50 described in subparagraph (B) of paragraph one of this subdivision, the
51 amount of the addition under such paragraph one shall not be reduced
52 below the amount provided in such subparagraph.
53 (B) With respect to any return, the maximum amount of the addition
54 permitted under paragraph three of this subdivision shall be reduced by
55 the amount of the addition under paragraph one of this subdivision,
56 determined without regard to subparagraph (B) of such paragraph one,
S. 8578 846
1 which is attributable to the tax for which the notice and demand is made
2 and which is not paid within ten days of such notice and demand.
3 (c) Underpayment due to negligence. (1) If any part of an underpayment
4 of tax is due to negligence or intentional disregard of this chapter or
5 any rules or regulations hereunder, but without intent to defraud, there
6 shall be added to the tax a penalty equal to five percent of the under-
7 payment.
8 (2) There shall be added to the tax, in addition to the amount deter-
9 mined under paragraph one of this subdivision, an amount equal to fifty
10 percent of the interest payable under subdivision (a) of this section
11 with respect to the portion of the underpayment described in such para-
12 graph one which is attributable to the negligence or intentional disre-
13 gard referred to in such paragraph one, for the period beginning on the
14 last date prescribed by law for payment of such underpayment, determined
15 without regard to any extension, and ending on the date of the assess-
16 ment of the tax, or, if earlier, the date of the payment of the tax.
17 (d) Underpayment due to fraud. (1) If any part of an underpayment of
18 tax is due to fraud, there shall be added to the tax a penalty equal to
19 fifty percent of the underpayment.
20 (2) There shall be added to the tax, in addition to the penalty deter-
21 mined under paragraph one of this subdivision, an amount equal to fifty
22 percent of the interest payable under subdivision (a) of this section
23 with respect to the portion of the underpayment described in such para-
24 graph one which is attributable to fraud, for the period beginning on
25 the last day prescribed by law for payment of such underpayment, deter-
26 mined without regard to any extension, and ending on the date of the
27 assessment of the tax, or, if earlier, the date of the payment of the
28 tax.
29 (3) The penalty under this subdivision shall be in lieu of any other
30 addition to tax imposed by subdivision (b) or (c) of this section.
31 (e) Additional penalty. Any person who, with fraudulent intent, shall
32 fail to pay any tax imposed by this chapter, or to make, render, sign or
33 certify any return, or to supply any information within the time
34 required by or under this chapter, shall be liable for a penalty of not
35 more than one thousand dollars, in addition to any other amounts
36 required under this chapter to be imposed, assessed and collected by the
37 commissioner of finance. The commissioner of finance shall have the
38 power, in his or her discretion, to waive, reduce or compromise any
39 penalty under this subdivision.
40 (f) The interest and penalties imposed by this section shall be paid
41 and disposed of in the same manner as other revenues from this subchap-
42 ter. Unpaid interest and penalties may be enforced in the same manner as
43 the tax imposed by this chapter.
44 (g) (1) Authority to set interest rates. The commissioner of finance
45 shall set the rate of interest to be paid pursuant to subdivision (a) of
46 this section, but if no such rate of interest is set, such rate shall be
47 deemed to be set at seven and one-half percent per annum. Such rate
48 shall be the rate prescribed in paragraph two of this subdivision but
49 shall not be less than seven and one-half percent per annum. Any such
50 rate set by the commissioner of finance shall apply to taxes, or any
51 portion thereof, which remain or become due on or after the date on
52 which such rate becomes effective and shall apply only with respect to
53 interest computed or computable for periods or portions of periods
54 occurring in the period in which such rate is in effect.
S. 8578 847
1 (2) General rule. The rate of interest set under this subdivision
2 shall be the sum of (i) the federal short-term rate as provided under
3 paragraph three of this subdivision, plus (ii) seven percentage points.
4 (3) Federal short-term rate. For purposes of this subdivision:
5 (A) The federal short-term rate for any month shall be the federal
6 short-term rate determined by the United States secretary of the treas-
7 ury during such month in accordance with subsection (d) of section
8 twelve hundred seventy-four of the internal revenue code for use in
9 connection with section six thousand six hundred twenty-one of the
10 internal revenue code. Any such rate shall be rounded to the nearest
11 full percent, or, if a multiple of one-half of one percent, such rate
12 shall be increased to the next highest full percent.
13 (B) Period during which rate applies.
14 (i) In general. Except as provided in clause (ii) of this subpara-
15 graph, the federal short-term rate for the first month in each calendar
16 quarter shall apply during the first calendar quarter beginning after
17 such month.
18 (ii) Special rule for the month of September, nineteen hundred eight-
19 y-nine. The federal short-term rate for the month of April, nineteen
20 hundred eighty-nine shall apply with respect to setting the rate of
21 interest for the month of September, nineteen hundred eighty-nine.
22 (4) Publication of interest rate. The commissioner of finance shall
23 cause to be published in the City Record, and give other appropriate
24 general notice of, the interest rate to be set under this subdivision no
25 later than twenty days preceding the first day of the calendar quarter
26 during which such interest rate applies. The setting and publication of
27 such interest rate shall not be included within paragraph (a) of subdi-
28 vision five of section one thousand forty-one of the city charter of the
29 preceding municipality as it existed January first, nineteen hundred
30 ninety-four relating to the definition of a rule.
31 (h) Miscellaneous. (1) The certificate of the commissioner of finance
32 to the effect that a tax has not been paid, that a motor vehicle has not
33 been registered, that a return has not been filed, or that information
34 has not been supplied pursuant to the provisions of this chapter, shall
35 be presumptive evidence thereof.
36 (2) Cross-reference: For criminal penalties, see chapter forty of this
37 title.
38 § 11-818 Information and records to be secret. a. Except in accord-
39 ance with proper judicial order, or as otherwise provided by law, it
40 shall be unlawful for the commissioner of finance, the tax appeals
41 tribunal, any other agency, officer or employee of the city, the commis-
42 sioner of motor vehicles, any officer or employee of the department of
43 motor vehicles, any agent of the commissioner of motor vehicles, or any
44 other person who, pursuant to this section, is permitted to inspect any
45 registration or return filed pursuant to this chapter, or to whom a
46 copy, an abstract or portion of any registration or return filed pursu-
47 ant to this chapter is furnished, or to whom any information contained
48 in any registration or return filed pursuant to this chapter is
49 furnished, to divulge or make known in any manner any information relat-
50 ing to or contained in any registration or any kind of return filed
51 pursuant to this chapter. The officers charged with the custody of such
52 registration and returns pertaining to the tax assessed pursuant to this
53 chapter shall not be required to produce any of them or evidence of
54 anything contained in them in any action or proceeding in any court,
55 except on behalf of the city, the commissioner of finance, the state or
56 the commissioner of motor vehicles, in an action or proceeding under the
S. 8578 848
1 provisions of this chapter, or on behalf of any party to any action or
2 proceeding under the provisions of this chapter when the registration,
3 return or facts shown therein are directly involved in such action or
4 proceeding, in either of which events, the court may require the
5 production of, and may admit in evidence, so much of said registration,
6 return, or of the facts shown therein, as are pertinent to the action or
7 proceeding and no more. The commissioner of finance may, nevertheless,
8 publish a copy or a summary of any determination or decision rendered
9 after a formal hearing held pursuant to section 11-810 or 11-811 of this
10 chapter. Nothing herein shall be construed to prohibit the delivery to a
11 person or such person's duly authorized representative of a certified
12 copy of any registration or return filed by such person; nor to prohibit
13 the delivery of any original return, with any notation that the commis-
14 sioner of finance or the commissioner of motor vehicles may cause to be
15 made thereon, to the person filing the return, whether such person files
16 the return on his or her own behalf or on behalf of another, or to the
17 person on whose behalf the return is filed; nor to prohibit the commis-
18 sioner of finance from providing by rule for the display or production
19 of any original return, as an indicium of payment of the tax imposed by
20 this chapter; nor to prohibit the publication of statistics so classi-
21 fied as to prevent the identification of particular registrations and
22 returns and the items thereof; nor to prohibit the delivery of a certi-
23 fied copy of any registration or return to the United States of America
24 or any department thereof, the state of New York or any department ther-
25 eof, the city of New York or any department thereof provided it is
26 requested for official business, nor to prohibit the inspection by the
27 corporation counsel or other legal representatives of the city, the
28 attorney general of the state of New York or other legal representatives
29 of the department of motor vehicles, or by the district attorney of any
30 county within the city of the registration or return of any person who
31 shall bring action to set aside or review any tax assessed pursuant to
32 this section, or against whom an action or proceeding under this chapter
33 is instituted. Returns, or reproductions thereof, pertaining to any
34 motor vehicle registered pursuant to this section shall be preserved for
35 three years and thereafter until the commissioner of finance or the
36 commissioner of motor vehicles permits them to be destroyed.
37 b. (1) Any officer or employee of the city or the state of New York
38 who willfully violates the provisions of subdivision a of this section
39 shall be dismissed from office and be incapable of holding any public
40 office in this city or the state of New York for a period of five years
41 thereafter.
42 (2) Cross-reference: For criminal penalties, see chapter forty of this
43 title.
44 c. This section shall be deemed a state statute for purposes of para-
45 graph (a) of subdivision two of section eighty-seven of the public offi-
46 cers law.
47 d. Notwithstanding anything in subdivision a of this section to the
48 contrary, if a taxpayer has petitioned the tax appeals tribunal for
49 administrative review as provided in section one hundred seventy of the
50 charter of the preceding municipality as it existed January first, nine-
51 teen hundred ninety-four, the commissioner of finance shall be author-
52 ized to present to the tribunal any report or return of such taxpayer,
53 or any information contained therein or relating thereto, which may be
54 material or relevant to the proceeding before the tribunal. The tax
55 appeals tribunal shall be authorized to publish a copy or a summary of
56 any decision rendered pursuant to section one hundred seventy-one of the
S. 8578 849
1 charter of the preceding municipality as it existed January first, nine-
2 teen hundred ninety-four.
3 § 11-819 Notices and limitations of time. a. Any notice authorized or
4 required under the provisions of this chapter may be given to the person
5 for whom it is intended by mailing it in a postpaid envelope addressed
6 to such person at the address given in the last registration of a motor
7 vehicle filed by such person pursuant to the provisions of this chapter,
8 or in any application made by such person, or if no such registration
9 has been filed or application made, then to such address as may be
10 obtainable. The mailing of a notice as in this subdivision provided for
11 shall be presumptive evidence of the receipt of the same by the person
12 to whom addressed. Any period of time which is determined according to
13 the provisions of this chapter by the giving of notice shall commence to
14 run from the date of mailing of such notice as in this subdivision
15 provided.
16 b. The provisions of the civil practice law and rules or any other law
17 relative to limitations of time for the enforcement of a civil remedy
18 shall not apply to any proceeding or action taken by the city to levy,
19 appraise, assess, determine or enforce the collection of any tax or
20 penalty provided by this chapter. However, except in the case of a
21 wilfully false or fraudulent registration or return with intent to evade
22 the tax, no assessment of additional tax shall be made after the expira-
23 tion of more than three years from the date of such return; provided,
24 however, that where no registration or no return has been made as
25 provided by law, the tax may be assessed at any time.
26 c. Where before the expiration of the period prescribed in this
27 section for the assessment of an additional tax, a person has consented
28 in writing that such period be extended, the amount of such additional
29 tax due may be determined at any time within such extended period. The
30 period so extended may be further extended by subsequent consents in
31 writing made before the expiration of the extended period.
32 d. If any return, claim, statement, notice, application, or other
33 document required to be filed, or any payment required to be made, with-
34 in a prescribed period or on or before a prescribed date under authority
35 of any provision of this chapter is, after such period or such date,
36 delivered by United States mail to the commissioner of finance, commis-
37 sioner of motor vehicles, the tax appeals tribunal, bureau, office,
38 officer or person with which or with whom such document is required to
39 be filed, or to which or to whom such payment is required to be made,
40 the date of the United States postmark stamped on the envelope shall be
41 deemed to be the date of delivery. This subdivision shall apply only if
42 the postmark date falls within the prescribed period or on or before the
43 prescribed date for the filing of such document, or for making the
44 payment, including any extension granted for such filing or payment, and
45 only if such document or payment was deposited in the mail, postage
46 prepaid, properly addressed to the commissioner of finance, commissioner
47 of motor vehicles, the tax appeals tribunal, bureau, office, officer or
48 person with which or with whom the document is required to be filed or
49 to which or to whom such payment is required to be made. If any document
50 is sent by United States registered mail, such registration shall be
51 prima facie evidence that such document was delivered to the commission-
52 er of finance, commissioner of motor vehicles, the tax appeals tribunal,
53 bureau, office, officer or person to which or to whom addressed, and the
54 date of registration shall be deemed the postmark date. The commissioner
55 of finance or, where relevant, the tax appeals tribunal is authorized to
56 provide by regulation the extent to which the provisions of this subdi-
S. 8578 850
1 vision with respect to prima facie evidence of delivery and the postmark
2 date shall apply to certified mail. Except as provided in subdivision f
3 of this section, this subdivision shall apply in the case of postmarks
4 not made by the United States postal service only if and to the extent
5 provided by rule of the commissioner of finance or, where relevant, the
6 tax appeals tribunal.
7 e. When the last day prescribed under authority of this chapter,
8 including any extension of time, for performing any act falls on a
9 Saturday, Sunday or legal holiday in the state of New York, the perform-
10 ance of such act shall be considered timely if it is performed on the
11 next succeeding day which is not a Saturday, Sunday or legal holiday.
12 f. (1) Any reference in subdivision d of this section to the United
13 States mail shall be treated as including a reference to any delivery
14 service designated by the secretary of the treasury of the United States
15 pursuant to section seventy-five hundred two of the internal revenue
16 code and any reference in subdivision d of this section to a United
17 States postmark shall be treated as including a reference to any date
18 recorded or marked in the manner described in section seventy-five
19 hundred two of the internal revenue code by a designated delivery
20 service. If the commissioner of finance finds that any delivery service
21 designated by such secretary is inadequate for the needs of the city,
22 the commissioner of finance may withdraw such designation for purposes
23 of this title. The commissioner of finance may also designate additional
24 delivery services meeting the criteria of section seventy-five hundred
25 two of the internal revenue code for purposes of this title, or may
26 withdraw any such designation if the commissioner of finance finds that
27 a delivery service so designated is inadequate for the needs of the
28 city. Any reference in subdivision d of this section to the United
29 States mail shall be treated as including a reference to any delivery
30 service designated by the commissioner of finance and any reference in
31 subdivision d of this section to a United States postmark shall be
32 treated as including a reference to any date recorded or marked in the
33 manner described in section seventy-five hundred two of the internal
34 revenue code by a delivery service designated by the commissioner of
35 finance. Notwithstanding the provisions of this paragraph, any with-
36 drawal of designation or additional designation by the commissioner of
37 finance shall not be effective for purposes of service upon the tax
38 appeals tribunal, unless and until such withdrawal of designation or
39 additional designation is ratified by the president of the tax appeals
40 tribunal.
41 (2) Any equivalent of registered or certified mail designated by the
42 United States secretary of the treasury, or as may be designated by the
43 commissioner of finance pursuant to the same criteria used by such
44 secretary for such designations pursuant to section seventy-five hundred
45 two of the internal revenue code, shall be included within the meaning
46 of registered or certified mail as used in subdivision d of this
47 section. If the commissioner of finance finds that any equivalent of
48 registered or certified mail designated by such secretary or the commis-
49 sioner of finance is inadequate for the needs of the city, the commis-
50 sioner of finance may withdraw such designation for purposes of this
51 title. Notwithstanding the provisions of this paragraph, any withdrawal
52 of designation or additional designation by the commissioner of finance
53 shall not be effective for purposes of service upon the tax appeals
54 tribunal, unless and until such withdrawal of designation or additional
55 designation is ratified by the president of the tax appeals tribunal.
S. 8578 851
1 § 11-820 Construction and enforcement. This chapter shall be
2 construed and enforced in conformity with chapter one thousand thirty-
3 two of the laws of nineteen hundred sixty, pursuant to which it is
4 enacted.
5 CHAPTER 9
6 TAX UPON FOREIGN AND ALIEN INSURERS
7 § 11-901 Definitions. Wherever used in this chapter, the following
8 words and phrases shall mean and include:
9 "Alien insurer." Any insurer incorporated or organized under the laws
10 of any foreign nation, or of any province or territory not included
11 under the definition of a foreign insurer.
12 "Foreign insurer." Any insurer, except a mutual insurance company
13 taxed under the provisions of section nine thousand one hundred five of
14 the insurance law, incorporated or organized under the laws of any
15 state, as herein defined, other than this state.
16 "Fire insurance corporation, association or individuals." Any insurer,
17 regardless of the name, designation or authority under which it purports
18 to act, which insures property of any kind or nature against loss or
19 damage by fire.
20 "Loss or damage by fire." Loss or damage by fire, lightning, smoke or
21 anything used to combat fire, regardless of whether such risks or the
22 premiums therefor are stated or charged separately and apart from any
23 other risk or premium.
24 "State." Any state of the United States and the District of Columbia.
25 "Commissioner of finance." The commissioner of finance of the city or
26 any other officer of the city designated to perform the same functions.
27 "Department of finance." The department of finance of the city or any
28 other agency or department designated to perform the same functions.
29 "Fire commissioner." The fire commissioner of the city.
30 "Comptroller." The comptroller of the city.
31 "Tax appeals tribunal." The tax appeals tribunal established by
32 section one hundred sixty-eight of the charter of the preceding munici-
33 pality as it existed January first, nineteen hundred ninety-four.
34 § 11-902 General powers of the commissioner of finance. In addition
35 to all other powers granted to the commissioner of finance under this
36 chapter, the commissioner is hereby authorized and empowered:
37 1. To make, adopt and amend rules and regulations appropriate to the
38 carrying out of this chapter and the purposes thereof.
39 2. To compromise disputed claims in connection with taxes hereby
40 imposed.
41 3. To delegate his or her functions hereunder to any officer or
42 employee of the department of finance.
43 4. To prescribe reasonable methods, approved by the New York state
44 superintendent of insurance, for determining the amounts of premiums
45 subject to the tax.
46 5. To require any foreign or alien insurer subject to the tax to keep
47 detailed records of the premiums in a manner reasonably designed to show
48 the amounts thereof subject to the tax and to furnish such information
49 on request.
50 6. To assess, determine, revise and adjust the tax imposed under this
51 chapter.
52 7. To audit the reports of any insurer.
53 8. To allow an extension of time not in excess of thirty days for
54 filing the report and paying the tax required by this chapter, provided
55 the taxpayer requests such extension in writing prior to the date
S. 8578 852
1 prescribed for such filing and such payment by sections 11-904 and
2 11-903 of this chapter.
3 § 11-903 Tax on premiums on policies of foreign and alien insurers.
4 There shall be paid to the department of finance for the use and benefit
5 of the fire department of the city, on or before the first day of March,
6 in each year by every foreign and alien fire insurance corporation,
7 association or individuals which insure property against loss or damage
8 by fire, the sum of two percent of all gross direct premiums less return
9 premiums which, during the year ending on the preceding thirty-first day
10 of December, shall have been received by any such insurer for any insur-
11 ance against loss or damage by fire in the city. Any such insurer which
12 in any year shall cease or terminate doing business in the city shall
13 pay the tax for such year within thirty days after such cessation or
14 termination.
15 § 11-904 Report of premiums by insurers. Each insurer required to pay
16 a tax under this chapter shall, at the time such tax is paid or payable,
17 whichever is sooner, render to the commissioner of finance a verified
18 report setting forth such information as may be required by the commis-
19 sioner for the determination of the tax and the proper administration of
20 this chapter. The commissioner of finance shall prescribe the form and
21 furnish the necessary forms to enable such insurers to make such
22 reports. The commissioner or the commissioner's designated represen-
23 tative or the tax appeals tribunal or its designated representative
24 shall have power to examine any such insurer under oath and to require
25 the production by such insurer of all books and papers as the commis-
26 sioner or the tax appeals tribunal may deem necessary. All expenses of
27 collecting such tax shall be paid by the commissioner of finance from
28 the funds received under this chapter prior to the distribution thereof
29 as hereinafter authorized.
30 § 11-905 Interest and penalties. (a) Interest on underpayments. If any
31 amount of tax is not paid on or before the last date prescribed for
32 payment, without regard to any extension of time granted for payment,
33 interest on such amount at the underpayment rate set by the commissioner
34 of finance pursuant to subdivision (g) of this section, or, if no rate
35 is set, at the rate of seven and one-half percent per annum, shall be
36 paid for the period from such last date to the date of payment. In
37 computing the amount of interest to be paid, such interest shall be
38 compounded daily. Interest under this subdivision shall not be paid if
39 the amount thereof is less than one dollar.
40 (b) (1) Failure to file return. (A) In case of failure to file a
41 return under this chapter on or before the prescribed date, determined
42 with regard to any extension of time for filing, unless it is shown that
43 such failure is due to reasonable cause and not due to willful neglect,
44 there shall be added to the amount required to be shown as tax on such
45 return five percent of the amount of such tax if the failure is for not
46 more than one month, with an additional five percent for each additional
47 month or fraction thereof during which such failure continues, not
48 exceeding twenty-five percent in the aggregate.
49 (B) In the case of a failure to file a return of tax within sixty days
50 of the date prescribed for filing of such return, determined with regard
51 to any extension of time for filing, unless it is shown that such fail-
52 ure is due to reasonable cause and not due to willful neglect, the addi-
53 tion to tax under subparagraph (A) of this paragraph shall not be less
54 than the lesser of one hundred dollars or one hundred percent of the
55 amount required to be shown as tax on such return.
S. 8578 853
1 (C) For purposes of this paragraph, the amount of tax required to be
2 shown on the return shall be reduced by the amount of any part of the
3 tax which is paid on or before the date prescribed for payment of the
4 tax and by the amount of any credit against the tax which may be claimed
5 upon the return.
6 (2) Failure to pay tax shown on return. In case of failure to pay the
7 amount shown as tax on a return required to be filed under this chapter
8 on or before the prescribed date, determined with regard to any exten-
9 sion of time for payment, unless it is shown that such failure is due to
10 reasonable cause and not due to willful neglect, there shall be added to
11 the amount shown as tax on such return one-half of one percent of the
12 amount of such tax if the failure is not for more than one month, with
13 an additional one-half of one percent for each additional month or frac-
14 tion thereof during which such failure continues, not exceeding twenty-
15 five percent in the aggregate. For the purpose of computing the addition
16 for any month the amount of tax shown on the return shall be reduced by
17 the amount of any part of the tax which is paid on or before the begin-
18 ning of such month and by the amount of any credit against the tax which
19 may be claimed upon the return. If the amount of tax required to be
20 shown on a return is less than the amount shown as tax on such return,
21 this paragraph shall be applied by substituting such lower amount.
22 (3) Failure to pay tax required to be shown on return. In case of
23 failure to pay any amount in respect of any tax required to be shown on
24 a return required to be filed under this chapter which is not so shown,
25 including a determination made pursuant to section 11-906 of this chap-
26 ter, within ten days of the date of a notice and demand therefor, unless
27 it is shown that such failure is due to reasonable cause and not due to
28 willful neglect, there shall be added to the amount of tax stated in
29 such notice and demand one-half of one percent of such tax if the fail-
30 ure is not for more than one month, with an additional one-half of one
31 percent for each additional month or fraction thereof during which such
32 failure continues, not exceeding twenty-five percent in the aggregate.
33 For the purpose of computing the addition for any month, the amount of
34 tax stated in the notice and demand shall be reduced by the amount of
35 any part of the tax which is paid before the beginning of such month.
36 (4) Limitations on additions.
37 (A) With respect to any return, the amount of the addition under para-
38 graph one of this subdivision shall be reduced by the amount of the
39 addition under paragraph two of this subdivision for any month to which
40 an addition applies under both paragraphs one and two of this subdivi-
41 sion. In any case described in subparagraph (B) of paragraph one of
42 this subdivision, the amount of the addition under such paragraph one
43 shall not be reduced below the amount provided in such subparagraph.
44 (B) With respect to any return, the maximum amount of the addition
45 permitted under paragraph three of this subdivision shall be reduced by
46 the amount of the addition under paragraph one of this subdivision,
47 determined without regard to subparagraph (B) of such paragraph one
48 which is attributable to the tax for which the notice and demand is made
49 and which is not paid within ten days of such notice and demand.
50 (c) Underpayment due to negligence. (1) If any part of an underpayment
51 of tax is due to negligence or intentional disregard of this chapter or
52 any rules and regulations hereunder, but without intent to defraud,
53 there shall be added to the tax a penalty equal to five percent of the
54 underpayment.
55 (2) There shall be added to the tax, in addition to the amount deter-
56 mined under paragraph one of this subdivision an amount equal to fifty
S. 8578 854
1 percent of the interest payable under subdivision (a) of this section
2 with respect to the portion of the underpayment described in such para-
3 graph one which is attributable to the negligence or intentional disre-
4 gard referred to in such paragraph one, for the period beginning on the
5 last date prescribed by law for payment of such underpayment, determined
6 without regard to any extension, and ending on the date of the assess-
7 ment of the tax, or, if earlier, the date of the payment of the tax.
8 (d) Underpayment due to fraud. (1) If any part of an underpayment of
9 tax is due to fraud, there shall be added to the tax a penalty equal to
10 fifty percent of the underpayment.
11 (2) There shall be added to the tax, in addition to the penalty deter-
12 mined under paragraph one of this subdivision, an amount equal to fifty
13 percent of the interest payable under subdivision (a) of this section
14 with respect to the portion of the underpayment described in such para-
15 graph one which is attributable to fraud, for the period beginning on
16 the last day prescribed by law for payment of such underpayment, deter-
17 mined without regard to any extension, and ending on the date of the
18 assessment of the tax, or, if earlier, the date of the payment of the
19 tax.
20 (3) The penalty under this subdivision shall be in lieu of any other
21 addition to tax imposed by subdivision (b) or (c) of this section.
22 (e) Additional penalty. Any insurer who, with fraudulent intent, shall
23 fail to pay any tax imposed by this chapter, or to make, render, sign or
24 certify any return, or to supply any information within the time
25 required by or under this chapter, shall be liable for a penalty of not
26 more than one thousand dollars, in addition to any other amounts
27 required under this chapter to be imposed, assessed and collected by the
28 commissioner of finance. The commissioner of finance shall have the
29 power, in his or her discretion, to waive, reduce or compromise any
30 penalty under this subdivision.
31 (f) The interest and penalties imposed by this section shall be paid
32 and disposed of in the same manner as other revenues from this chapter.
33 Unpaid interest and penalties may be enforced in the same manner as the
34 tax imposed by this chapter.
35 (g) (1) Authority to set interest rates. The commissioner of finance
36 shall set the overpayment and underpayment rates of interest to be paid
37 pursuant to subdivision (a) of this section and subdivision (a) of
38 section 11-906 of this chapter, but if no such overpayment rate of
39 interest are set, such rate or rates shall be deemed to be set at six
40 percent per annum and such underpayment rate shall be deemed to be set
41 at seven and one-half percent per annum. Such rates shall be the over-
42 payment and underpayment rates prescribed in paragraph two of this
43 subdivision but the underpayment rate shall not be less than seven and
44 one-half percent per annum. Any such rates set by the commissioner of
45 finance shall apply to taxes, or any portion thereof, which remain or
46 become due or overpaid on or after the date on which such rates become
47 effective and shall apply only with respect to interest computed or
48 computable for periods or portions of periods occurring in the period in
49 which such rates are in effect.
50 (2) General rule. (A) Overpayment rate. The overpayment rate set under
51 this subdivision shall be the sum of (i) the federal short-term rate as
52 provided under paragraph three of this subdivision, plus (ii) two
53 percentage points.
54 (B) Underpayment rate. The underpayment rate set under this subdivi-
55 sion shall be the sum of (i) the federal short-term rate as provided
S. 8578 855
1 under paragraph three of this subdivision, plus (ii) seven percentage
2 points.
3 (3) Federal short-term rate. For purposes of this subdivision:
4 (A) The federal short-term rate for any month shall be the federal
5 short-term rate determined by the United States secretary of the treas-
6 ury during such month in accordance with subsection (d) of section
7 twelve hundred seventy-four of the internal revenue code for use in
8 connection with section six thousand six hundred twenty-one of the
9 internal revenue code. Any such rate shall be rounded to the nearest
10 full percent, or, if a multiple of one-half of one percent, such rate
11 shall be increased to the next highest full percent.
12 (B) Period during which rate applies.
13 (i) In general. Except as provided in clause (ii) of this subpara-
14 graph, the federal short-term rate for the first month in each calendar
15 quarter shall apply during the first calendar quarter beginning after
16 such month.
17 (ii) Special rule for the month of September, nineteen hundred eight-
18 y-nine. The federal short-term rate for the month of April, nineteen
19 hundred eighty-nine shall apply with respect to setting the rate of
20 interest for the month of September, nineteen hundred eighty-nine.
21 (4) Publication of interest rate. The commissioner of finance shall
22 cause to be published in the City Record, and give other appropriate
23 general notice of, the interest rate to be set under this subdivision no
24 later than twenty days preceding the first day of the calendar quarter
25 during which such interest rate applies. The setting and publication of
26 such interest rate shall not be included within paragraph (a) of subdi-
27 vision five of section one thousand forty-one of the city charter of the
28 preceding municipality as it existed January first, nineteen hundred
29 ninety-four relating to the definition of a rule.
30 § 11-906 Assessment, refund, collection, review and reserves. (a) The
31 provisions of the civil practice law and rules or any other law relative
32 to limitations of time for the enforcement of a civil remedy shall not
33 apply to any proceeding or action by the commissioner of finance to
34 levy, assess, determine or enforce the collection of tax, interest or
35 penalty imposed by this chapter. However, except in the case of a
36 wilfully false or fraudulent report, no assessment of additional tax,
37 interest or penalty shall be made after the expiration of more than
38 three years from the date of the filing of a report, provided, however,
39 that where no report has been filed as provided by law the tax may be
40 assessed at any time. The commissioner of finance shall refund or cred-
41 it, with interest at the overpayment rate set by the commissioner of
42 finance pursuant to subdivision (g) of section 11-905 of this chapter
43 or, if no rate is set, at the rate of six percent per annum computed
44 from the date of overpayment to a date, to be determined by the commis-
45 sioner of finance, preceding the date of a refund check by not more than
46 thirty days, any tax, penalty or interest erroneously, illegally or
47 unconstitutionally collected or paid if application to the commissioner
48 of finance for such refund shall be made within six months from the
49 payment thereof. Notice of any determination of the commissioner of
50 finance with respect to an assessment of tax, interest or penalty or
51 with respect to a claim for refund or any other notice, demand or
52 request shall be given by mailing the same to the insurer to the address
53 of its city of Staten Island office last filed with the commissioner of
54 finance or, if there is no such office, to the address of its main
55 office last filed with the commissioner of finance or, in the absence of
56 any filed address, to such address as may be obtainable. The mailing of
S. 8578 856
1 any notice, demand or request by the commissioner of finance shall be
2 presumptive evidence of its receipt by the insurer and any period of
3 time to be determined with reference to the giving of such notice,
4 demand or request shall commence to run from the date of such mailing.
5 The determination of the commissioner of finance shall finally and irre-
6 vocably fix the amount of any tax, interest or penalty due or to be
7 refunded unless the taxpayer, within ninety days after the giving of
8 notice of such determination, or if the commissioner of finance has
9 established a conciliation procedure pursuant to section 11-124 of this
10 title and the taxpayer has requested a conciliation conference in
11 accordance therewith, within ninety days from the mailing of a concil-
12 iation decision or the date of the commissioner's confirmation of the
13 discontinuance of the conciliation proceeding, both (1) serves a peti-
14 tion upon the commissioner of finance and (2) files a petition with the
15 tax appeals tribunal for a hearing, or unless the commissioner of
16 finance of his or her own motion shall redetermine the same. Such hear-
17 ing and any appeal to the tax appeals tribunal sitting en banc from the
18 decision rendered in such hearing shall be conducted in the manner and
19 subject to the requirements prescribed by the tax appeals tribunal
20 pursuant to sections one hundred sixty-eight through one hundred seven-
21 ty-two of the charter of the preceding municipality as it existed Janu-
22 ary first, nineteen hundred ninety-four. After such hearing the tax
23 appeals tribunal shall give notice of its decision to the taxpayer and
24 to the commissioner of finance with reference to the amount of the tax,
25 interest or penalty assessed or to be refunded. The decision of the tax
26 appeals tribunal sitting en banc shall be reviewable for error, illegal-
27 ity or unconstitutionality or any other reason, by a proceeding under
28 article seventy-eight of the civil practice law and rules if such
29 proceeding is commenced by the person against whom the tax was assessed
30 within four months after the giving of the notice of such tax appeals
31 tribunal decision. Such proceeding shall not be commenced by the taxpay-
32 er unless: (1) the amount of any tax assessed and sought to be reviewed
33 with penalties and interest thereon, if any, shall be first deposited
34 with the commissioner of finance and there shall be filed with the
35 commissioner of finance an undertaking in such amount and with such
36 sureties as a justice of the supreme court shall approve, to the effect
37 that if such proceeding be dismissed or the decision confirmed, the
38 taxpayer will pay all costs and charges which may accrue against the
39 taxpayer in the prosecution of the proceeding, or (2) in the case of a
40 review of a decision assessing any taxes, penalties and interest, at the
41 option of the taxpayer, such undertaking may be in a sum sufficient to
42 cover all of the taxes, penalties and interest assessed by such decision
43 plus the costs and charges which may accrue against the taxpayer in the
44 prosecution of the proceeding, in which event the taxpayer shall not be
45 required to deposit such taxes, penalties and interest as a condition
46 precedent to the commencement of the proceeding. No determination or
47 proposed determination of tax, interest or penalty due or to be refunded
48 shall be reviewed or enjoined in any manner except as set forth herein.
49 (b) In cases where the taxpayer has applied for a refund and has
50 commenced a proceeding under article seventy-eight of the civil practice
51 law and rules to review a decision of the tax appeals tribunal adverse
52 to such taxpayer on its application for a refund, the commissioner of
53 finance shall set up appropriate reserves to meet any decision adverse
54 to the city.
55 (c) In computing the amount of interest to be paid under this section,
56 such interest shall be compounded daily.
S. 8578 857
1 § 11-907 Place of business to be reported. Every insurer, on or
2 before the first day of March in each year, and as often in each year as
3 such insurer shall change its principal place of business or change or
4 terminate any office or place of business in the city, shall report in
5 writing, to the commissioner of finance, the location of its principal
6 place of business and any new principal place of business or of any new
7 office or place of business in the city or of the termination of any
8 such office or place of business. In the event of such change or termi-
9 nation, such report shall be made no later than fifteen days after such
10 change or termination. Any insurer who fails or neglects to make such
11 report within the time limited therefor shall be subject to a penalty of
12 one hundred dollars and, in addition thereto, fifty dollars for each
13 month or part thereof during which such report is not made. The total
14 of such penalties shall not exceed one thousand dollars.
15 § 11-908 Suits for violations. The tax provided to be paid by this
16 chapter, and the pecuniary penalties and interest imposed therein, or
17 any or either of them, may be sued for and recovered, with costs of
18 suit, in any court of record, by the commissioner of finance.
19 § 11-909 Distribution of tax on policies covering property in the city
20 of Staten Island. (a) The moneys received by the commissioner of finance
21 as a tax on policies covering property in the city shall be disbursed by
22 the commissioner of finance as follows:
23 1. Ten percent to the firemen's association of the state of New York,
24 for the endowment, benefit and maintenance of the volunteer firemen's
25 home at Hudson, but in no event to exceed the sum of thirty-five thou-
26 sand dollars annually.
27 2. The balance to the general fund of the city established pursuant to
28 section one hundred nine of the charter, except as provided in paragraph
29 three of this subdivision.
30 3. a. Volunteer firemen's benevolent fund; trustee. From the balance
31 specified in paragraph two of this subdivision, a sum, not to exceed one
32 hundred fifty thousand dollars in any one year, shall be paid into a
33 fund to be known as the volunteer firemen's benevolent fund, which shall
34 be administered as provided by the fire commissioner, as trustee of such
35 fund, for the benefit of indigent volunteer firefighters, their surviv-
36 ing spouses and orphans.
37 b. Persons entitled to benefits from fund. All funds received by the
38 fire commissioner as trustee under this paragraph shall be expended by
39 the fire commissioner for the relief of:
40 (i) all indigent volunteer firefighters who served as such for a peri-
41 od of five years in a duly organized volunteer fire company in the
42 former towns of New Lots, Flatlands, Gravesend, New Utrecht and Flatbush
43 in the county of Kings, or in the territory now included in the city of
44 Staten Island, or in the territory now included in the borough of
45 Queens, or in the territory now included in the borough of the Bronx,
46 and who were honorably discharged after such five years of service, or
47 who having been members of a duly organized volunteer fire company with-
48 in any such town or territory, which company was disbanded by reason of
49 the installation of a paid fire department, and were members of such
50 company for at least one year prior to its disbandment;
51 (ii) the surviving spouses and orphans of any such volunteer fire-
52 fighters.
53 c. Fund benefits of beneficiaries on rolls as of December thirty-
54 first, nineteen hundred fifty-one. During the lifetime of those relief
55 beneficiaries who appear as such as of December thirty-first, nineteen
56 hundred fifty-one upon the records of the trustees of the exempt fire-
S. 8578 858
1 men's benevolent fund of the county of Kings, or of the trustees of the
2 exempt firemen's benevolent fund of the borough of Queens, or of the
3 trustees of the exempt firemen's benevolent fund of the borough of
4 Staten Island, or of the trustees of the exempt firemen's benevolent
5 fund of the borough of the Bronx, it shall be the duty of the fire
6 commissioner, as such trustee, to pay to such beneficiaries from the
7 volunteer firemen's benevolent fund referred to in subparagraph a of
8 this paragraph, the same amounts as were being periodically paid to such
9 beneficiaries as of June thirtieth, nineteen hundred fifty-two.
10 d. Fund benefits of residents of firemen's home. It shall be the duty
11 of the fire commissioner, as such trustee, to pay from such fund
12 referred to in subparagraph a of this paragraph, the sum of ten dollars
13 monthly to each volunteer firefighter in residence at the volunteer
14 firemen's home at Hudson, who qualified for entrance into such home by
15 reason of service as a volunteer firefighter within the area now
16 included within the boundaries of the city. No other payments shall be
17 made from such fund to any such volunteer firefighter while in residence
18 at such home.
19 e. Eligibility of persons who applied for fund benefits after December
20 thirty-first, nineteen hundred fifty-one, and prior to the establishment
21 of fund. Upon the establishment of the volunteer firemen's benevolent
22 fund referred to in subparagraph a of this paragraph, the fire commis-
23 sioner or the fire commissioner's authorized subordinates shall investi-
24 gate and determine the need for benefits of all persons who, after
25 December thirty-first, nineteen hundred fifty-one and prior to the
26 establishment of such volunteer firemen's benevolent fund, applied for
27 benefits payable from any of the benevolent funds mentioned in subpara-
28 graph c of this paragraph, and who are receiving benefits therefrom at
29 the time of the establishment of such fund referred to in subparagraph a
30 of this paragraph. No such person shall be found to be in need of bene-
31 fits, nor shall any such person be paid any benefits from such last-men-
32 tioned fund unless the fire commissioner or the fire commissioner's
33 authorized subordinates shall determine that such person is indigent. In
34 the event that any such person is thus found to be in need of benefits,
35 the fire commissioner shall pay to such person from such last-mentioned
36 fund, the same periodic amounts as the trustees mentioned in subpara-
37 graph c of this paragraph were paying as of June thirtieth, nineteen
38 hundred fifty-two, to a person who had the same status and who was
39 receiving benefits from the borough or county fund which would be
40 currently liable for the payment of benefits to such person, but for the
41 provision of section 13-532 of the code of the preceding municipality.
42 It shall be the duty of the fire commissioner and the fire commission-
43 er's authorized subordinates to maintain and carry out continuously,
44 such investigation procedures as may be necessary to assure that bene-
45 fits will not be paid from such fund to any persons who are not in need
46 as herein specified.
47 f. Eligibility for benefits of persons applying therefor after estab-
48 lishment of fund. All persons applying after the establishment of the
49 volunteer firemen's benevolent fund for benefits payable therefrom shall
50 be investigated as to need by the fire commissioner or the fire commis-
51 sioner's authorized subordinates, and the eligibility of such persons
52 for benefits and the amount thereof to be awarded and paid to them shall
53 be determined by the fire commissioner or the fire commissioner's
54 authorized subordinates in accordance with the standards specified in
55 subparagraph e of this paragraph. Benefits shall be paid from such fund
56 to eligible persons in accordance with such determination and it shall
S. 8578 859
1 be the duty of the fire commissioner and the fire commissioner's subor-
2 dinates continuously to maintain and carry out as to such persons inves-
3 tigation procedures such as are described in subparagraph e of this
4 paragraph. The fire commissioner, as part of his or her investigation to
5 determine eligibility of persons for fund benefits, shall request from
6 the duly appointed representative of the volunteer firefighters in each
7 borough a report on such person's service and indigency. Such report
8 shall be solely for the information of the fire commissioner and shall
9 not be binding upon the fire commissioner in arriving at a determination
10 as to eligibility. In the event that such report is not submitted within
11 ten days from the date of request, the fire commissioner shall determine
12 eligibility on the basis of the facts developed in the fire commission-
13 er's own investigation.
14 g. Excess moneys. In the event that the benefits paid by the fire
15 commissioner, as trustee, during any period of one year beginning on the
16 first day of February shall not equal the sum of one hundred fifty thou-
17 sand dollars, the unexpended balance shall be paid into the general fund
18 of the city established pursuant to section one hundred nine of the
19 charter, except that the fire commissioner may retain in the volunteer
20 firemen's benevolent fund such amount as may be necessary to meet the
21 commitments of such fund until the revenue from the tax collected under
22 this chapter in the ensuing taxable year shall become available.
23 h. Depositories. The fire commissioner, as trustee, is hereby
24 empowered and directed to receive all moneys and assets belonging or
25 payable to such volunteer firemen's benevolent fund and shall deposit
26 all such moneys to the credit of such fund in banks and trust companies
27 to be selected by the fire commissioner.
28 i. Bond. The fire commissioner, as trustee of such fund, shall give a
29 bond with one or more sureties, in a sum sufficient for the faithful
30 performance of his or her duties, such bond to be approved as to amount
31 and adequacy, by the comptroller and filed in the comptroller's office.
32 j. Records. The officers and employees of the fire department who are
33 responsible for the maintenance of the books and records of the New York
34 fire department pension fund shall have charge of, and keep the accounts
35 of the fire commissioner as trustee of the volunteer firemen's benevo-
36 lent fund.
37 k. Reports. The fire commissioner, as trustee of such volunteer fire-
38 men's benevolent fund, shall submit to the mayor on or before the first
39 day of April of each year, a verified report in which shall be set forth
40 the account of the fire commissioner's proceedings as such trustee
41 during the twelve-month period ending on the thirty-first day of January
42 immediately preceding. Such report shall include a statement of all
43 receipts and disbursements on account of such benevolent fund, a list of
44 the names, residences and as nearly as possible, the ages of the benefi-
45 ciaries of such fund and the respective amounts paid to them during such
46 period.
47 1. Audit. The comptroller shall have the power to audit the books and
48 records of the fire commissioner as trustee of the volunteer firemen's
49 benevolent fund.
50 (b) The moneys received by the fire commissioner as trustee pursuant
51 to the provisions of paragraph three of subdivision (a) of this section
52 shall be expended by the fire commissioner only as provided in such
53 paragraph.
S. 8578 860
1 CHAPTER 10
2 OCCUPANCY TAX FOR LOW RENT HOUSING AND SLUM CLEARANCE
3 § 11-1001 Legislative findings. It is hereby declared that: In
4 certain areas of the city of Staten Island there exist unsanitary or
5 substandard housing conditions owing to overcrowding and concentration
6 of population, improper planning, excessive land coverage, lack of prop-
7 er light, air and space, unsanitary design and arrangement, or lack of
8 proper sanitary facilities; there is not an adequate supply of decent,
9 safe and sanitary dwelling accommodations for persons of low income;
10 these conditions cause an increase and spread of disease and crime and
11 constitute a menace to the health, safety, morals, welfare and comfort
12 of the citizens of the state, and impair economic values; these condi-
13 tions cannot be remedied by the ordinary operation of private enter-
14 prise; the clearance, replanning and reconstruction of the areas in
15 which unsanitary or substandard housing conditions exist and the provid-
16 ing of decent, safe and sanitary dwelling accommodations in such areas
17 and elsewhere for persons of low income are public uses and purposes for
18 which public money may be spent and private property acquired; therefore
19 the necessity in the public interest to enact the provisions of this
20 chapter is hereby declared, as a matter of legislative determination.
21 § 11-1002 Low rent housing and slum clearance; governmental functions.
22 It is hereby declared as a matter of legislative determination that the
23 clearing of areas in which the conditions described in section 11-1001
24 of this chapter exist and the furnishing of low rent housing for the
25 occupants thereof be hereafter a function of the government of the city
26 of Staten Island.
27 § 11-1003 Housing authority; agent for city. It is hereby declared
28 that the city housing authority be and it hereby is appointed as the
29 agent for the city of Staten Island to carry out the functions described
30 in section 11-1002 of this chapter.
31 § 11-1004 Definitions. When used in this chapter: a. The word "occu-
32 pation" means the use or possession for a consideration of any premises
33 under any lease, concession, permit, right of access, license to use, or
34 other agreement, for any gainful purpose.
35 b. The word "occupant" means any person who uses or possesses for a
36 consideration any premises under any lease, concession, permit, right of
37 access, license to use or other agreement for any gainful purpose.
38 c. The word "person" means an individual, co-partnership, society,
39 association, joint-stock company, corporation, estate, receiver, assig-
40 nee, trustee or any other person acting in a fiduciary capacity, whether
41 appointed by a court or otherwise, and any combination of individuals.
42 d. The word "premises" means any real property, or any part thereof,
43 any kind of space, or structure, except premises, as defined in this
44 subdivision, which are located in, upon, above or under any public
45 street, highway or public place, separately occupied in the city of
46 Staten Island by any person for his or her own use for gainful purpose
47 or by any concessionaire for such use for gainful purpose, whether by
48 ownership, lease, sublease, profit-sharing arrangement or otherwise.
49 e. The words "rental value" mean the amount of the consideration annu-
50 ally fixed or charged against any person for the occupation of any prem-
51 ises during the period of one year commencing on July sixteenth of the
52 year prior to the year in which the tax is due and terminating on July
53 fifteenth of the year in which the tax is due, or if computed on a basis
54 other than an annual basis, then the amount which would be equivalent to
55 an annual charge for the occupation of the premises.
S. 8578 861
1 f. The words "non-federal project" shall mean a project not aided or
2 financed in whole or in part by the federal government and where such
3 government does not reserve the right to approve or supervise the
4 construction or operation of the project.
5 g. The words "vending machine" mean a machine which vends or sells
6 tangible personal property; and shall also include but not be limited to
7 amusement devices, automatic sanitary facilities and all other machines
8 vending services.
9 § 11-1005 Imposition of the tax. a. To provide additional funds for
10 the purpose of fulfilling any contract to make capital or periodic
11 subsidies to the city housing authority in aid of a low rent or slum
12 clearance project or for the purpose of paying an indebtedness incurred
13 for a low rent or slum clearance project, every occupant of premises for
14 a year or any part thereof in excess of one month and fifteen days shall
15 pay annually to the commissioner of finance on June twentieth of each
16 year until and including June twentieth, nineteen hundred eighty-one, a
17 tax for each separate premises occupied at the rates computed, with
18 reference to the rental value for separate premises in the city of
19 Staten Island, as specified in the following table:
20 ======================================================================
21 When the rental And not The amount of
22 value is at least more than the tax shall be
23 ________________________________________________________________________
24 $1.00................... $1,000.99 $2.00
25 1,001.00................... 2,000.99 4.00
26 2,001.00................... 3,000.99 6.00
27 3,001.00................... 4,000.99 8.00
28 4,001.00................... 5,000.99 10.00
29 5,001.00 and over........................... 12.00
30 ========================================================================
31 b. Where the premises are occupied by vending machines which sell
32 tangible personal property the tax shall be computed as specified in the
33 following table:
34 ========================================================================
35 When the total value of the
36 coins used in such vending The amount of
37 machines is the tax shall be
38 ________________________________________________________________________
39 $.01................................... $ .20
40 .02 to .14 incl....................... .40
41 .15 to .24 incl....................... 1.00
42 .25 and over.......................... 2.00
43 ========================================================================
44 c. Where the premises are occupied by vending machines other than
45 those which sell tangible personal property the tax shall be computed as
46 specified in the following table:
47 ========================================================================
48 When the total value of the
49 coins used in such vending The amount of
50 machines is the tax shall be
51 ________________________________________________________________________
52 $.01..................................... $.40
53 .02 and over............................ 2.00
54 ========================================================================
55 § 11-1006 Exemptions. No tax as imposed by section 11-1005 of this
56 chapter shall be due or payable in any event for the occupation of any
S. 8578 862
1 of the premises described in this section to the extent so occupied and
2 no return need be made therefor pursuant to the provisions of this chap-
3 ter if any of the following conditions be demonstrated to the satisfac-
4 tion of the commissioner of finance:
5 1. That the premises are occupied by:
6 (a) Peddlers.
7 (b) Bootblacks, excluding shoe shine machines or enterprises where
8 services other than the shining of shoes are rendered.
9 (c) Operators of pushcarts.
10 (d) Operators of kiosk or subway stands engaged solely and exclusively
11 in the sale of newspapers, magazines and periodicals, or any combination
12 thereof.
13 (e) Operators of stoop line stands licensed pursuant to chapter two of
14 title twenty of the code of the preceding municipality.
15 (f) Operators of newspaper stands licensed pursuant to chapter two of
16 title twenty of the code of the preceding municipality.
17 2. That the premises are occupied for a period of less than one month
18 and fifteen days during the period of one year preceding July fifteenth
19 of the year in which the tax is due.
20 3. That the premises are occupied by a co-operative corporation organ-
21 ized under the provisions of the cooperative corporations law of the
22 state of New York, or an agricultural co-operative organized under the
23 authority of the federal government.
24 4. That the premises are occupied by the state of New York, or any
25 public corporation, including a public corporation created pursuant to
26 agreement or compact with another state or the dominion of Canada,
27 improvement district or other political subdivision of the state where
28 it is the purchaser, user or consumer.
29 5. That the premises are occupied by the United Nations or other
30 world-wide international organizations of which the United States of
31 America is a member.
32 6. That the premises are occupied by a corporation, or association, or
33 trust, or community chest, fund or foundation, organized and operated
34 exclusively for religious, charitable, or educational purposes, or for
35 the prevention of cruelty to children or animals, no part of the net
36 earnings of which inures to the benefit of any private shareholder or
37 individual, and no substantial part of the activities of which is carry-
38 ing on propaganda, or otherwise attempting to influence legislation;
39 provided, however, that nothing in this subdivision shall include an
40 organization operated for the primary purpose of carrying on a trade or
41 business for profit, whether or not all of its profits are payable to
42 one or more organizations described in this subdivision.
43 7. That the premises are occupied by the United States of America
44 under circumstances which make the premises immune from taxation.
45 § 11-1007 Returns; payment of taxes. On or before the twentieth day
46 of June in each year, every person subject to a tax hereunder, shall
47 file a return with the commissioner of finance on the form to be
48 furnished by the commissioner of finance. At the time of filing such
49 return each person shall pay to the commissioner of finance the tax
50 imposed pursuant to this chapter. Such tax shall be due and payable
51 annually upon the twentieth day of June, whether or not a return is
52 filed.
53 § 11-1008 Presumption and burden of proof. It shall be presumed that
54 the occupant of any premises is subject to the tax until the contrary is
55 established, and the burden of proving that any occupation of premises
56 is exempt from taxation shall be upon such occupant.
S. 8578 863
1 § 11-1009 Determination of tax by the commissioner of finance. a. If
2 a return required by this chapter is not filed, or if a return when
3 filed is incorrect or insufficient and the maker fails to file a
4 corrected or sufficient return within twenty days after it is required
5 by a notice from the commissioner of finance, the commissioner of
6 finance shall tentatively determine the amount of tax due from such
7 information as he or she may be able to obtain and, if necessary, may
8 estimate the tax on the basis of external indices. The commissioner of
9 finance shall give notice of the amount so fixed to the person liable
10 for the tax. Unless the person against whom the tax is assessed shall
11 within fifteen days after the giving of such notice apply in writing to
12 the commissioner of finance for a hearing to correct such assessment,
13 such notice shall constitute a final and irrevocable determination of
14 the tax. After such hearing the commissioner of finance shall give
15 notice of his or her decision to the person liable for the tax.
16 b. Such determination and the decision of the commissioner of finance
17 upon any application to correct may be reviewed for error, illegality or
18 unconstitutionality or for any reason whatsoever by a proceeding under
19 article seventy-eight of the civil practice law and rules in the nature
20 of a certiorari proceeding if application therefor is made to the
21 supreme court within thirty days after the giving of notice thereof.
22 Whenever under this chapter a proceeding to review is instituted, it
23 shall not be allowed unless the amount of any tax sought to be reviewed,
24 with penalties thereon, if any, shall be first deposited with the
25 commissioner of finance, and an undertaking filed with the commissioner
26 of finance, in such amount and with such sureties as a justice of the
27 supreme court shall approve, to the effect that if such proceeding be
28 dismissed or the tax confirmed, such person will pay all costs and
29 charges which may accrue in the prosecution of such proceeding.
30 § 11-1010 Refunds. The commissioner of finance shall refund any tax
31 erroneously, illegally or unconstitutionally collected by or paid to him
32 or her, under protest in writing, stating in detail the ground or
33 grounds of the protest, if application therefor shall be made to the
34 commissioner of finance within one year from the payment thereof. For
35 like cause and within the same period a refund may be made on the initi-
36 ative of the commissioner of finance. Whenever a refund is made the
37 commissioner of finance shall state his or her reasons therefor in writ-
38 ing. A person shall not be entitled to a hearing in connection with any
39 application for a refund if he or she has already been given the oppor-
40 tunity of a hearing as provided in section 11-1009 of this chapter. No
41 refund shall be made of a tax or penalty paid pursuant to a determi-
42 nation of the commissioner of finance as provided in section 11-1009 of
43 this chapter, unless the commissioner of finance, after a hearing as in
44 said section provided, or of his or her own motion, shall have reduced
45 the tax or penalty, or it shall have been established in a proceeding
46 under article seventy-eight of the civil practice law and rules that
47 such determination was erroneous, illegal, unconstitutional, or other-
48 wise improper, in which event a refund with interest shall be made as
49 provided upon the determination of such proceeding. An application for
50 a refund made as provided in this chapter shall be deemed an application
51 for a revision of any tax or penalty complained of and the commissioner
52 of finance may receive evidence with respect thereto. After making his
53 or her determination the commissioner of finance shall give notice ther-
54 eof to the person interested who shall be entitled to review such deter-
55 mination by a proceeding under article seventy-eight of the civil prac-
56 tice law and rules if application to the supreme court be made therefor
S. 8578 864
1 within thirty days after such determination and an undertaking shall
2 first be filed with the commissioner of finance in such amount and with
3 such sureties as a justice of the supreme court shall approve, to the
4 effect that if such order be dismissed or the tax confirmed, the appli-
5 cant for the order will pay all costs and charges which may accrue in
6 the prosecution of the certiorari proceeding.
7 § 11-1011 Remedies exclusive. The remedies provided by section
8 11-1009 of this chapter shall be the exclusive remedies available to any
9 person for the review of tax liability imposed by this chapter; and no
10 determination of tax or determination on an application for refund shall
11 be enjoined or reviewed by an action for declaratory judgment, an action
12 for money had and received or by any legal or equitable action or
13 proceeding other than one under article seventy-eight of the civil prac-
14 tice law and rules.
15 § 11-1012 Reserves. In cases where the taxpayer has paid any tax
16 under written protest stating in detail the ground or grounds therefor,
17 or has applied for a refund and an order under article seventy-eight of
18 the civil practice law and rules to review a determination adverse to
19 the taxpayer on the taxpayer's application for refund, or has deposited
20 the amount of tax assessed in connection with a proceeding under section
21 11-1009 of this chapter the commissioner of finance shall set up appro-
22 priate reserves to meet any decision adverse to the city.
23 § 11-1013 Proceeding to recover tax. a. The commissioner of finance
24 may issue a warrant directed to any officer or employee of the depart-
25 ment of finance commanding him or her to levy upon and sell the real and
26 personal property of the person from whom the tax is due for the payment
27 of the amount thereof, with penalties, and the cost of executing the
28 warrants, and to return such warrant to the commissioner of finance and
29 to pay to him or her the money collected by virtue thereof, and in the
30 execution thereof such officer or employee shall have all the powers
31 conferred by law upon sheriffs, but he or she shall be entitled to no
32 fee or compensation in excess of the actual expenses paid in the
33 performance of such duty. If a warrant is returned not satisfied in
34 full, the commissioner of finance may from time to time issue new
35 warrants and shall also have the same remedies to enforce the amount due
36 pursuant to this section as if the city had recovered judgment therefor
37 and the execution thereon had been returned not satisfied. A copy of
38 any warrant issued may be filed with the county clerk in Richmond county
39 and thereupon such clerk shall enter in the judgment docket the name of
40 the person mentioned in the warrant and the amount of the tax and penal-
41 ty for which the warrant is issued and the date when such copy is filed.
42 Thereupon the amount of such warrant so docketed shall become a lien
43 upon the title to and interest in the real and personal property of the
44 person against whom the warrant is issued.
45 b. As an additional or alternate remedy the commissioner of finance
46 may request the corporation counsel to bring an action in the name of
47 the city to enforce payment of a tax or penalty which any person has
48 failed to pay.
49 c. The commissioner of finance, if he or she finds that the interests
50 of the city will not thereby be jeopardized, and upon such conditions as
51 the commissioner of finance may require, may release any property from
52 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
53 tions to tax, penalties and interest filed pursuant to subdivision a of
54 this section, and such release or vacating of the warrant may be
55 recorded in the office of any recording officer in which such warrant
S. 8578 865
1 has been filed. The clerk shall thereupon cancel and discharge as of the
2 original date of docketing the vacated warrant.
3 § 11-1014 Notices and limitation of time. a. Any notice authorized or
4 required under the provisions of this chapter may be given by mailing
5 the same to the person for whom it is intended in a post paid envelope
6 addressed to such person at the address given in the return filed by
7 such person pursuant to the provisions of this chapter or if no return
8 has been filed then to such address as may be obtainable. The mailing
9 of such notice shall be presumptive evidence of the receipt of the same
10 by the person to whom addressed. Any period of time which is determined
11 according to the provisions of this chapter by the giving of notice
12 shall commence to run from the date of mailing of such notice.
13 b. The provisions of the civil practice law and rules relative to
14 limitations of time for the enforcement of a civil remedy shall not
15 apply to any proceeding or action by the city taken to levy, appraise,
16 assess, determine or enforce the collection of any tax or penalty
17 provided by this chapter.
18 § 11-1015 Penalties and interest. a. Any person failing to file a
19 return or corrected return or to pay any tax or any portion thereof that
20 may be required by this chapter shall be subject to a penalty of five
21 times the amount of the tax due, plus five per centum of such tax for
22 each month of delay or fraction thereof, but the commissioner of
23 finance, if satisfied that the delay was excusable, may remit all or any
24 part of such penalty, but not interest. Penalties shall be paid to the
25 commissioner of finance and disposed of in the manner as other receipts
26 under this chapter. Unpaid penalties may be enforced in the same manner
27 as the tax imposed by this chapter.
28 b. Any person filing or causing to be filed any return, certificate,
29 affidavit or statement required or authorized by this chapter, which is
30 wilfully false and any person who shall fail to file a return or to
31 furnish a statement or other information as required under this chapter,
32 shall be guilty of a misdemeanor, punishment for which shall be a fine
33 of not more than one thousand dollars or imprisonment for not more than
34 one year, or both such fine and imprisonment.
35 A certificate of the commissioner of finance to the effect that a tax
36 has not been paid, that a return has not been filed, or that information
37 has not been supplied pursuant to the provisions of this chapter, shall
38 be prima facie evidence thereof.
39 § 11-1016 General powers of the commissioner of finance. In the
40 administration of this chapter, the commissioner of finance is author-
41 ized to:
42 1. Make and publish reasonable rules and regulations as may be neces-
43 sary for the exercise of the commissioner's powers and the performance
44 of the commissioner's duties under this chapter.
45 2. Assess the tax authorized to be imposed under this chapter.
46 3. Subpoena and require the attendance of witnesses and the production
47 of books, papers and other documents, and to take testimony and proofs,
48 under oath, with reference to any matter within the line of the commis-
49 sioner's official duty under this chapter.
50 4. Delegate the commissioner's functions hereunder to a deputy commis-
51 sioner of finance or other employee or employees of the department of
52 finance.
53 5. Prescribe methods for determining the rental values of premises,
54 the occupant of which is taxable pursuant to the provisions of this
55 chapter.
S. 8578 866
1 6. Require any person who receives or is entitled to receive a consid-
2 eration for the occupation of premises to furnish a statement to the
3 commissioner of finance, upon his or her request, containing information
4 as to the name of each occupant and rental value of each for the occupa-
5 tion of such premises.
6 7. Nothing contained in section 11-1017 of this chapter or in any
7 other provision of this chapter shall be construed to limit the authori-
8 ty of the commissioner of finance, hereby authorized, to furnish any
9 information, whether or not contained in a return, to the tax commission
10 or any other agency or department of the state of New York, or to the
11 treasury department of the United States, or to any agency of the city
12 of Staten Island, or to the district attorney of Richmond county.
13 8. To extend, for cause shown, the time for filing any return for a
14 period not exceeding twenty days.
15 § 11-1017 Returns to be secret. Except in accordance with judicial
16 order, or upon subpoena issued by a court of competent jurisdiction, it
17 shall be unlawful for the commissioner of finance or any officer or
18 employee of the city to divulge or make known in any manner, any infor-
19 mation contained in any return required under this chapter. Nothing in
20 this section shall be construed to prohibit the delivery to a taxpayer
21 of a certified copy of any return filed by the taxpayer, nor to prohibit
22 the publication of statistics so classified as to prevent the identifi-
23 cation of particular returns, or the inspection by the corporation coun-
24 sel of the return to any taxpayer who shall bring action or proceeding
25 to set aside or review the tax based thereon, or against whom an action
26 or proceeding has been instituted or is contemplated for the collection
27 of a tax or penalty. Returns shall be preserved for three years and
28 thereafter until the commissioner of finance orders them to be
29 destroyed.
30 § 11-1018 Disposition of revenue. All revenues and moneys heretofore
31 or hereafter collected resulting from the imposition of taxes and penal-
32 ties imposed by this chapter shall be deposited in the city treasury,
33 and credited to a separate account. During each fiscal year, an amount
34 not in excess of the amount of the subsidies to be made, and the amount
35 of indebtedness incurred for low rent or slum clearance projects to be
36 paid, during such fiscal year shall be charged to such account and cred-
37 ited to the general fund. No other payments shall be charged to such an
38 account. The mayor may contract to make capital or periodic subsidies
39 to the city housing authority in aid of a low rent project, or may incur
40 indebtedness for a low rent slum clearance project, but such periodic
41 subsidies shall not be contracted for a period longer than the life of
42 such project and in no event for more than fifty years. If the amount
43 of any such periodic subsidy shall be equal to or greater than the
44 interest on and the amounts required annually for the payment of the
45 indebtedness contracted by the authority on account of such project in
46 each year, such contract shall constitute a guarantee of the principal
47 of and the interest on such indebtedness, and such contract and the
48 payments thereunder may be pledged by the authority as security in addi-
49 tion to all other security which the authority may give for such bonds.
50 No such contract or periodic subsidies shall be made until the plan for
51 such project shall have been approved in the manner provided by the
52 public housing law.
53 § 11-1019 Application; construction. If any provision of this chapter
54 shall be adjudged by any court of competent jurisdiction to be invalid,
55 such judgment shall not affect, impair or invalidate the remainder ther-
56 eof, but shall be confined in its operation to the provision directly
S. 8578 867
1 involved in the controversy in which such judgment shall have been
2 rendered. This chapter shall be construed in conformity with the public
3 housing law.
4 CHAPTER 11
5 UTILITY TAX
6 § 11-1101 Definitions. When used in this chapter the following terms
7 shall mean or include:
8 1. "Person." Includes any individual, partnership, society, associ-
9 ation, joint-stock company, corporation, estate, receiver, lessee, trus-
10 tee, assignee, assignee of rents, referee, or any other person acting in
11 a fiduciary or representative capacity, whether appointed by a court or
12 otherwise, and any combination of individuals.
13 2. "Comptroller." The comptroller of the city.
14 3. "Commissioner of finance." The commissioner of finance of the
15 city.
16 4. "Gross income." All receipts received in or by reason of any sale
17 made including receipts from the sale of residuals and by-products,
18 except sale of real property, or service rendered in the city, including
19 cash, credits and property of any kind or nature, whether or not such
20 sale is made or such service is rendered for profit, without any
21 deduction therefrom on account of the cost of the property sold, the
22 cost of material used, labor or services, delivery costs, any other
23 costs whatsoever, interest or discount paid, or any other expense what-
24 soever; also profits from the sale of securities; also profits from the
25 sale of real property growing out of the ownership or use of or interest
26 in such property; also profit from the sale of personal property, other
27 than property of a kind which would properly be included in the invento-
28 ry of the taxpayer if on hand at the close of the taxable period for
29 which a return is made; also receipts from interest, dividends and
30 royalties without any deductions therefrom for any expense whatsoever
31 incurred in connection with the receipt thereof, and also gains or
32 profits from any source whatsoever; but shall not include gross income
33 of railroads from the transportation of freight, gross income from the
34 operation of hotels, multiple dwellings or office buildings by persons
35 in the business of operating or leasing sleeping or parlor railroad cars
36 or of operating railroads other than street surface, rapid transit,
37 subway and elevated railroads, or interest or dividends received from a
38 corporation by such persons or by persons subject to taxation under the
39 provisions of section one hundred eighty-six-a of the tax law. Rents or
40 rentals shall not be deemed to be gross receipts subject to tax, except
41 rents or rentals derived from facilities used in the public service;
42 provided, however, that in the case of persons in the business of oper-
43 ating or leasing sleeping or parlor railroad cars or of operating rail-
44 roads other than street surface, rapid transit, subways and elevated
45 railroads, such last-mentioned rents or rentals derived from other such
46 utilities with respect to the operation of terminal facilities shall not
47 be deemed to be gross income subject to tax except for the amount in
48 excess of a user proportion of New York city real property and special
49 franchise taxes and expenses of maintenance and operation. Notwithstand-
50 ing anything to the contrary in this subdivision or any other provision
51 of law, for taxable periods beginning on or after August first, two
52 thousand two, gross income shall include eighty-four percent of charges
53 for the provision of mobile telecommunications services where the place
54 of primary use of the mobile telecommunications services is within the
55 territorial limits of the city except to the extent that such inclusion
S. 8578 868
1 would result in the taxation of charges for the provision of mobile
2 telecommunications services that is prohibited by federal law.
3 5. "Gross operating income." Includes receipts received in or by
4 reason of any sale made or service rendered, of the property and
5 services specified in subdivision seven of this section in the city,
6 including cash, credits and property of any kind or nature, whether or
7 not such sale is made or such service is rendered for profit, without
8 any deduction therefrom on account of the cost of the property sold, the
9 cost of materials used, labor or other services, delivery costs or any
10 other costs whatsoever, interest or discount paid or any other expenses
11 whatsoever, provided however, that if a vendor of utility service
12 purchases gas, electricity, steam, water or refrigeration or gas, elec-
13 tric, steam, water or refrigeration service in a transaction the
14 receipts from which are not subject to the tax imposed under this chap-
15 ter, the gross operating income derived by such vendor of utility
16 service from the resale of such gas, electricity, steam, water or
17 refrigeration or such gas, electric, steam, water or refrigeration
18 service to its tenants as an incident to such vendor's activity of rent-
19 ing premises to tenants, shall, if subject to the tax imposed under this
20 chapter on such vendor, be conclusively presumed to be equal to the
21 amount of such vendor's cost, including any associated transportation
22 cost, for the purchase of such gas, electricity, steam, water or refrig-
23 eration or gas, electric, steam, water or refrigeration service for
24 resale by such vendor. Notwithstanding anything to the contrary in this
25 subdivision or any other provision of law, for taxable periods beginning
26 on or after August first, two thousand two, gross operating income shall
27 include eighty-four percent of charges for the provision of mobile tele-
28 communications services where the place of primary use of the mobile
29 telecommunications services is within the territorial limits of the city
30 except to the extent that such inclusion would result in the taxation of
31 charges for the provision of mobile telecommunications services that is
32 prohibited by federal law.
33 6. "Utility." Every person subject to the supervision of the depart-
34 ment of public service and, for taxable periods beginning on or after
35 August first, two thousand two, every person, whether or not supervised
36 by the department of public service, eighty percent or more of the gross
37 receipts of which consists of charges for the provision of mobile tele-
38 communications services to customers. Notwithstanding anything to the
39 contrary in any other provision of law, for purposes of this subdivi-
40 sion, the gross receipts of a person shall not include the gross
41 receipts of any other related or unrelated person.
42 7. "Vendor of utility services." Every person not subject to the
43 supervision of the department of public service, and not otherwise a
44 utility as defined in subdivision six of this section, who furnishes or
45 sells gas, electricity, steam, water or refrigeration, or furnishes or
46 sells gas, electric, steam, water, refrigeration or telecommunications
47 services, or who operates omnibuses, whether or not such operation is on
48 the public streets; regardless of whether such furnishing, selling or
49 operation constitutes the main activity of such person or is merely
50 incidental thereto.
51 8. "Return." Includes any return filed or required to be filed as
52 provided under this chapter.
53 9. "Telecommunications services." Telephony or telegraphy, or tele-
54 phone or telegraph service, including, but not limited to, any trans-
55 mission of voice image, data, information and paging, through the use of
56 wire, cable, fiber-optic, laser, microwave, radio wave, satellite or
S. 8578 869
1 similar media or any combination thereof and shall include services that
2 are ancillary to the provision of telephone service, such as, but not
3 limited to, dial tone, basic service, directory information, call
4 forwarding, caller-identification, call waiting and the like, and also
5 include any equipment and services provided therewith; provided, howev-
6 er, that the definition of telecommunication services shall not apply to
7 separately stated charges for any service that alters the substantive
8 content of the message received by the recipient from that sent; and
9 that such services shall not include (i) cable television services that
10 consist of the transmitting to subscribers of programs broadcast by one
11 or more television or radio stations or any other programs originated by
12 any person by means of wire, cable, microwave or any other means or (ii)
13 air safety and navigation services where such telecommunication service
14 is provided by an organization, at least ninety percent of which, if a
15 corporation, ninety percent of the voting stock of which, is owned,
16 directly or indirectly, by air carriers, and which organization's prin-
17 cipal function is to fulfill the requirements of (a) the federal
18 aviation administration, or the successor thereto, or (b) the interna-
19 tional civil aviation organization, or the successor thereto, relating
20 to the existence of a communication system between aircraft and
21 dispatcher, aircraft and air traffic control or ground station and
22 ground station, or any combination of such, for the purposes of air
23 safety and navigation.
24 10. "Limited fare omnibus company." An omnibus company whose principal
25 source of revenue is derived from the daily transportation of passengers
26 wholly within the city on a route or zoned portion thereof pursuant to a
27 franchise agreement with, or consent of, the city, at the following
28 fares: for the period from August first, nineteen hundred sixty-five
29 until and including December thirty-first, nineteen hundred seventy-
30 five, at a fare not in excess of thirty-five cents per passenger; for
31 the period from January first, nineteen hundred seventy-six until and
32 including June twenty-seventh, nineteen hundred eighty, at a fare not in
33 excess of fifty cents per passenger; for the period from June twenty-
34 eighth, nineteen hundred eighty until and including August thirty-first,
35 nineteen hundred eighty, at a fare not in excess of sixty cents per
36 passenger; for the period from September first, nineteen hundred eighty
37 and thereafter, at a fare not in excess of the regular rate of fare
38 charged per passenger for comparable service both local and express on
39 regular rapid transit and surface lines operated by the New York city
40 transit authority. For purposes of this subdivision, the term "regular
41 rate of fare" shall be exclusive of fares for special train or bus
42 service, or additional charges for bridge or tunnel tolls or transfer
43 privileges.
44 11. "Commuter service." Mass transportation service, exclusive of
45 limited stop service to airports, racetracks or any place where enter-
46 tainment, amusement or sport activities are held or where recreational
47 facilities are supplied, provided pursuant to a franchise with, or
48 consent of, the city of New York.
49 12. "Tax appeals tribunal." The tax appeals tribunal established by
50 section one hundred sixty-eight of the charter of the preceding munici-
51 pality.
52 13. "Base Year." Means the calendar year ending immediately prior to
53 the calendar year containing the taxable period or periods for which a
54 return is required to be filed pursuant to the provisions of section
55 11-1104 of this chapter.
S. 8578 870
1 14. "Taxable Period." Means the period for which a return is required
2 to be filed pursuant to the provisions of this chapter and shall be
3 either (i) the semiannual period beginning the first day of January or
4 the first day of July of the calendar year, or (ii) the calendar month.
5 15. "Premises." Means for purposes of section 11-1102 of this chapter,
6 any real property or part thereof, and any structure thereon or space
7 therein.
8 16. "Tenant." Means a person paying, or required to pay, rent for
9 premises as a lessee, sublessee, licensee or concessionaire.
10 17. "Mobile telecommunications services." Telecommunications services
11 that are commercial mobile radio services.
12 18. "Commercial mobile radio services." Commercial mobile radio
13 services as defined in section 20.3 of title forty-seven of the Code of
14 Federal Regulations as in effect on June first, nineteen hundred nine-
15 ty-nine.
16 19. "Charges for mobile telecommunications services." Any charge for,
17 or associated with, the provision of mobile telecommunications services
18 and any charge for, or associated with, a service provided as an adjunct
19 to mobile telecommunications services that is billed to the customer by
20 or for the customer's home service provider regardless of whether indi-
21 vidual transmissions originate or terminate within the licensed service
22 area of the home service provider.
23 20. "Place of primary use." The street address representative of where
24 the customer's use of the mobile telecommunications services primarily
25 occurs, which must be (i) the residential street address or the primary
26 business street address of the customer; and (ii) within the licensed
27 service area of the home service provider.
28 21. "Licensed service area." The geographic area in which the home
29 service provider is authorized by law or contract to provide commercial
30 mobile radio services to the customer.
31 22. "Home service provider." The facilities-based carrier or reseller
32 with which the customer contracts for the provision of mobile telecommu-
33 nications services.
34 23. "Customer." The person or entity that contracts with the home
35 service provider for mobile telecommunications services. If the end user
36 of mobile telecommunications services is not the contracting party,
37 then, solely for purposes of subdivision twenty of this section, the
38 term "customer" shall mean the end user of the mobile telecommunications
39 services. The term customer does not include a reseller of mobile tele-
40 communications services, or a serving carrier under an arrangement to
41 serve the customer outside the home service provider's licensed service
42 area.
43 24. "Reseller." A provider who purchases telecommunications services
44 from another telecommunications service provider and then resells, uses
45 as a component part of, or integrates the purchased services into a
46 mobile telecommunications service. The term reseller does not include a
47 serving carrier with which a home service provider arranges for the
48 services to its customers outside the home service provider's licensed
49 service area.
50 25. "Serving carrier." A facilities-based carrier providing mobile
51 telecommunications service to a customer outside a home service provid-
52 er's or reseller's licensed service area.
53 26. "Cogeneration facility" means (i) a facility that was in operation
54 before January first, two thousand four and that produces electric ener-
55 gy and steam or other forms of useful energy, such thermal energy, that
56 are supplied to and used by tenants and/or occupants of a cooperative
S. 8578 871
1 corporation for industrial, commercial, or residential heating or cool-
2 ing purposes; or (ii) a cogeneration facility, as defined in clause (i)
3 of this subparagraph, that has been replaced by any other facility used
4 to generate electricity and steam or other forms of useful energy, such
5 as thermal energy, when such electricity and steam or other forms of
6 useful energy, such as thermal energy, are supplied to and used by
7 tenants and/or occupants of a cooperative corporation.
8 27. "Enhanced zip code." A United States postal zip code of nine or
9 more digits.
10 28. "Cooperative corporation" means a corporation organized under the
11 laws of New York, at least some of the stockholders of which are enti-
12 tled, by reason of the stockholders' ownership interest of stock in the
13 corporation, to occupy for dwelling purposes an apartment in a building
14 owned by the corporation pursuant to a lease or occupancy agreement with
15 the corporation.
16 § 11-1102 Imposition of excise tax. a. Notwithstanding any other
17 provisions of law to the contrary, for the privilege of exercising its
18 franchise or franchises, or of holding property, or of doing business in
19 the city, on or after August first, nineteen hundred sixty-five, every
20 utility shall pay to the commissioner of finance an excise tax which
21 shall be equal to two per centum of its gross income until and including
22 December thirty-first, nineteen hundred sixty-five, and shall be equal
23 to two and thirty-five hundredths per centum thereafter, except that the
24 rate as to persons engaged in the business of operating omnibuses with a
25 carrying capacity of more than seven persons shall be one per centum
26 until and including December thirty-first, nineteen hundred sixty-five,
27 and one and seventeen hundredths per centum thereafter, and except that
28 as to persons engaged in the business of operating or leasing sleeping
29 and parlor railroad cars or of operating railroads other than street
30 surface, rapid transit, subway and elevated railroads, the rate shall be
31 three per centum until and including December thirty-first, nineteen
32 hundred sixty-five, and three and fifty-two one hundredths per centum
33 thereafter, and every vendor of utility services in the city shall pay
34 to the commissioner of finance an excise tax which shall be equal to two
35 per centum of its gross operating income until and including December
36 thirty-first, nineteen hundred sixty-five, and shall be equal to two and
37 thirty-five one hundredths per centum thereafter, except that as to
38 persons engaged in the business of operating omnibuses with a carrying
39 capacity of more than seven persons other than omnibuses used exclu-
40 sively for the transportation of children to and from schools operated
41 under contracts made pursuant to the provisions of the education law,
42 and not subject to the jurisdiction of the department of public service,
43 the rate shall be one per centum of its gross operating income until and
44 including December thirty-first, nineteen hundred sixty-five, and one
45 and seventeen hundredths per centum thereafter. Such tax shall be in
46 addition to any and all other taxes, charges and fees imposed by any
47 other provision of law and shall be paid at the time and in the manner
48 provided in this section, but any person to the extent that it is
49 subject to tax pursuant to this section shall not be liable to any tax
50 under any other of the local laws of the preceding municipality as it
51 existed January first, nineteen hundred ninety-four enacted pursuant to
52 chapter ninety-three of the laws of nineteen hundred sixty-five as
53 amended, or the former article two-b of the general city law, with
54 respect to its gross income or gross operating income taxed pursuant to
55 this section, as the case may be.
S. 8578 872
1 b. So much of the gross income of a utility shall be excluded from the
2 measure of the tax imposed by this chapter, as is derived from sales for
3 resale to vendors of utility services validly subject to the tax imposed
4 by this chapter, except to the extent that such gross income is derived
5 from sales of gas, electricity, steam, water or refrigeration or sales
6 or rendering of gas, electric, steam, water or refrigeration service to
7 a vendor of utility services for resale to its tenants as an incident to
8 such vendor's activity of renting premises to tenants.
9 c. For the purpose of proper administration of this chapter and to
10 prevent evasion of the tax imposed by this section, it shall be presumed
11 that the gross income or gross operating income of any person taxable
12 pursuant to this section is taxable and is derived from business
13 conducted wholly within the territorial limits of the city until the
14 contrary is established, and the burden of proving that any part of its
15 gross income or gross operating income is not so derived shall be upon
16 such person. Notwithstanding anything to the contrary in this subdivi-
17 sion or in any provision of section twenty-b of the general city law or
18 any other provision of law, for taxable periods beginning on or after
19 August first, two thousand two, gross income and gross operating income
20 derived from the provision of mobile telecommunications services shall
21 be deemed to be derived from business conducted wholly within the terri-
22 torial limits of the city where the place of primary use of the mobile
23 telecommunications services is within the territorial limits of the
24 city.
25 d. The tax imposed by this chapter shall be inapplicable to the gross
26 income received by a limited fare omnibus company until and including
27 August thirty-first, nineteen hundred eighty. Thereafter, such tax shall
28 be applicable to such gross income received as follows: (1) for gross
29 income received from commuter service from September first, nineteen
30 hundred eighty until and including December thirty-first, nineteen
31 hundred eighty-three, the rate of tax shall be one hundredth of one per
32 centum; (2) for gross income received from commuter service from January
33 first, nineteen hundred eighty-four and thereafter, the rate of tax
34 shall be one tenth of one per centum; and (3) for gross income received
35 from all other sources, the rate of tax shall be as provided in subdivi-
36 sion a of this section.
37 e. The gross operating income of a vendor of utility services derived
38 from sales to its tenants of gas, electricity, steam, water, or refrig-
39 eration or sales or rendering to its tenants of gas, electric, steam,
40 water or refrigeration service, as an incident to such vendor's activity
41 of renting premises to tenants, shall be excluded from the measure of
42 the tax imposed by this chapter, but, with regard to sales to its
43 tenants of gas, electricity, or steam or sales or rendering to its
44 tenants of gas, electric or steam service, only to the extent that the
45 tax imposed by this chapter has been validly paid or accrued with
46 respect to a prior sale of such gas, electricity or steam or sale or
47 rendering of gas, electric or steam service.
48 f. (1) Notwithstanding anything contained in this chapter to the
49 contrary, for taxable periods beginning on or after August first, two
50 thousand two, if a partnership is subject to the tax imposed by this
51 chapter as a utility or as a vendor of utility services, no person who
52 is a partner in such a partnership shall be subject to the tax imposed
53 by this chapter on such partner's distributive share of the gross income
54 or gross operating income of such partnership.
55 (2) If a person is a partner in a partnership subject to the tax
56 imposed by this chapter and that person is separately subject to the
S. 8578 873
1 supervision of the state department of public service or is a utility or
2 a vendor of utility services based on its activities exclusive of any
3 activities of such partnership, for taxable periods beginning on or
4 after August first, two thousand two, such person shall be subject to
5 the tax imposed by this chapter only on its separate gross income or
6 separate gross operating income, which shall not include such person's
7 distributive share of the gross income or gross operating income of such
8 partnership.
9 (3) For purposes of this subdivision, the term "partner" shall include
10 a person who receives a distributive share of the gross income or gross
11 operating income, directly or indirectly through one or more tiers of
12 partnerships, of a partnership subject to the tax imposed by this chap-
13 ter.
14 g. Notwithstanding anything else contained in this chapter to the
15 contrary, for the taxable periods beginning on or after January first,
16 two thousand six, if a cooperative corporation containing at least
17 fifteen hundred apartments furnishes or sells electricity, steam,
18 refrigeration or water, or furnishes or sells electric, steam, refriger-
19 ation or water services that are (i) metered, (ii) generated or produced
20 by a cogeneration facility owned or operated by such cooperative corpo-
21 ration, and (iii) such electricity, steam, refrigeration or water and/or
22 electric, steam, refrigeration or water services are distributed to
23 tenants and/or occupants of a cooperative corporation, then such cooper-
24 ative corporation shall pay to the commissioner of finance an excise tax
25 which shall be equal to zero per centum of its gross income or its gross
26 operating income, as the case may be.
27 § 11-1103 Records to be kept. Every person subject to tax pursuant to
28 this chapter shall keep records of its business and in such form as the
29 commissioner of finance may by regulation require. Such records shall
30 be offered for inspection and examination at any time upon demand by
31 such commissioner or his or her duly authorized agent or employee and
32 shall be preserved for a period of three years, except that the commis-
33 sioner of finance may consent to their destruction within that period or
34 may require that they be kept longer.
35 § 11-1104 Returns; requirements as to. a. Except as otherwise
36 provided in subdivision e of this section with respect to taxable peri-
37 ods beginning after nineteen hundred ninety-eight, on or before the
38 twenty-fifth day of September, nineteen hundred sixty-five, and on or
39 before the twenty-fifth day of every month thereafter, every person
40 subject to tax pursuant to this chapter shall file a return with the
41 commissioner of finance on a form to be prescribed by such commissioner.
42 Such return shall state the gross income or gross operating income as
43 the case may be for the preceding calendar month, and shall contain any
44 other data, information or other matter which the commissioner of
45 finance may require to be included therein. The commissioner of finance
46 may require at any further time a supplemental return, which shall
47 contain any data upon such matters as such commissioner may specify.
48 Notwithstanding the provisions of this subdivision and notwithstanding
49 the provisions of subdivision e of this section, a vendor of utility
50 services, all of whose gross operating income is excluded from the meas-
51 ure of the tax imposed by this chapter pursuant to subdivision e of
52 section 11-1102 of this chapter during any taxable period, shall not be
53 required to file a return for such taxable period, provided, however,
54 that on or before the first day of September of each year, any such
55 vendor of utility services who was not required to file a return for any
56 taxable period during the period covered by the statement required to be
S. 8578 874
1 filed by such date pursuant to subdivision a of section 11-208.1 of this
2 title shall file an information return covering such period in such form
3 and containing such information as the commissioner of finance may spec-
4 ify.
5 b. The commissioner of finance may require amended returns to be filed
6 within twenty days after notice and to contain the information specified
7 in the notice.
8 c. If a return required by this chapter is not filed or if a return
9 when filed is incorrect or insufficient on its face, the commissioner of
10 finance shall take the necessary steps to enforce the filing of such
11 return or of a corrected return.
12 d. Where the state tax commission changes or corrects a taxpayer's
13 sales and compensating use tax liability with respect to the purchase or
14 use of items for which a sales or compensating use tax credit against
15 the tax imposed by this chapter was claimed, the taxpayer shall report
16 such change or correction to the commissioner of finance within ninety
17 days of the final determination of such change or correction, or as
18 required by the commissioner of finance, and shall concede the accuracy
19 of such determination or state wherein it is erroneous. Any taxpayer
20 filing an amended return or report with the state tax commission relat-
21 ing to the purchase or use of such items shall also file within ninety
22 days thereafter a copy of such amended return or report with the commis-
23 sioner of finance.
24 e. With respect to taxable periods beginning after nineteen hundred
25 ninety-eight, notwithstanding the provisions of subdivision a of this
26 section, if the amount of tax imposed pursuant to this section on any
27 person in the base year does not exceed one hundred thousand dollars,
28 the taxable period for which such person is required to file a return is
29 the semiannual period described in paragraph i of subdivision fourteen
30 of section 11-1101 of this chapter, and such person shall file a return
31 for each semiannual period of the first calendar year beginning after
32 the base year on or before the twenty-fifth day of the month following
33 the end of each such taxable period. Such return shall be filed with the
34 commissioner of finance on a form to be prescribed by such commissioner.
35 Such return shall state the gross income or gross operating income as
36 the case may be for the preceding taxable period and shall contain any
37 other data, information or other matter which the commissioner of
38 finance may require to be included therein. The commissioner of finance
39 may require at any further time a supplemental return, which shall
40 contain any data upon such matters as such commissioner may specify. For
41 the purposes of this subdivision, if the amount of tax imposed pursuant
42 to this chapter on such person in the base year is for a period of less
43 than one year, the amount of tax imposed on such person shall be annual-
44 ized by multiplying the amount of tax imposed by a fraction, the denomi-
45 nator of which is the number of months or parts thereof during which the
46 person was subject to the tax imposed pursuant to this chapter and the
47 numerator of which is twelve. Notwithstanding the provisions of this
48 subdivision, a person that first becomes subject to the tax pursuant to
49 this chapter shall file a return for each month in the calendar year in
50 which such person first becomes subject to such tax in accordance with
51 subdivision a of this section.
52 § 11-1105 Payment of tax; credit for certain sales and compensating
53 use taxes. a. At the time of filing each return, as provided under
54 section 11-1104 of this chapter, each person taxable pursuant to this
55 chapter shall pay to the commissioner of finance the taxes imposed by
56 this chapter upon its gross income or gross operating income, as the
S. 8578 875
1 case may be, for the taxable period covered by such return, less any
2 credit to which such person may be entitled under subdivision b of this
3 section. Such taxes shall be due and payable on the last day on which
4 the return for such period is required to be filed, regardless of wheth-
5 er a return is filed or whether the return which is filed correctly
6 indicates the amount of tax due.
7 b. (1) A taxpayer shall be allowed a credit against the taxes imposed
8 by this chapter for the amount of sales and compensating use taxes
9 imposed by section eleven hundred seven of the tax law which became
10 legally due on or after, and which were paid on or after, July first,
11 nineteen hundred seventy-seven but within the taxable period for which a
12 credit is claimed, with respect to the purchase or use by the taxpayer
13 of machinery or equipment for use or consumption directly and predomi-
14 nantly in the production of steam for sale, by manufacturing, process-
15 ing, generating, assembling, refining, mining or extracting, or tele-
16 phone central office equipment or station apparatus or comparable
17 telegraph equipment for use directly and predominantly in receiving at
18 destination or initiating and switching telephone or telegraph communi-
19 cation, but not including parts with a useful life of one year or less
20 or tools or supplies used in connection with such machinery, equipment
21 or apparatus.
22 (2) The amount of the credit provided in paragraph one of this subdi-
23 vision shall be limited to the amount of such sales and compensating use
24 taxes paid during the taxable period covered by the return under this
25 chapter on which the credit is taken less the amount of any credit or
26 refund of such sales and compensating use taxes during such taxable
27 period. If such credit exceeds the amount of tax under this chapter
28 payable for the taxable period in question, such excess amount shall be
29 refunded or credited except in the case of a vendor of utility services
30 who is entitled to a credit and/or refund for such sales and compensat-
31 ing use taxes under chapter five or six of this title. The credit
32 allowed under this subdivision shall be deemed an erroneous payment of
33 tax by the taxpayer to be credited or refunded in accordance with the
34 provisions of section 11-1108 of this chapter, except as otherwise
35 provided in this paragraph.
36 (3) Where the taxpayer receives a refund or credit of any tax imposed
37 under section eleven hundred seven of the tax law for which the taxpayer
38 has claimed a credit under the provisions of this subdivision in a prior
39 taxable period, the amount of such refund or credit shall be added to
40 the tax imposed by section 11-1102 of this chapter of the taxable period
41 in which such refund or credit of tax under section eleven hundred seven
42 of the tax law is received.
43 § 11-1105.1 Credit for rebates of charges for energy. A taxpayer shall
44 be allowed a credit against the amount of taxes imposed by this chapter
45 for the amount of special rebates and discounts made in accordance with
46 the provisions of section 22-602 of the code of the preceding munici-
47 pality and for the amount of special rebates and discounts made in
48 accordance with the provisions of section twenty-five-bb of the general
49 city law. Such credit shall be applied against the amount of tax other-
50 wise required to be paid as provided in subdivision a of section 11-1105
51 of this chapter and shall be claimed for the taxable period immediately
52 succeeding the taxable period in which such rebates or discounts are
53 made.
54 § 11-1105.2 Relocation and employment assistance program credit. (a) A
55 taxpayer that has obtained the certifications required by chapter six-B
56 of title twenty-two of the code of the preceding municipality shall be
S. 8578 876
1 allowed a credit against the tax imposed by this chapter, provided,
2 however, that a taxpayer that is a vendor of utility services shall not
3 be allowed the credit against the tax imposed by this chapter unless it
4 elects as provided in subdivision (d) of section 22-622 of the code of
5 the preceding municipality to take the credit against the tax imposed by
6 this chapter. The amount of the credit shall be the amount determined by
7 multiplying one thousand dollars or, in the case of an eligible business
8 that has obtained pursuant to chapter six-B of such title twenty-two a
9 certification of eligibility dated on or after July first, two thousand,
10 for a relocation to eligible premises located within a revitalization
11 area defined in subdivision (n) of section 22-621 of the code of the
12 preceding municipality, three thousand dollars, by the number of eligi-
13 ble aggregate employment shares maintained by the taxpayer during the
14 calendar year with respect to particular premises to which the taxpayer
15 has relocated; provided, however, with respect to a relocation for which
16 no application for a certificate of eligibility is submitted prior to
17 July first, two thousand three, to eligible premises that are within a
18 revitalization area, if the date of such relocation as determined pursu-
19 ant to subdivision (j) of section 22-621 of the code of the preceding
20 municipality is on or after January first, nineteen hundred ninety-nine,
21 and before July first, two thousand, the amount to be multiplied by the
22 number of eligible aggregate employment shares shall be one thousand
23 dollars; provided, however, that no credit shall be allowed for the
24 relocation of any retail activity or hotel services; and provided that
25 in the case of an eligible business that has obtained pursuant to chap-
26 ter six-B of such title twenty-two certifications of eligibility for
27 more than one relocation, the portion of the total amount of eligible
28 aggregate employment shares to be multiplied by the dollar amount speci-
29 fied in this subdivision for each such certification of a relocation
30 shall be the number of total attributed eligible aggregate employment
31 shares determined with respect to such relocation pursuant to subdivi-
32 sion (o) of section 22-621 of the code of the preceding municipality.
33 For purposes of this subdivision, the terms "eligible aggregate employ-
34 ment shares", "relocate", "retail activity" and "hotel services" shall
35 have the meanings ascribed by section 22-621 of the code of the preced-
36 ing municipality.
37 (b) The credit allowed under this subdivision with respect to eligible
38 aggregate employment shares maintained with respect to particular prem-
39 ises to which the taxpayer has relocated shall be allowed for the taxa-
40 ble periods in the first calendar year during which such eligible aggre-
41 gate employment shares are maintained with respect to such premises and
42 for taxable periods in any of the twelve succeeding calendar years
43 during which eligible aggregate employment shares are maintained with
44 respect to such premises, provided that the credit allowed for the taxa-
45 ble periods in the twelfth succeeding calendar year shall be calculated
46 by multiplying the number of eligible aggregate employment shares main-
47 tained with respect to such premises in the twelfth succeeding calendar
48 year by the lesser of one and a fraction the numerator of which is the
49 number of days in the calendar year of relocation less the number of
50 days the eligible business maintained employment shares in the eligible
51 premises in the calendar year of relocation and the denominator of which
52 is the number of days in such twelfth succeeding year during which such
53 eligible aggregate employment shares are maintained with respect to such
54 premises. The credit allowable under this section shall be applied
55 against the amount of tax otherwise required to be paid for the last
56 taxable period of the calendar year as provided in subdivision a of
S. 8578 877
1 section 11-1105 of this chapter, shall be deducted from the taxpayer's
2 tax prior to the deduction of the credit provided in subdivision b of
3 such section, and shall be claimed on the tax return for the last taxa-
4 ble period of the calendar year. Except as provided in subdivision (c)
5 of this section, if the amount of the credit allowable under this subdi-
6 vision for any calendar year exceeds the tax imposed for such last taxa-
7 ble period in such calendar year, the excess may be carried over, in
8 order, to the immediately succeeding taxable periods in the five imme-
9 diately succeeding calendar years and, to the extent not previously
10 allowable, shall be applied against the tax otherwise required to be
11 paid for such periods. Such carryover credit shall be deducted from the
12 taxpayer's tax prior to the deduction of the credit provided in subdivi-
13 sion b of section 11-1105 of this chapter. With respect to the last
14 taxable period in a calendar year, the credit for such calendar year
15 shall be taken prior to any carryover credit. If in any period there are
16 carryover credits available from more than one year, such credits shall
17 be applied against the tax in the order in which they were earned with
18 the oldest available credit being taken first.
19 (c) In the case of a taxpayer that has obtained a certification of
20 eligibility pursuant to chapter six-B of title twenty-two of the code of
21 the preceding municipality dated on or after July first, two thousand
22 for a relocation to eligible premises located within the revitalization
23 area defined in subdivision (n) of section 22-621 of the code of the
24 preceding municipality, the credits allowed under this section, or in
25 the case of a taxpayer that has relocated more than once, the portion of
26 such credits attributed to such certification of eligibility pursuant to
27 subdivision (a) of this section, against the tax imposed by this chapter
28 for the calendar year of such relocation and for the four calendar years
29 immediately succeeding the calendar year of such relocation, shall be
30 deemed to be erroneous payments of tax by the taxpayer to be credited or
31 refunded, in accordance with the provisions of section 11-1108 of this
32 chapter. For such calendar years, such credits or portions thereof may
33 not be carried over to any succeeding taxable year; provided, however,
34 that this subdivision shall not apply to any relocation for which an
35 application for a certification of eligibility was not submitted prior
36 to July first, two thousand three unless the date of such relocation is
37 on or after July first, two thousand.
38 § 11-1105.3 Lower Manhattan relocation employment assistance credit.
39 (a) A taxpayer that has obtained the certifications required by chapter
40 six-C of title twenty-two of the code of the preceding municipality
41 shall be allowed a credit against the tax imposed by this chapter,
42 provided, however, that a taxpayer that is a vendor of utility services
43 shall not be allowed the credit against the tax imposed by this chapter
44 unless it elects as provided in subdivision (d) of section 22-624 of the
45 code of the preceding municipality to take the credit against the tax
46 imposed by this chapter. The amount of the credit shall be the amount
47 determined by multiplying three thousand dollars by the number of eligi-
48 ble aggregate employment shares maintained by the taxpayer during the
49 calendar year with respect to eligible premises to which the taxpayer
50 has relocated; provided, however, that no credit shall be allowed for
51 the relocation of any retail activity or hotel services. For purposes of
52 this subdivision, the terms "eligible aggregate employment shares",
53 "eligible premises", "relocate", "retail activity" and "hotel services"
54 shall have the meanings ascribed by section 22-623 of the code of the
55 preceding municipality.
S. 8578 878
1 (b) The credit allowed under this section with respect to eligible
2 aggregate employment shares maintained with respect to eligible premises
3 to which the taxpayer has relocated shall be allowed for the taxable
4 period in which the relocation to eligible premises takes place and for
5 succeeding taxable periods in the calendar year of the relocation and in
6 any of the twelve succeeding calendar years during which eligible aggre-
7 gate employment shares are maintained with respect to eligible premises,
8 provided that the credit allowed for the taxable periods in the twelfth
9 succeeding calendar year shall be calculated by multiplying the number
10 of eligible aggregate employment shares maintained with respect to
11 eligible premises in the twelfth succeeding calendar year by the lesser
12 of one and a fraction the numerator of which is the number of days in
13 the calendar year of relocation less the number of days the taxpayer
14 maintained employment shares in eligible premises in the calendar year
15 of relocation and the denominator of which is the number of days in such
16 twelfth succeeding calendar year during which such eligible aggregate
17 employment shares are maintained with respect to such premises. The
18 credit allowable under this section shall be applied against the amount
19 of tax otherwise required to be paid for the last taxable period of the
20 calendar year as provided in subdivision a of section 11-1105 of this
21 chapter, shall be deducted from the taxpayer's tax prior to the
22 deduction of the credit provided in subdivision b of such section but
23 after the credit provided for in section 11-1105.2 of this chapter, and
24 shall be claimed on the tax return for the last taxable period of the
25 calendar year. Except as provided in subdivision (c) of this section, if
26 the amount of the credit allowable under this subdivision for any calen-
27 dar year exceeds the tax imposed for such last taxable period in such
28 calendar year, the excess may be carried over, in order, to the imme-
29 diately succeeding taxable periods in the five immediately succeeding
30 calendar years and, to the extent not previously allowable, shall be
31 applied against the tax otherwise required to be paid for such periods.
32 Such carryover credit shall be deducted from the taxpayer's tax prior to
33 the deduction of the credit provided in subdivision b of section 11-1105
34 of this chapter but after the credit provided for in section 11-1105.2
35 of this chapter. With respect to the last taxable period in a calendar
36 year, the credit for such calendar year shall be taken prior to any
37 carryover credit. If in any period there are carryover credits available
38 from more than one year, such credits shall be applied against the tax
39 in the order in which they were earned with the oldest available credit
40 being taken first.
41 (c) The credits allowed under this section, against the tax imposed by
42 this chapter for the calendar year of the relocation and for the four
43 taxable years immediately succeeding the calendar year of such relo-
44 cation, shall be deemed to be overpayments of tax by the taxpayer to be
45 credited or refunded, without interest, in accordance with the
46 provisions of section 11-1108 of this chapter. For such calendar years,
47 such credits or portions thereof may not be carried over to any succeed-
48 ing calendar year.
49 § 11-1106 Determination of tax. In case the return required by this
50 chapter shall be insufficient or unsatisfactory or if such return is not
51 filed, the commissioner of finance shall determine the amount of the tax
52 due from such information as is obtainable, and if necessary the tax may
53 be estimated upon the basis of external indices. Notice of such determi-
54 nation shall be given to the person liable for the payment of the tax.
55 Such determination shall finally and irrevocably fix such tax unless the
56 person against whom it is assessed, within ninety days after the giving
S. 8578 879
1 of notice of such determination or, if the commissioner of finance has
2 established a conciliation procedure pursuant to section 11-124 of this
3 title and the taxpayer has requested a conciliation conference in
4 accordance therewith, within ninety days from the mailing of a concil-
5 iation decision or the date of the commissioner's confirmation of the
6 discontinuance of the conciliation proceeding, both (1) serves a peti-
7 tion upon the commissioner of finance and (2) files a petition with the
8 tax appeals tribunal for a hearing, or unless such commissioner of his
9 or her own motion shall redetermine the same. Such hearing and any
10 appeal to the tax appeals tribunal sitting en banc from the decision
11 rendered in such hearing shall be conducted in the manner and subject to
12 the requirements prescribed by the tax appeals tribunal pursuant to
13 sections one hundred sixty-eight through one hundred seventy-two of the
14 charter of the preceding municipality as it existed January first, nine-
15 teen hundred ninety-four. After such hearing the tax appeals tribunal
16 shall give notice of its decision to the person against whom the tax is
17 assessed and to the commissioner of finance. A decision of the tax
18 appeals tribunal sitting en banc shall be reviewable for error, illegal-
19 ity, unconstitutionality or any other reason whatsoever by a proceeding
20 under article seventy-eight of the civil practice law and rules if
21 instituted by the person against whom the tax was assessed within four
22 months after the giving of the notice of such tax appeals tribunal deci-
23 sion. A proceeding under such article of such law and rules shall not be
24 instituted by a taxpayer unless (a) the amount of any tax sought to be
25 reviewed with penalties and interest thereon, if any, shall first be
26 deposited with the commissioner of finance and there shall be filed with
27 such commissioner an undertaking, issued by a surety company authorized
28 to transact business in this state and approved by the superintendent of
29 insurance of this state as to solvency and responsibility, in such
30 amount and with such sureties as a justice of the supreme court shall
31 approve, to the effect that if such proceeding be dismissed or the tax
32 confirmed, the taxpayer will pay all costs and charges which may accrue
33 in the prosecution of the proceeding, or (b) at the option of the
34 taxpayer such undertaking filed with the commissioner of finance may be
35 in a sum sufficient to cover the taxes, penalties and interest thereon
36 stated in such decision, plus the costs and charges which may accrue
37 against it in the prosecution of the proceeding, in which event the
38 taxpayer shall not be required to deposit such taxes, penalties and
39 interest as a condition precedent to the application.
40 § 11-1107 Assessment of tax where change or correction of sales and
41 compensating use tax liability involved. a. If a taxpayer fails to
42 comply with subdivision d of section 11-1104 of this chapter in not
43 reporting a change or correction of its sales and compensating use tax
44 liability or in not filing a copy of an amended return or report relat-
45 ing to its sales and compensating use tax liability, instead of the mode
46 and time of assessment provided for in section 11-1106 of this chapter,
47 the commissioner of finance may assess a deficiency based upon such
48 changed or corrected sales and compensating use tax liability, as same
49 relates to credits claimed under this chapter, by mailing to the taxpay-
50 er a notice of additional tax due specifying the amount of the deficien-
51 cy, and such deficiency, together with the interest and penalties stated
52 in such notice, shall be deemed assessed on the date such notice is
53 mailed unless within thirty days after the mailing of such notice a
54 report of the state change or correction or a copy of an amended return
55 or report, where such copy was required, is filed accompanied by a
56 statement showing wherein such state determination and such notice of
S. 8578 880
1 additional tax due are erroneous. Such notice shall not be considered as
2 a notice of determination for the purposes of section 11-1106 of this
3 chapter.
4 b. If a report filed pursuant to subdivision d of section 11-1104 of
5 this chapter concedes the accuracy of a state change or correction of
6 sales and compensating use tax liability, any deficiency in tax result-
7 ing therefor shall be deemed assessed on the date of filing such report.
8 § 11-1108 Refunds. a. In the manner provided in this section the
9 commissioner of finance shall refund or credit, without interest, any
10 tax, penalty or interest erroneously, illegally or unconstitutionally
11 collected or paid, if application for such refund shall be made to the
12 commissioner of finance within three years from the time the return was
13 filed or two years from the time the tax was paid, whichever of such
14 periods expires later, or if no return was filed, within two years from
15 the time the tax was paid. If the claim is filed within the three-year
16 period, the amount of the credit or refund shall not exceed the portion
17 of the tax paid within the three years immediately preceding the filing
18 of the claim plus the period of any extension of time for filing the
19 return. Whenever a refund or credit is made or denied by the commission-
20 er of finance, he or she shall state his or her reason therefor and give
21 notice thereof to the taxpayer in writing. The commissioner of finance
22 may, in lieu of any refund required to be made, allow credit therefor on
23 payments due from the applicant.
24 b. Any determination of the commissioner of finance denying a refund
25 or credit pursuant to subdivision a of this section shall be final and
26 irrevocable unless the applicant for such refund or credit, within nine-
27 ty days from the mailing of notice of such determination, or, if the
28 commissioner of finance has established a conciliation procedure pursu-
29 ant to section 11-124 of this title and the applicant has requested a
30 conciliation conference in accordance therewith, within ninety days from
31 the mailing of a conciliation decision or the date of the commissioner's
32 confirmation of the discontinuance of the conciliation proceeding, both
33 (1) serves a petition upon the commissioner of finance and (2) files a
34 petition with the tax appeals tribunal for a hearing. Such petition for
35 a refund or credit, made as provided in this section, shall be deemed an
36 application for a revision of any tax, penalty or interest complained
37 of. Such hearing and any appeal to the tax appeals tribunal sitting en
38 banc from the decision rendered in such hearing shall be conducted in
39 the manner and subject to the requirements prescribed by the tax appeals
40 tribunal pursuant to sections one hundred sixty-eight through one
41 hundred seventy-two of the charter of the preceding municipality as it
42 existed January first, nineteen hundred ninety-four. After such hearing,
43 the tax appeals tribunal shall give notice of its decision to the appli-
44 cant and to the commissioner of finance. The applicant shall be entitled
45 to institute a proceeding under article seventy-eight of the civil prac-
46 tice law and rules to review a decision of the tax appeals tribunal
47 sitting en banc if application to the supreme court be made therefor
48 within four months after the giving of notice of such decision, and
49 provided, in the case of an application by a taxpayer, a final determi-
50 nation of tax due was not previously made.
51 c. If a taxpayer is required by subdivision d of section 11-1104 of
52 this chapter to file a report or amended return in respect of a change
53 or correction of its sales and compensating use tax liability, claim for
54 credit or refund of any resulting overpayment of tax shall be filed by
55 the taxpayer within one year from the time such report or amended return
56 was required to be filed with the commissioner of finance. This subdivi-
S. 8578 881
1 sion shall not affect the time within which or the amount for which a
2 claim for credit or refund may be filed apart from this subdivision.
3 d. A person shall not be entitled to a revision, refund or credit
4 under this section of a tax, interest or penalty which had been deter-
5 mined to be due pursuant to the provisions of section 11-1106 or 11-1107
6 of this chapter where he or she has had a hearing or an opportunity for
7 a hearing, as provided in such sections, or has failed to avail himself
8 or herself of the remedies therein provided. No refund or credit shall
9 be made of a tax, interest or penalty paid after a determination by the
10 commissioner of finance made pursuant to section 11-1106 or 11-1107 of
11 this chapter unless it be found that such determination was erroneous,
12 illegal or unconstitutional or otherwise improper, by the tax appeals
13 tribunal after a hearing or of the commissioner of finance's own motion
14 or, if such tax appeals tribunal affirms in whole or in part the deter-
15 mination of the commissioner of finance, in a proceeding under article
16 seventy-eight of the civil practice law and rules pursuant to the
17 provisions of said section, in which event refund or credit without
18 interest shall be made of the tax, interest or penalty found to have
19 been overpaid.
20 § 11-1109 Reserves. In cases where the taxpayer has applied for a
21 refund and has instituted a proceeding under article seventy-eight of
22 the civil practice law and rules to review a determination adverse to
23 him or her on his or her application for refund, the comptroller shall
24 set up appropriate reserves to meet any decision adverse to the city.
25 § 11-1110 Remedies exclusive. The remedies provided by this chapter
26 shall be the exclusive remedies available to any person for the review
27 of tax liability imposed by this chapter; and no determination or
28 proposed determination of tax or determination on any application for
29 refund by the commissioner of finance, nor any decision by the tax
30 appeals tribunal or any of its administrative law judges, shall be
31 enjoined or reviewed by an action for declaratory judgment, an action
32 for money had and received or by any action or proceeding other than, in
33 the case of a decision by the tax appeals tribunal sitting en banc, a
34 proceeding under article seventy-eight of the civil practice law and
35 rules; provided, however, that a taxpayer may proceed by a declaratory
36 judgment if he or she institutes suit within thirty days after a defi-
37 ciency assessment is made and pays the amount of the deficiency assess-
38 ment to the commissioner of finance prior to the institution of such
39 suit and posts a bond for costs as provided in section 11-1106 of this
40 chapter.
41 § 11-1111 Proceedings to recover tax. a. Whenever any person shall
42 fail to pay any tax or penalty or interest imposed by this chapter as
43 provided in this section, the corporation counsel shall, upon the
44 request of the commissioner of finance, bring or cause to be brought an
45 action to enforce payment of the same against the person liable for the
46 same on behalf of the city of Staten Island in any court of the state of
47 New York or of any other state or of the United States. If, however,
48 such commissioner in his or her discretion believes that a taxpayer
49 subject to the provisions of this chapter is about to cease business,
50 leave the state or remove or dissipate the assets out of which tax or
51 penalties might be satisfied and that any such tax or penalty will not
52 be paid when due, he or she may declare such tax or penalty to be imme-
53 diately due and payable and may issue a warrant immediately.
54 b. As a further additional or alternate remedy, the commissioner of
55 finance may issue a warrant, directed to the city sheriff, commanding
56 him or her to levy upon and sell the real and personal property of such
S. 8578 882
1 person which may be found within the city, for the payment of the amount
2 thereof, with any penalties and the cost of executing the warrant and to
3 return such warrant to such commissioner and to pay to him or her the
4 money collected by virtue thereof within sixty days after the receipt of
5 such warrant. The city sheriff shall, within five days after the
6 receipt of the warrant, file with the county clerk a copy thereof and
7 thereupon such clerk shall enter in the judgment docket the name of the
8 person mentioned in the warrant and the amount of the tax and penalties
9 for which the warrant is issued and the date when such copy is filed.
10 Thereupon the amount of such warrant so docketed shall have the full
11 force and effect of a judgment and shall become a lien upon the title to
12 and interest in real and personal property of the person against whom
13 the warrant is issued. The city sheriff shall then proceed upon the
14 warrant in the same manner and with like effect as that provided by law
15 in respect to executions against property upon judgments of a court of
16 record, and for services in executing the warrant he or she shall be
17 entitled to the same fees which he or she may collect in the same
18 manner. In the discretion of the commissioner of finance a warrant of
19 like terms, force and effect may be issued and directed to any officer
20 or employee of the department of finance and in the execution thereof
21 such officer or employee shall have all the power conferred by law upon
22 sheriffs, but he or she shall be entitled to no fee or compensation in
23 excess of the actual expenses paid in the performance of such duty. If
24 a warrant is returned not satisfied in full, the commissioner of finance
25 may from time to time issue new warrants and shall also have the same
26 remedies to enforce the amount due thereunder as if the city had recov-
27 ered judgment therefor and execution thereon had been returned unsatis-
28 fied.
29 c. Whenever there is made a sale, transfer or assignment in bulk of
30 any part or the whole of a stock of merchandising or of fixtures, or
31 merchandise and of fixtures pertaining to the conducting of the business
32 of the seller, transferor or assignor, otherwise than in the ordinary
33 course of trade and in the regular prosecution of said business, the
34 purchaser, transferee or assignee shall at least ten days before taking
35 possession of such merchandise, fixtures, or merchandise and fixtures,
36 or paying therefor, notify the commissioner of finance by registered
37 mail of the proposed sale and of the price, terms and conditions there-
38 of, whether or not the seller, transferor or assignor, has represented
39 to, or informed the purchaser, transferee or assignee that it owes any
40 tax pursuant to this chapter, whether or not the purchaser, transferee
41 or assignee has knowledge that such taxes are owing, and whether or not
42 any such taxes are in fact owing.
43 Whenever the purchaser, transferee or assignee shall fail to give the
44 notice to the commissioner of finance required by this subdivision, or
45 whenever such commissioner shall inform the purchaser, transferee or
46 assignee that a possible claim for such tax or taxes exists, any sums of
47 money, property or choses in action, or other consideration, which the
48 purchaser, transferee or assignee is required to transfer over to the
49 seller, transferor or assignor shall be subject to a first priority
50 right and lien for any such taxes theretofore or thereafter determined
51 to be due from the seller, transferor or assignor to the city, and the
52 purchaser, transferee or assignee is forbidden to transfer to the sell-
53 er, transferor or assignor any such sums of money, property or choses in
54 action to the extent of the amount of the city's claim. For failure to
55 comply with the provisions of this subdivision the purchaser, transferee
56 or assignee, in addition to being subject to the liabilities and reme-
S. 8578 883
1 dies imposed under the provisions of former article six of the uniform
2 commercial code shall be personally liable for the payment to the city
3 of any such taxes theretofore or thereafter determined to be due to the
4 city from the seller, transferor or assignor and such liability may be
5 assessed and enforced in the same manner as the liability for tax is
6 imposed under this chapter.
7 d. The commissioner of finance, if he or she finds that the interests
8 of the city will not thereby be jeopardized, and upon such conditions as
9 the commissioner of finance may require, may release any property from
10 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
11 tions to tax, penalties and interest filed pursuant to subdivision b of
12 this section, and such release or vacating of the warrant may be
13 recorded in the office of any recording officer in which such warrant
14 has been filed. The clerk shall thereupon cancel and discharge as of the
15 original date of docketing the vacated warrant.
16 § 11-1112 General powers of the commissioner of finance. In addition
17 to the powers granted to the commissioner of finance in this chapter, he
18 or she is hereby authorized and empowered:
19 1. To make, adopt and amend rules and regulations appropriate to the
20 carrying out of this chapter and the purposes thereof; and to prescribe
21 the form of blanks, reports and other records relating to the enforce-
22 ment and administration of this chapter;
23 2. To prescribe methods for determining the amount of "gross income"
24 and "gross operating income" received by a person subject to tax pursu-
25 ant to this chapter;
26 3. To request information from the tax commission of the state of New
27 York or treasury department of the United States relative to any person;
28 and to afford returns, reports and other information to such tax commis-
29 sion or such treasury department relative to any person, any other
30 provision in this chapter to the contrary notwithstanding;
31 4. To extend, for cause shown, the time for filing any return for a
32 period not exceeding thirty days; and to compromise disputed claims in
33 connection with the taxes imposed pursuant to this chapter;
34 5. To delegate his or her functions hereunder to a deputy commission-
35 er of finance or other employee or employees of the department of
36 finance of the city;
37 6. To assess, determine, revise and readjust the taxes imposed under
38 this chapter.
39 § 11-1113 Administration of oaths and compelling testimony. a. The
40 commissioner of finance, his or her employees duly designated and
41 authorized by him or her, the tax appeals tribunal and any of its duly
42 designated and authorized employees shall have power to administer oaths
43 and take affidavits in relation to any matter or proceedings in the
44 exercise of their powers and duties under this chapter. Such commis-
45 sioner and the tax appeals tribunal shall have power to subpoena and
46 require the attendance of witnesses and the production of books, papers
47 and documents to secure information pertinent to the performance of the
48 duties of such commissioner or of the tax appeals tribunal hereunder and
49 of the enforcement of this chapter, and to examine them in relation
50 thereto, and to issue commissions for the examination of witnesses who
51 are out of the state or unable to attend before the commissioner or the
52 tax appeals tribunal or excused from attendance.
53 b. A justice of the supreme court either in court or at chambers shall
54 have power summarily to enforce by proper proceedings the attendance and
55 testimony of witnesses and the production and examination of books,
S. 8578 884
1 papers and documents called for by the subpoena of the commissioner of
2 finance or the tax appeals tribunal under this chapter.
3 c. Cross-reference; criminal penalties. For failure to obey subpoenas
4 or for testifying falsely, see section 11-4007 of this title; for
5 supplying false or fraudulent information, see section 11-4002 of this
6 title.
7 d. The officers who serve the summons or subpoena of the commissioner
8 of finance or the tax appeals tribunal and witnesses attending in
9 response thereto shall be entitled to the same fees as are allowed to
10 officers and witnesses in civil cases in courts of record, except as
11 herein otherwise provided. Such officers shall be the city sheriff, and
12 his or her duly appointed deputies or any officers or employees of the
13 department of finance or the tax appeals tribunal, designated to serve
14 such process.
15 § 11-1114 Interest and penalties. (a) Interest on underpayments. If
16 any amount of tax is not paid on or before the last date prescribed for
17 payment, without regard to any extension of time granted for payment,
18 interest on such amount at the rate set by the commissioner of finance
19 pursuant to subdivision (g) of this section, or, if no rate is set, at
20 the rate of seven and one-half percent per annum, shall be paid for the
21 period from such last date to the date of payment. In computing the
22 amount of interest to be paid, such interest shall be compounded daily.
23 Interest under this subdivision shall not be paid if the amount thereof
24 is less than one dollar.
25 (b) (1) Failure to file return. (A) In case of failure to file a
26 return under this chapter on or before the prescribed date, determined
27 with regard to any extension of time for filing, unless it is shown that
28 such failure is due to reasonable cause and not due to willful neglect,
29 there shall be added to the amount required to be shown as tax on such
30 return five percent of the amount of such tax if the failure is for not
31 more than one month, with an additional five percent for each additional
32 month or fraction thereof during which such failure continues, not
33 exceeding twenty-five percent in the aggregate.
34 (B) In the case of a failure to file a return of tax within sixty days
35 of the date prescribed for filing of such return, determined with regard
36 to any extension of time for filing, unless it is shown that such fail-
37 ure is due to reasonable cause and not due to willful neglect, the addi-
38 tion to tax under subparagraph (A) of this paragraph shall not be less
39 than the lesser of one hundred dollars or one hundred percent of the
40 amount required to be shown as tax on such return.
41 (C) For purposes of this paragraph, the amount of tax required to be
42 shown on the return shall be reduced by the amount of any part of the
43 tax which is paid on or before the date prescribed for payment of the
44 tax and by the amount of any credit against the tax which may be claimed
45 upon the return.
46 (2) Failure to pay tax shown on return. In case of failure to pay the
47 amount shown as tax on a return required to be filed under this chapter
48 on or before the prescribed date, determined with regard to any exten-
49 sion of time for payment, unless it is shown that such failure is due to
50 reasonable cause and not due to willful neglect, there shall be added
51 to the amount shown as tax on such return one-half of one percent of the
52 amount of such tax if the failure is not for more than one month, with
53 an additional one-half of one percent for each additional month or frac-
54 tion thereof during which such failure continues, not exceeding twenty-
55 five percent in the aggregate. For the purpose of computing the addition
56 for any month the amount of tax shown on the return shall be reduced by
S. 8578 885
1 the amount of any part of the tax which is paid on or before the begin-
2 ning of such month and by the amount of any credit against the tax which
3 may be claimed upon the return. If the amount of tax required to be
4 shown on a return is less than the amount shown as tax on such return,
5 this paragraph shall be applied by substituting such lower amount.
6 (3) Failure to pay tax required to be shown on return. In case of
7 failure to pay any amount in respect of any tax required to be shown on
8 a return required to be filed under this chapter which is not so shown,
9 including a determination made pursuant to section 11-1106 of this chap-
10 ter, within ten days of the date of a notice and demand therefor, unless
11 it is shown that such failure is due to reasonable cause and not due to
12 willful neglect, there shall be added to the amount of tax stated in
13 such notice and demand one-half of one percent of such tax if the fail-
14 ure is not for more than one month, with an additional one-half of one
15 percent for each additional month or fraction thereof during which such
16 failure continues, not exceeding twenty-five percent in the aggregate.
17 For the purpose of computing the addition for any month, the amount of
18 tax stated in the notice and demand shall be reduced by the amount of
19 any part of the tax which is paid before the beginning of such month.
20 (4) Limitations on additions.
21 (A) With respect to any return, the amount of the addition under para-
22 graph one of this subdivision shall be reduced by the amount of the
23 addition under paragraph two of this subdivision for any month to which
24 an addition applies under both paragraphs one and two of this subdivi-
25 sion. In any case described in subparagraph (B) of paragraph one of
26 this subdivision, the amount of the addition under such paragraph one
27 shall not be reduced below the amount provided in such subparagraph.
28 (B) With respect to any return, the maximum amount of the addition
29 permitted under paragraph three of this subdivision shall be reduced by
30 the amount of the addition under paragraph one of this subdivision,
31 determined without regard to subparagraph (B) of such paragraph one
32 which is attributable to the tax for which the notice and demand is made
33 and which is not paid within ten days of such notice and demand.
34 (c) Underpayment due to negligence. (1) If any part of an underpayment
35 of tax is due to negligence or intentional disregard of this chapter or
36 any rules or regulations hereunder, but without intent to defraud, there
37 shall be added to the tax a penalty equal to five percent of the under-
38 payment.
39 (2) There shall be added to the tax, in addition to the amount deter-
40 mined under paragraph one of this subdivision, an amount equal to fifty
41 percent of the interest payable under subdivision (a) of this section
42 with respect to the portion of the underpayment described in such para-
43 graph one which is attributable to the negligence or intentional disre-
44 gard referred to in such paragraph one, for the period beginning on the
45 last date prescribed by law for payment of such underpayment, determined
46 without regard to any extension, and ending on the date of the assess-
47 ment of the tax, or, if earlier, the date of the payment of the tax.
48 (3) If any payment is shown on a return made by a payor with respect
49 to dividends, patronage dividends and interest under subsection (a) of
50 section six thousand forty-two, subsection (a) of section six thousand
51 forty-four or subsection (a) of section six thousand forty-nine of the
52 internal revenue code of nineteen hundred fifty-four, respectively, and
53 the payee fails to include any portion of such payment in gross income
54 or gross operating income, when required under this chapter to be so
55 included, any portion of an underpayment attributable to such failure
56 shall be treated, for purposes of this subdivision, as due to negligence
S. 8578 886
1 in the absence of clear and convincing evidence to the contrary. If any
2 penalty is imposed under this subdivision by reason of this paragraph,
3 the amount of the penalty imposed by paragraph one of this subdivision
4 shall be five percent of the portion of the underpayment which is
5 attributable to the failure described in this paragraph.
6 (d) Underpayment due to fraud. (1) If any part of an underpayment of
7 tax is due to fraud, there shall be added to the tax a penalty equal to
8 two times of the underpayment.
9 (2) The penalty under this subdivision shall be in lieu of any other
10 addition to tax imposed by subdivision (b) or (c) of this section.
11 (e) Additional penalty. Any person who, with fraudulent intent, shall
12 fail to pay any tax imposed by this chapter, or to make, render, sign or
13 certify any return, or to supply any information within the time
14 required by or under this chapter, shall be liable for a penalty of not
15 more than one thousand dollars, in addition to any other amounts
16 required under this chapter to be imposed, assessed and collected by the
17 commissioner of finance. The commissioner of finance shall have the
18 power, in his or her discretion, to waive, reduce or compromise any
19 penalty under this subdivision.
20 (f) The interest and penalties imposed by this section shall be paid
21 and disposed of in the same manner as other revenues from this chapter.
22 Unpaid interest and penalties may be enforced in the same manner as the
23 tax imposed by this chapter.
24 (g) (1) Authority to set interest rates. The commissioner of finance
25 shall set the rate of interest to be paid pursuant to subdivision (a) of
26 this section, but if no such rate of interest is set, such rate shall be
27 deemed to be set at seven and one-half percent per annum. Such rate
28 shall be the rate prescribed in paragraph two of this subdivision but
29 shall not be less than seven and one-half percent per annum. Any such
30 rate set by the commissioner of finance shall apply to taxes, or any
31 portion thereof, which remain or become due on or after the date on
32 which such rate becomes effective and shall apply only with respect to
33 interest computed or computable for periods or portions of periods
34 occurring in the period in which such rate is in effect.
35 (2) General rule. The rate of interest set under this subdivision
36 shall be the sum of (i) the federal short-term rate as provided under
37 paragraph three of this subdivision, plus (ii) seven percentage points.
38 (3) Federal short-term rate. For purposes of this subdivision:
39 (A) The federal short-term rate for any month shall be the federal
40 short-term rate determined by the United States secretary of the treas-
41 ury during such month in accordance with subsection (d) of section
42 twelve hundred seventy-four of the internal revenue code for use in
43 connection with section six thousand six hundred twenty-one of the
44 internal revenue code. Any such rate shall be rounded to the nearest
45 full percent, or, if a multiple of one-half of one percent, such rate
46 shall be increased to the next highest full percent.
47 (B) Period during which rate applies.
48 (i) In general. Except as provided in clause (ii) of this subpara-
49 graph, the federal short-term rate for the first month in each calendar
50 quarter shall apply during the first calendar quarter beginning after
51 such month.
52 (ii) Special rule for the month of September, nineteen hundred eight-
53 y-nine. The federal short-term rate for the month of April, nineteen
54 hundred eighty-nine shall apply with respect to setting the rate of
55 interest for the month of September, nineteen hundred eighty-nine.
S. 8578 887
1 (4) Publication of interest rate. The commissioner of finance shall
2 cause to be published in the City Record, and give other appropriate
3 general notice of, the interest rate to be set under this subdivision no
4 later than twenty days preceding the first day of the calendar quarter
5 during which such interest rate applies. The setting and publication of
6 such interest rate shall not be included within paragraph (a) of subdi-
7 vision five of section one thousand forty-one of the city charter of the
8 preceding municipality as it existed January first, nineteen hundred
9 ninety-four relating to the definition of a rule.
10 (h) Miscellaneous. (1) The certificate of the commissioner of finance
11 to the effect that a tax has not been paid, that a return has not been
12 filed, or that information has not been supplied pursuant to the
13 provisions of this chapter shall be prima facie evidence thereof.
14 (2) Cross-reference: For criminal penalties, see chapter forty of this
15 title.
16 (i) Substantial understatement of liability. If there is a substantial
17 understatement of tax for any taxable period, there shall be added to
18 the tax an amount equal to ten percent of the amount of any underpayment
19 attributable to such understatement. For purposes of this subdivision,
20 there is a substantial understatement of tax for any taxable period if
21 the amount of the understatement for the taxable period exceeds the
22 greater of ten percent of the tax required to be shown on the return for
23 the taxable period or five thousand dollars. For purposes of this subdi-
24 vision, the term "understatement" means the excess of the amount of the
25 tax required to be shown on the return for the taxable period, over the
26 amount of the tax imposed which is shown on the return, reduced by any
27 rebate. The amount of such understatement shall be reduced by that
28 portion of the understatement which is attributable to the tax treatment
29 of any item by the taxpayer if there is or was substantial authority for
30 such treatment, or any item with respect to which the relevant facts
31 affecting the item's tax treatment are adequately disclosed in the
32 return or in a statement attached to the return. The commissioner of
33 finance may waive all or any part of the addition to tax provided by
34 this subdivision on a showing by the taxpayer that there was reasonable
35 cause for the understatement, or part thereof, and that the taxpayer
36 acted in good faith.
37 (j) Aiding or assisting in the giving of fraudulent returns, reports,
38 statements or other documents. (1) Any person who, with the intent that
39 tax be evaded, shall, for a fee or other compensation or as an incident
40 to the performance of other services for which such person receives
41 compensation, aid or assist in, or procure, counsel, or advise the prep-
42 aration or presentation under, or in connection with any matter arising
43 under this title of any return, report, statement or other document
44 which is fraudulent or false as to any material matter, or supply any
45 false or fraudulent information, whether or not such falsity or fraud is
46 with the knowledge or consent of the person authorized or required to
47 present such return, report, statement or other document shall pay a
48 penalty not exceeding ten thousand dollars.
49 (2) For purposes of paragraph one of this subdivision, the term
50 "procures" includes ordering, or otherwise causing, a subordinate to do
51 an act, and knowing of, and not attempting to prevent, participation by
52 a subordinate in an act. The term "subordinate" means any other person,
53 whether or not a director, officer, employee, or agent of the taxpayer
54 involved, over whose activities the person has direction, supervision,
55 or control.
S. 8578 888
1 (3) For purposes of paragraph one of this subdivision, a person
2 furnishing typing, reproducing, or other mechanical assistance with
3 respect to a document shall not be treated as having aided or assisted
4 in the preparation of such document by reason of such assistance.
5 (4) The penalty imposed by this subdivision shall be in addition to
6 any other penalty provided by law.
7 (k) Failure to include on return information relating to issuer's
8 allocation percentage. Where a return is filed but does not contain (1)
9 the information necessary to compute the taxpayer's issuer's allocation
10 percentage, as defined in subparagraph one of paragraph (b) of subdivi-
11 sion three of section 11-604 of this title, where the same is called for
12 on the return, or, (2) the taxpayer's issuer's allocation percentage,
13 where the same is called for on the return but where all of the informa-
14 tion necessary for the computation of such percentage is not called for
15 on the return, then unless it is shown that such failure is due to
16 reasonable cause and not due to willful neglect there shall be added to
17 the tax a penalty of five hundred dollars.
18 (l) False or fraudulent document penalty. Any taxpayer that submits a
19 false or fraudulent document to the department shall be subject to a
20 penalty of one hundred dollars per document submitted, or five hundred
21 dollars per tax return submitted. Such penalty shall be in addition to
22 any other penalty or addition provided by law.
23 § 11-1115 Notices and limitations of time. a. Any notice authorized
24 or required under the provisions of this chapter may be given by mailing
25 the same to the person for whom it is intended in a postpaid envelope
26 addressed to such person at the address given in the last return filed
27 by such person pursuant to the provisions of this chapter or in any
28 application made by him or her, or, if no return has been filed or
29 application made, then to such address as may be obtainable. The mail-
30 ing of such notice shall be presumptive evidence of the receipt of the
31 same by the person to whom addressed. Any period of time which is
32 determined according to the provisions of this chapter by the giving of
33 notice shall commence to run from the date of mailing of such notice.
34 b. The provisions of the civil practice law and rules or any other law
35 relative to limitations of time for the enforcement of a civil remedy
36 shall not apply to any proceeding or action by the city taken to levy,
37 appraise, assess, determine or enforce the collection of any tax or
38 penalty provided by this chapter. However, except in the case of a
39 wilfully false or fraudulent return with intent to evade the tax, no
40 assessment of additional tax imposed under a local law for the preceding
41 municipality enacted subsequent to July first, nineteen hundred thirty-
42 eight, shall be made after the expiration of more than three years from
43 the date of the filing of a return, provided, however, that where no
44 return has been filed, or where the taxpayer fails to file a report or
45 return in respect of a change or correction in the amount of sales and
46 compensating use tax liability as provided by law, the tax may be
47 assessed at any time. Where the taxpayer files a report or return in
48 respect of a change or correction in sales and compensating use tax
49 liability, as required by subdivision d of section 11-1104 of this chap-
50 ter, an assessment may be made at any time within two years after such
51 report or return was filed, provided, however, that this sentence shall
52 not affect the time within which an assessment may otherwise be made.
53 c. Where, before the expiration of the period prescribed herein for
54 the assessment of an additional tax, a taxpayer has consented in writing
55 that such period be extended, the amount of such additional tax due may
56 be determined at any time within such extended period. The period so
S. 8578 889
1 extended may be further extended by subsequent consents in writing made
2 before the expiration of the extended period.
3 d. If any return, claim, statement, notice, application, or other
4 document required to be filed, or any payment required to be made, with-
5 in a prescribed period or on or before a prescribed date under authority
6 of any provision of this chapter is, after such period or such date,
7 delivered by United States mail to the commissioner of finance, the tax
8 appeals tribunal, bureau, office, officer or person with which or with
9 whom such document is required to be filed, or to which or to whom such
10 payment is required to be made, the date of the United States postmark
11 stamped on the envelope shall be deemed to be the date of delivery. This
12 subdivision shall apply only if the postmark date falls within the
13 prescribed period or on or before the prescribed date for the filing of
14 such document, or for making the payment, including any extension grant-
15 ed for such filing or payment, and only if such document or payment was
16 deposited in the mail, postage prepaid, properly addressed to the
17 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
18 cer or person with which or with whom the document is required to be
19 filed or to which or to whom such payment is required to be made. If any
20 document is sent by United States registered mail, such registration
21 shall be prima facie evidence that such document was delivered to the
22 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
23 cer or person to which or to whom addressed, and the date of registra-
24 tion shall be deemed the postmark date. The commissioner of finance or,
25 where relevant, the tax appeals tribunal is authorized to provide by
26 regulation the extent to which the provisions such with respect to prima
27 facie evidence of delivery and the postmark date shall apply to certi-
28 fied mail. Except as provided in subdivision f of this section, this
29 subdivision shall apply in the case of postmarks not made by the United
30 States postal service only if and to the extent provided by regulation
31 of the commissioner of finance or where relevant, the tax appeals tribu-
32 nal.
33 e. When the last day prescribed under authority of this chapter,
34 including any extension of time, for performing any act falls on a
35 Saturday, Sunday or legal holiday in the state, the performance of such
36 act shall be considered timely if it is performed on the next succeeding
37 day which is not a Saturday, Sunday or legal holiday.
38 f. (1) Any reference in subdivision d of this section to the United
39 States mail shall be treated as including a reference to any delivery
40 service designated by the secretary of the treasury of the United States
41 pursuant to section seventy-five hundred two of the internal revenue
42 code and any reference in subdivision d of this section to a United
43 States postmark shall be treated as including a reference to any date
44 recorded or marked in the manner described in section seventy-five
45 hundred two of the internal revenue code by a designated delivery
46 service. If the commissioner of finance finds that any delivery service
47 designated by such secretary is inadequate for the needs of the city,
48 the commissioner of finance may withdraw such designation for purposes
49 of this title. The commissioner of finance may also designate additional
50 delivery services meeting the criteria of section seventy-five hundred
51 two of the internal revenue code for purposes of this title, or may
52 withdraw any such designation if the commissioner of finance finds that
53 a delivery service so designated is inadequate for the needs of the
54 city. Any reference in subdivision d of this section to the United
55 States mail shall be treated as including a reference to any delivery
56 service designated by the commissioner of finance and any reference in
S. 8578 890
1 subdivision d of this section to a United States postmark shall be
2 treated as including a reference to any date recorded or marked in the
3 manner described in section seventy-five hundred two of the internal
4 revenue code by a delivery service designated by the commissioner of
5 finance; provided, however, any withdrawal of designation or additional
6 designation by the commissioner of finance shall not be effective for
7 purposes of service upon the tax appeals tribunal, unless and until such
8 withdrawal of designation or additional designation is ratified by the
9 president of the tax appeals tribunal.
10 (2) Any equivalent of registered or certified mail designated by the
11 United States secretary of the treasury, or as may be designated by the
12 commissioner of finance pursuant to the same criteria used by such
13 secretary for such designations pursuant to section seventy-five hundred
14 two of the internal revenue code, shall be included within the meaning
15 of registered or certified mail as used in subdivision d of this
16 section. If the commissioner of finance finds that any equivalent of
17 registered or certified mail designated by such secretary or the commis-
18 sioner of finance is inadequate for the needs of the city, the commis-
19 sioner of finance may withdraw such designation for purposes of this
20 title. Notwithstanding the foregoing, any withdrawal of designation or
21 additional designation by the commissioner of finance shall not be
22 effective for purposes of service upon the tax appeals tribunal, unless
23 and until such withdrawal of designation or additional designation is
24 ratified by the president of the tax appeals tribunal.
25 § 11-1116 Returns to be secret. a. Except in accordance with proper
26 judicial order or as otherwise provided by law, it shall be unlawful for
27 the commissioner of finance, the tax appeals tribunal, or any officer or
28 employee of the department of finance or the tax appeals tribunal to
29 divulge or make known in any manner, the receipts or any other informa-
30 tion relating to the business of a taxpayer contained in any return
31 required under this chapter. The officers charged with the custody of
32 such returns shall not be required to produce any of them or evidence of
33 anything contained in them in any action or proceeding in any court,
34 except on behalf of the city or the commissioner of finance, or on
35 behalf of any party to any action or proceeding under the provisions of
36 this chapter when the returns or facts shown thereby are directly
37 involved in such action or proceeding, in either of which events, the
38 court may require the production of, and may admit in evidence, so much
39 of said returns or of the facts shown thereby, as are pertinent to the
40 action or proceeding and no more. Nothing in this subdivision shall be
41 construed to prohibit the delivery to a taxpayer or his or her duly
42 authorized representative of a certified copy of any return filed in
43 connection with his or her tax, nor to prohibit the publication of
44 statistics so classified as to prevent the identification of particular
45 returns and the items thereof, or the inspection by the corporation
46 counsel of the city or other legal representatives of such city of the
47 return of any taxpayer who shall bring action or proceeding to set aside
48 or review the tax based thereon, or against whom an action or proceeding
49 has been instituted or is contemplated for the collection of a tax,
50 penalty or interest. Returns shall be preserved for three years and
51 thereafter until the commissioner of finance permits them to be
52 destroyed.
53 b. (1) Any officer or employee of the city who willfully violates the
54 provisions of subdivision a of this section shall be dismissed from
55 office and be incapable of holding any public office in this city for a
56 period of five years thereafter.
S. 8578 891
1 (2) Cross-reference: For criminal penalties, see chapter forty of this
2 title.
3 c. This section shall be deemed a state statute for purposes of para-
4 graph (a) of subdivision two of section eighty-seven of the public offi-
5 cers law.
6 d. Notwithstanding anything in subdivision a of this section to the
7 contrary, if a taxpayer has petitioned the tax appeals tribunal for
8 administrative review as provided in section one hundred seventy of the
9 charter of the preceding municipality as it existed January first, nine-
10 teen hundred ninety-four, the commissioner of finance shall be author-
11 ized to present to the tribunal any report or return of such taxpayer,
12 or any information contained therein or relating thereto, which may be
13 material or relevant to the proceeding before the tribunal. The tax
14 appeals tribunal shall be authorized to publish a copy or a summary of
15 any decision rendered pursuant to section one hundred seventy-one of the
16 charter of the preceding municipality as it existed January first, nine-
17 teen hundred ninety-four.
18 § 11-1117 Construction and enforcement. This chapter shall be
19 construed and enforced in conformity with chapter ninety-three of the
20 laws of nineteen hundred sixty-five, as amended, pursuant to which it is
21 enacted.
22 § 11-1118 Disposition of revenues. All revenues resulting from the
23 imposition of the tax under this chapter shall be paid into the treasury
24 of the city and shall be credited to and deposited in the general fund
25 of the city, but no part of such revenues may be expended unless appro-
26 priated in the annual budget of the city.
27 § 11-1119 Determinations of place of primary use of wireless telecom-
28 munications services. a. A home service provider shall be responsible
29 for obtaining and maintaining the customer's place of primary use as
30 defined in subdivision twenty of section 11-1101 of this chapter. Except
31 as provided in subdivision b of this section, if the home service
32 provider's reliance on the information provided by its customer is in
33 good faith: (1) the home service provider can rely on the applicable
34 residential or business street address supplied by the home service
35 provider's customer; and (2) the home service provider shall not be held
36 liable for any additional taxes under this chapter based on a different
37 determination of the place of primary use.
38 b. The commissioner of finance, or the commissioner of taxation and
39 finance of the state of New York on behalf of the commissioner of
40 finance, may determine that the address used by a home service provider
41 for purposes of this chapter does not meet the definition of place of
42 primary use as defined in subdivision twenty of section 11-1101 of this
43 chapter and may give binding notice to the home service provider to
44 change the place of primary use on a prospective basis from the date of
45 notice of determination if:
46 (1) where the determination is made by the commissioner of finance,
47 such commissioner obtains the consent of all affected taxing jurisdic-
48 tions within this state before giving such notice of determination; and
49 (2) before the commissioner of finance or the commissioner of taxation
50 and finance of the state of New York gives such notice of determination,
51 the customer is given an opportunity to demonstrate, in accordance with
52 applicable procedures established by the commissioner of finance making
53 the determination, that that address is the customer's place of primary
54 use.
55 c. Except as provided in subdivision b of this section, a home service
56 provider may treat the address used by the home service provider for
S. 8578 892
1 purposes of this chapter for the last taxable period beginning before
2 August first, two thousand two, for any customer under a service
3 contract or agreement in effect on July twenty-eighth, two thousand two
4 as that customer's place of primary use for the remaining term of such
5 service contract or agreement, excluding any extension or renewal of
6 such service contract or agreement.
7 § 11-1120 Assignment of place of primary use of telecommunications
8 services to the city. a. If an electronic database meeting the require-
9 ments of subsection a of section one hundred nineteen of title four of
10 the United States Code is provided by the state of New York, or by a
11 designated database provider as defined in subsection three of section
12 one hundred twenty-four of such title, and the requirements of
13 subsection b of such section one hundred nineteen are met, a home
14 service provider shall use that database to determine whether the
15 customer's place of primary use is within the territorial limits of the
16 city and shall reflect changes to such database in accordance with
17 subsection c of such section one hundred nineteen.
18 b. A home service provider using the data contained in an electronic
19 database described in subdivision a of this section shall be held harm-
20 less from any tax liability that otherwise would be due under this chap-
21 ter solely as a result of any error or omission in such database
22 provided the home service provider has properly reflected changes to
23 such database in accordance with subsection c of section one hundred
24 nineteen of title four of the United States Code.
25 c. (1) If no electronic database is provided as described in subdivi-
26 sion a of this section, a home service provider shall be held harmless
27 from any tax liability under this chapter that otherwise would be due
28 solely as a result of an assignment of a street address to an incorrect
29 taxing jurisdiction if, subject to subdivision d of this section, the
30 home service provider employs an enhanced zip code to assign each street
31 address to a specific taxing jurisdiction for each level of taxing
32 jurisdiction and exercises due diligence at each level of taxing juris-
33 diction to ensure that each such street address is assigned to the
34 correct taxing jurisdiction. If an enhanced zip code overlaps boundaries
35 of taxing jurisdictions of the same level, the home service provider
36 must designate one specific jurisdiction within such enhanced zip code
37 for use in taxing the activity for such enhanced zip code for each level
38 of taxing jurisdiction. Any enhanced zip code assignment changed in
39 accordance with subdivision d of this section is deemed to be in compli-
40 ance with this subdivision. For purposes of this subdivision, there is a
41 rebuttable presumption that a home service provider has exercised due
42 diligence if such home service provider demonstrates that it has: (i)
43 expended reasonable resources to implement and maintain an appropriately
44 detailed electronic database of street address assignments to taxing
45 jurisdictions; (ii) implemented and maintained reasonable internal
46 controls to promptly correct misassignments of street addresses to
47 taxing jurisdictions; and (iii) used all reasonably obtainable and
48 usable data pertaining to municipal annexations, incorporations, reor-
49 ganizations and any other changes in jurisdictional boundaries that
50 materially affect the accuracy of such database.
51 (2) Paragraph one of this subdivision applies to a home service
52 provider that is in compliance with the requirements of such paragraph
53 until the later of: (i) eighteen months after the nationwide standard
54 numeric code described in subsection (a) of section one hundred nineteen
55 of title four of the United States Code has been approved by the feder-
56 ation of tax administrators and the multistate tax commission; or (ii)
S. 8578 893
1 six months after the state of New York or a designated database provider
2 provides a database as prescribed in subdivision a of this section.
3 d. The commissioner of finance, or the commissioner of taxation and
4 finance of the state of New York on behalf of the commissioner of
5 finance, may determine that the assignment of a street address to a
6 taxing jurisdiction by a home service provider under subdivision c of
7 this section does not reflect the correct taxing jurisdiction and give
8 binding notice to the home service provider to change the assignment on
9 a prospective basis from the date of notice of determination if: (1)
10 where the determination is made by the commissioner of finance, such
11 commissioner obtains the consent of all affected taxing jurisdictions
12 within this state before giving such notice of determination; and (2)
13 the home service provider is given an opportunity to demonstrate in
14 accordance with applicable procedures established by the commissioner of
15 finance making the determination that the assignment reflects the
16 correct taxing jurisdiction.
17 CHAPTER 12
18 HORSE RACE ADMISSIONS TAX
19 § 11-1201 Definitions. When used in this chapter the following terms
20 shall mean or include:
21 1. "Racing corporation or association." A racing corporation or
22 association or other person owning or operating race meeting grounds or
23 enclosures located wholly or partly within the city of Staten Island,
24 and/or a racing corporation or association or other person conducting
25 race meetings at such grounds or enclosures.
26 2. "Person." Includes an individual, partnership, society, associ-
27 ation, joint-stock company, corporation, estate, receiver, trustee,
28 assignee, referee, or any other person acting in a fiduciary or repre-
29 sentative capacity, whether appointed by a court or otherwise, and any
30 combination of individuals.
31 3. "Return." Includes any return filed or required to be filed as
32 herein provided.
33 4. "Comptroller." The comptroller of the city.
34 5. "Commissioner of finance." The commissioner of finance of the
35 city.
36 6. "Admissions." The charge required to be paid by patrons for
37 admission to a running horse race meeting, including any charge required
38 to be paid by such patrons for admission to the clubhouse or other
39 special facilities within the race meeting grounds or enclosure at which
40 the running race meeting is conducted.
41 7. "Tax appeals tribunal." The tax appeals tribunal established by
42 section one hundred sixty-eight of the charter of the preceding munici-
43 pality as it existed January first, nineteen hundred ninety-four.
44 § 11-1202 Imposition of tax. A tax is hereby imposed on all admis-
45 sions to running horse race meetings conducted at race meeting grounds
46 or enclosures located wholly or partly within the city of Staten Island
47 at the rate of three percent of the admission price. The racing associ-
48 ation or corporation conducting a running horse race meeting shall, in
49 addition to the admission price, collect such tax on all tickets sold or
50 otherwise disposed of to patrons for admission with the sole exception
51 of those issued free passes, cards or badges in accordance with the
52 specific authority of the laws of the state of New York. In case of
53 failure to collect such tax the tax shall be imposed on the racing
54 corporation or association conducting such meeting.
S. 8578 894
1 § 11-1203 Payment of the tax. a. The tax imposed by this chapter
2 shall be paid by the racing corporation or association to the commis-
3 sioner of finance daily after each day of each race meeting, by deposit-
4 ing it to the account of the city in such bank or banks as may be desig-
5 nated by the city in accordance with the provisions of section four
6 hundred twenty-one of the charter of the preceding municipality as it
7 existed January first, nineteen hundred ninety-four or at such regular
8 intervals as the commissioner of finance may require.
9 b. The amount of the tax paid on admissions pursuant to this chapter
10 shall be the property of the city of Staten Island and shall be held by
11 the racing corporation or association as trustee for and on account of
12 the city of Staten Island and the racing corporation or association
13 shall be liable for the tax. Officers of the racing corporation or
14 association shall be personally liable for the tax collected or required
15 to be collected hereunder.
16 c. Every racing corporation or association conducting running horse
17 race meetings at race meeting grounds or enclosures located wholly or
18 partly within the city of Staten Island shall, on or before April first,
19 nineteen hundred fifty-two and annually thereafter, before the opening
20 of any race meeting in each year, execute and file with the commissioner
21 of finance a bond issued by a surety company authorized to transact
22 business in this state and approved by the superintendent of insurance
23 of this state as to solvency and responsibility in an amount sufficient
24 to secure the payment of the taxes and/or penalties and interest due or
25 which may become due pursuant to this section, to be fixed by the
26 commissioner of finance.
27 § 11-1204 Returns. a. Every racing corporation or association
28 shall file with the commissioner of finance daily after each day of each
29 race meeting or at such regular intervals as the commissioner of finance
30 may require and upon such forms as shall be prescribed by the commis-
31 sioner of finance a return showing the taxes collected pursuant to this
32 chapter and the number of persons admitted to meetings conducted by the
33 racing corporation or association during the periods covered by the
34 return, together with any and all other information which the commis-
35 sioner of finance shall require to be included and reported in such
36 return. The commissioner of finance may require at any time supple-
37 mental or amended returns of such additional information or data as he
38 or she may specify.
39 b. Every return required pursuant to this section shall have annexed
40 thereto an affidavit of an officer of the racing corporation or associ-
41 ation to the effect that the statements contained therein are true.
42 § 11-1205 Records to be kept and audits by commissioner of finance.
43 Every racing corporation or association shall keep such records as may
44 be prescribed by the commissioner of finance, of all admissions and
45 taxes collected pursuant to this chapter. Such records shall be avail-
46 able for inspection and examination at any time upon demand by the
47 commissioner of finance or the commissioner's duly authorized agents or
48 employees, and such records shall be preserved for a period of three
49 years, except that the commissioner of finance may consent to their
50 destruction within that period, and may require that they be kept longer
51 than three years.
52 § 11-1206 Determination of tax. If a return required by this chapter
53 is not filed, or if a return when filed is incorrect or insufficient the
54 amount of tax due shall be determined by the commissioner of finance
55 from such information as may be obtainable and, if necessary, the tax
56 may be estimated on the basis of external indices, such as number of
S. 8578 895
1 race meetings held, admissions, paid attendance, and/or other factors.
2 Notice of such determination shall be given to the person liable for the
3 collection and/or payment of the tax. Such determination shall finally
4 and irrevocably fix the tax unless the person against whom it is
5 assessed, within ninety days after giving the notice of such determi-
6 nation, or, if the commissioner of finance has established a concil-
7 iation procedure pursuant to section 11-124 of this title and the
8 taxpayer has requested a conciliation conference in accordance there-
9 with, within ninety days from the mailing of a conciliation decision or
10 the date of the commissioner's confirmation of the discontinuance of the
11 conciliation proceeding, both (1) serves a petition upon the commission-
12 er of finance and (2) files a petition with the tax appeals tribunal for
13 a hearing, or unless the commissioner of finance of his or her own
14 motion shall redetermine the same. Such hearing and any appeal to the
15 tax appeals tribunal sitting en banc from the decision rendered in such
16 hearing shall be conducted in the manner and subject to the requirements
17 prescribed by the tax appeals tribunal pursuant to sections one hundred
18 sixty-eight through one hundred seventy-two of the charter of the
19 preceding municipality as it existed January first, nineteen hundred
20 ninety-four. After such hearing the tax appeals tribunal shall give
21 notice of its decision to the person liable for the tax and to the
22 commissioner of finance. A decision of the tax appeals tribunal sitting
23 en banc shall be reviewable for error, illegality or unconstitutionality
24 or any other reason whatsoever by a proceeding under article seventy-
25 eight of the civil practice law and rules if application therefor is
26 made to the supreme court by the person against whom the tax was
27 assessed within four months after the giving of the notice of such tax
28 appeals tribunal decision. A proceeding under article seventy-eight of
29 the civil practice law and rules shall not be instituted by a person
30 liable for the tax unless the amount of any tax sought to be reviewed
31 with interest and penalties thereon, if any, shall be first deposited
32 with the commissioner of finance and there shall be filed with the
33 commissioner of finance an undertaking, issued by a surety company
34 authorized to transact business in this state and approved by the super-
35 intendent of insurance of this state as to solvency and responsibility,
36 in such amount as a justice of the supreme court shall approve to the
37 effect that if such proceeding be dismissed or the tax confirmed, such
38 person will pay all costs and charges which may accrue in the prose-
39 cution of the proceeding, or at the option of such person such undertak-
40 ing filed with the commissioner of finance may be in a sum sufficient to
41 cover the taxes, penalties and interest thereon stated in such decision
42 plus the costs and charges which may accrue against it in the prose-
43 cution of the proceeding, in which event such person shall not be
44 required to deposit such taxes, penalties and interest as a condition
45 precedent to the application.
46 § 11-1207 Refunds. a. In the manner provided in this section the
47 commissioner of finance shall refund or credit, without interest, any
48 tax, penalty or interest erroneously, illegally, or unconstitutionally
49 collected or paid if application to the commissioner of finance for such
50 refund shall be made within one year from the payment thereof. Whenever
51 a refund or credit is made or denied by the commissioner of finance, he
52 or she shall state his or her reason therefor and give notice thereof to
53 the applicant in writing. The commissioner of finance may, in lieu of
54 any refund required to be made, allow credit therefor on payments due
55 from the applicant.
S. 8578 896
1 b. Any determination of the commissioner of finance denying a refund
2 or credit pursuant to subdivision a of this section shall be final and
3 irrevocable unless the applicant for such refund or credit, within nine-
4 ty days from the mailing of notice of such determination, or, if the
5 commissioner of finance has established a conciliation procedure, pursu-
6 ant to section 11-124 of this title and the applicant has requested a
7 conciliation conference in accordance therewith, within ninety days of
8 the mailing of a conciliation decision or the date of the commissioner's
9 confirmation of the discontinuance of the conciliation proceeding, both
10 (1) serves a petition upon the commissioner of finance and (2) files a
11 petition with the tax appeals tribunal for a hearing. Such petition for
12 a refund or credit, made as provided under this section, shall be deemed
13 an application for a revision of any tax, penalty or interest complained
14 of. Such hearing and any appeal to the tax appeals tribunal sitting en
15 banc from the decision rendered in such hearing shall be conducted in
16 the manner and subject to the requirements prescribed by the tax appeals
17 tribunal pursuant to section one hundred sixty-eight through one hundred
18 seventy-two of the charter of the preceding municipality as it existed
19 January first, nineteen hundred ninety-four. After such hearing, the tax
20 appeals tribunal shall give notice of its decision to the applicant and
21 to the commissioner of finance. The applicant shall be entitled to
22 institute a proceeding pursuant to article seventy-eight of the civil
23 practice law and rules to review a decision of the tax appeals tribunal
24 sitting en banc, provided such proceeding is instituted within four
25 months after the giving of the notice of such decision, and provided, in
26 the case of an application by a person liable for the tax, that a final
27 determination of tax due was not previously made. Such a proceeding
28 shall not be instituted by a person liable for the tax unless an under-
29 taking is filed with the commissioner of finance in such amount and with
30 such sureties as a justice of the supreme court shall approve to the
31 effect that if such proceeding be dismissed or the tax confirmed, such
32 person will pay all costs and charges which may accrue in the prose-
33 cution of such proceeding.
34 c. A person shall not be entitled to a revision, refund or credit
35 under this section of a tax, interest or penalty which has been deter-
36 mined to be due pursuant to the provisions of section 11-1206 of this
37 chapter where such person has had a hearing or an opportunity for a
38 hearing, as provided in said section, or has failed to avail himself or
39 herself of the remedies therein provided. No refund or credit shall be
40 made of a tax, interest or penalty paid after a determination by the
41 commissioner of finance made pursuant to section 11-1206 of this chapter
42 unless it be found that such determination was erroneous, illegal or
43 unconstitutional or otherwise improper, by the tax appeals tribunal
44 after a hearing or of the commissioner's own motion, or, if such tax
45 appeals tribunal affirms in whole or in part the determination of the
46 commissioner of finance, in a proceeding under article seventy-eight of
47 the civil practice law and rules, pursuant to the provisions of said
48 section, in which event refund or credit without interest shall be made
49 of the tax, interest or penalty found to have been overpaid.
50 § 11-1208 Reserves. In cases where a person has applied for a
51 refund and has instituted a proceeding under article seventy-eight of
52 the civil practice law and rules to review a determination adverse to
53 such person on his or her application for refund, the comptroller shall
54 set up appropriate reserves to meet any decision adverse to the city.
55 § 11-1209 Remedies exclusive. The remedies provided by sections
56 11-1206 and 11-1207 of this chapter shall be exclusive remedies avail-
S. 8578 897
1 able to any person for the review of tax liability imposed by this chap-
2 ter, and no determination or proposed determination of tax or determi-
3 nation on any application for refund by the commissioner of finance, nor
4 any decision by the tax appeals tribunal or any of its administrative
5 law judges, shall be enjoined or reviewed by an action for declaratory
6 judgment, an action for money had and received or by any action or
7 proceeding other than, in the case of a decision by the tax appeals
8 tribunal sitting en banc, a proceeding in the nature of a certiorari
9 proceeding under article seventy-eight of the civil practice law and
10 rules; provided, however, that such person may proceed by declaratory
11 judgment if such person institutes suit within ninety days after a defi-
12 ciency assessment is made and pays the amount of the deficiency assess-
13 ment to the commissioner of finance prior to the institution of such
14 suit and posts a bond for costs as provided in section 11-1206 of this
15 chapter.
16 § 11-1210 Proceedings to recover tax. a. Whenever any racing
17 corporation or association or any of its officers or any other person
18 shall fail to collect and pay over any tax or to pay any tax, penalty or
19 interest imposed by this chapter as therein provided, the corporation
20 counsel shall, upon the request of the commissioner of finance bring or
21 cause to be brought an action to enforce the payment of the same on
22 behalf of the city of Staten Island in any court of the state of New
23 York or of any other state or of the United States. If, however, the
24 commissioner of finance in his or her discretion believes that a person
25 subject to the provisions of this chapter is about to cease business,
26 leave the state or remove or dissipate the assets out of which the tax
27 or penalties might be satisfied, and that any such tax or penalty will
28 not be paid when due, the commissioner of finance may declare such tax
29 or penalty to be immediately due and payable and may issue a warrant
30 immediately.
31 b. As an additional or alternate remedy, the commissioner of finance
32 may issue a warrant, directed to the city sheriff commanding the sheriff
33 to levy upon and sell the real and personal property of the racing
34 corporation or association or its officers or any other person which may
35 be found within the city, for the payment of the amount thereof, with
36 any penalties and interest, and the cost of executing the warrant, and
37 to return such warrant to the commissioner of finance and to pay to the
38 commissioner of finance the money collected by virtue thereof within
39 sixty days after the receipt of such warrant. The city sheriff shall
40 within five days after the receipt of the warrant file with the county
41 clerk a copy thereof, and thereupon such clerk shall enter in the judg-
42 ment docket the name of the person mentioned in the warrant and the
43 amount of the tax, penalties and interest for which the warrant is
44 issued and the date when such copy is filed. Thereupon the amount of
45 such warrant so docketed shall become a lien upon the title to and
46 interest in real and personal property of the person against whom the
47 warrant is issued. The city sheriff shall then proceed upon the warrant
48 in the same manner, and with like effect, as that provided by law in
49 respect to executions issued against property upon judgments of a court
50 of record and for services in executing the warrants the city sheriff
51 shall be entitled to the same fees, which the city sheriff may collect
52 in the same manner. In the discretion of the commissioner of finance a
53 warrant of like terms, force and effect may be issued and directed to
54 any officer or employee of the department of finance, and in the
55 execution thereof such officer or employee shall have all the powers
56 conferred by law upon sheriffs, but shall be entitled to no fee or
S. 8578 898
1 compensation in excess of the actual expenses paid in the performance of
2 such duty. If a warrant is returned not satisfied in full, the commis-
3 sioner of finance may from time to time issue new warrants and shall
4 also have the same remedies to enforce the amount due thereunder as if
5 the city had recovered judgment therefor and execution thereon had been
6 returned unsatisfied.
7 c. Whenever a corporation or association shall make a sale, transfer
8 or assignment in bulk or any part or the whole of its race meeting
9 grounds or enclosures and the building and structures thereon, or its
10 lease, license or other agreement or right to possess or operate such
11 race meeting grounds or enclosures or of the equipment, machinery,
12 fixtures or supplies, or of the said race meeting grounds or enclosures
13 and the building and structures thereon, or lease, license or other
14 agreement or right to possess or operate such race meeting grounds or
15 enclosures, and the equipment, machinery, fixtures or supplies pertain-
16 ing to the conduct or the operation of the said race meeting grounds or
17 enclosures, otherwise than in the ordinary course of trade and in the
18 regular prosecution of said business, the purchaser, transferee or
19 assignee shall at least ten days before taking possession of such race
20 meeting grounds or enclosures and the building and structures thereon,
21 or lease, license or other agreement or right to possess or operate such
22 race meeting grounds or enclosures or the equipment, machinery, fixtures
23 or supplies, or of the said race meeting grounds or enclosures and the
24 building and structures thereon, or lease, license or other agreement or
25 right to possess or operate such race meeting grounds or enclosures, and
26 the equipment, machinery, fixtures or supplies or paying thereof, notify
27 the commissioner of finance by registered mail of the proposed sale and
28 of the price, terms and conditions thereof whether or not the seller,
29 transferor or assignor, has represented to, or informed the purchaser,
30 transferee or assignee that it owes any tax pursuant to this chapter and
31 whether or not the purchaser, transferee or assignee has knowledge that
32 such taxes are owing, and whether any such taxes are in fact owing.
33 Whenever the purchaser, transferee or assignee shall fail to give
34 notice to the commissioner of finance as required by the opening para-
35 graph of this subdivision, or whenever the commissioner of finance shall
36 inform the purchaser, transferee or assignee that a possible claim for
37 such tax or taxes exists, any sums of money, property or choses in
38 action, or other consideration, which the purchaser, transferee or
39 assignee is required to transfer over to the seller, transferor or
40 assignor shall be subject to a first priority right and lien for any
41 such taxes theretofore or thereafter determined to be due from the sell-
42 er, transferor or assignor to the city, and the purchaser, transferee or
43 assignee is forbidden to transfer to the seller, transferor or assignor
44 any such sums of money, property or choses in action to the extent of
45 the amount of the city's claim. For failure to comply with the
46 provisions of this subdivision, the purchaser, transferee or assignee,
47 in addition to being subject to the liabilities and remedies imposed
48 under the provisions of former article six of the uniform commercial
49 code, shall be personally liable for the payment to the city of any such
50 taxes theretofore or thereafter determined to be due to the city from
51 the seller, transferor or assignor, and such liability may be assessed
52 and enforced in the same manner as the liability for tax under this
53 chapter.
54 d. The commissioner of finance, if he or she finds that the interests
55 of the city will not thereby be jeopardized, and upon such conditions as
56 the commissioner of finance may require, may release any property from
S. 8578 899
1 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
2 tions to tax, penalties and interest filed pursuant to subdivision b of
3 this section, and such release or vacating of the warrant may be
4 recorded in the office of any recording officer in which such warrant
5 has been filed. The clerk shall thereupon cancel and discharge as of the
6 original date of docketing the vacated warrant.
7 § 11-1211 General powers of the commissioner of finance. In addition
8 to the powers granted to the commissioner of finance in this chapter,
9 such commissioner is hereby authorized and empowered:
10 1. To make, adopt and amend rules and regulations appropriate to the
11 carrying out of this chapter and the purposes thereof;
12 2. To extend, for cause shown, the time for filing any return for a
13 period not exceeding thirty days; and to compromise disputed claims in
14 connection with the taxes hereby imposed;
15 3. To request information from the racing commission and the tax
16 commission of the state of New York, or any other state or the treasury
17 department of the United States relative to any person; and to afford
18 information to such commission or such treasury department relative to
19 any person, any other provision of this chapter to the contrary notwith-
20 standing;
21 4. To delegate his or her functions under this section to a deputy
22 commissioner of finance or any employee or employees of the department
23 of finance;
24 5. To prescribe methods for determining the amount of the admissions
25 and for determining the tax;
26 6. To require racing corporations or associations to keep detailed
27 records of all race meetings and all attendance thereat, and to furnish
28 such information upon request to the commissioner of finance;
29 7. To require that the amount of the tax be printed, separate from
30 the price of admission, on tickets of admission.
31 § 11-1212 Administration of oaths and compelling testimony. a. The
32 commissioner of finance, his or her employees or agents duly designated
33 and authorized by the commissioner of finance, the tax appeals tribunal
34 and any of its duly designated and authorized employees or agents shall
35 have power to administer oaths and take affidavits in relation to any
36 matter or proceeding in the exercise of their powers and duties under
37 this chapter. The commissioner of finance and the tax appeals tribunal
38 shall have power to subpoena and require the attendance of witnesses and
39 the production of books, papers and documents to secure information
40 pertinent to the performance of the duties of the commissioner or of the
41 tax appeals tribunal under this section and of the enforcement of this
42 chapter and to examine them in relation thereto, and to issue commis-
43 sions for the examination of witnesses who are out of the state or
44 unable to attend before the commissioner of finance or the tax appeals
45 tribunal or excused from attendance.
46 b. A justice of the supreme court either in court or at chambers shall
47 have power summarily to enforce by proper proceedings the attendance and
48 testimony of witnesses and the production and examination of books,
49 papers and documents called for by the subpoena of the commissioner of
50 finance or the tax appeals tribunal under this chapter.
51 c. Cross-reference; criminal penalties. For failure to obey subpoenas
52 or for testifying falsely, see section 11-4007 of this title; for
53 supplying false or fraudulent information, see section 11-4009 of this
54 title.
55 d. The officers who serve the summons or subpoena of the commissioner
56 of finance or the tax appeals tribunal and witnesses attending in
S. 8578 900
1 response thereto shall be entitled to the same fees as are allowed to
2 officers and witnesses in civil cases in courts of record, except as
3 herein otherwise provided. Such officers shall be the city sheriff and
4 his or her duly appointed deputies, or any officers or employees of the
5 department of finance or the tax appeals tribunal, designated to serve
6 such process.
7 § 11-1213 Interest and penalties. (a) Interest on underpayments. If
8 any amount of tax is not paid over or paid on or before the last date
9 prescribed for payment, without regard to any extension of time granted
10 for payment, interest on such amount at the rate set by the commissioner
11 of finance pursuant to subdivision (g) of this section, or, if no rate
12 is set, at the rate of seven and one-half percent per annum, shall be
13 paid for the period from such last date to the date of payment. In
14 computing the amount of interest to be paid, such interest shall be
15 compounded daily. Interest under this subdivision shall not be paid if
16 the amount thereof is less than one dollar.
17 (b) (1) Failure to file return. (A) In case of failure to file a
18 return under this chapter on or before the prescribed date, determined
19 with regard to any extension of time for filing, unless it is shown that
20 such failure is due to reasonable cause and not due to willful neglect,
21 there shall be added to the amount required to be shown as tax on such
22 return five percent of the amount of such tax if the failure is for not
23 more than one month, with an additional five percent for each additional
24 month or fraction thereof during which such failure continues, not
25 exceeding twenty-five percent in the aggregate.
26 (B) In the case of a failure to file a return of tax within sixty days
27 of the date prescribed for filing of such return, determined with regard
28 to any extension of time for filing, unless it is shown that such fail-
29 ure is due to reasonable cause and not due to willful neglect, the addi-
30 tion to tax under subparagraph (A) of this paragraph shall not be less
31 than the lesser of one hundred dollars or one hundred percent of the
32 amount required to be shown as tax on such return.
33 (C) For purposes of this paragraph, the amount of tax required to be
34 shown on the return shall be reduced by the amount of any part of the
35 tax which is paid on or before the date prescribed for payment of the
36 tax and by the amount of any credit against the tax which may be claimed
37 upon the return.
38 (2) Failure to pay tax shown on return. In case of failure to pay the
39 amount shown as tax on a return required to be filed under this chapter
40 on or before the prescribed date, determined with regard to any exten-
41 sion of time for payment, unless it is shown that such failure is due to
42 reasonable cause and not due to willful neglect, there shall be added to
43 the amount shown as tax on such return one-half of one percent of the
44 amount of such tax if the failure is not for more than one month, with
45 an additional one-half of one percent for each additional month or frac-
46 tion thereof during which such failure continues, not exceeding twenty-
47 five percent in the aggregate. For the purpose of computing the addition
48 for any month the amount of tax shown on the return shall be reduced by
49 the amount of any part of the tax which is paid on or before the begin-
50 ning of such month and by the amount of any credit against the tax which
51 may be claimed upon the return. If the amount of tax required to be
52 shown on a return is less than the amount shown as tax on such return,
53 this paragraph shall be applied by substituting such lower amount.
54 (3) Failure to pay tax required to be shown on return. In case of
55 failure to pay any amount in respect of any tax required to be shown on
56 a return required to be filed under this chapter which is not so shown,
S. 8578 901
1 including a determination made pursuant to section 11-1206 of this chap-
2 ter, within ten days of the date of a notice and demand therefor, unless
3 it is shown that such failure is due to reasonable cause and not due to
4 willful neglect, there shall be added to the amount of tax stated in
5 such notice and demand one-half of one percent of such tax if the fail-
6 ure is not for more than one month, with an additional one-half of one
7 percent for each additional month or fraction thereof during which such
8 failure continues, not exceeding twenty-five percent in the aggregate.
9 For the purpose of computing the addition for any month, the amount of
10 tax stated in the notice and demand shall be reduced by the amount of
11 any part of the tax which is paid before the beginning of such month.
12 (4) Limitations on additions. (A) With respect to any return, the
13 amount of the addition under paragraph one of this subdivision shall be
14 reduced by the amount of the addition under paragraph two of this subdi-
15 vision for any month to which an addition applies under both paragraphs
16 one and two. In any case described in subparagraph (B) of paragraph one
17 of this subdivision, the amount of the addition under such paragraph one
18 shall not be reduced below the amount provided in such subparagraph.
19 (B) With respect to any return, the maximum amount of the addition
20 permitted under paragraph three of this subdivision shall be reduced by
21 the amount of the addition under paragraph one of this subdivision,
22 determined without regard to subparagraph (B) of such paragraph one,
23 which is attributable to the tax for which the notice and demand is made
24 and which is not paid within ten days of such notice and demand.
25 (c) Underpayment due to negligence. (1) If any part of an underpay-
26 ment of tax is due to negligence or intentional disregard of this chap-
27 ter or any rules or regulations hereunder, but without intent to
28 defraud, there shall be added to the tax a penalty equal to five percent
29 of the underpayment.
30 (2) There shall be added to the tax, in addition to the amount deter-
31 mined under paragraph one of this subdivision, an amount equal to fifty
32 percent of the interest payable under subdivision (a) of this section
33 with respect to the portion of the underpayment described in such para-
34 graph one which is attributable to the negligence or intentional disre-
35 gard referred to in such paragraph one, for the period beginning on the
36 last date prescribed by law for payment of such underpayment, determined
37 without regard to any extension, and ending on the date of the assess-
38 ment of the tax, or, if earlier, the date of the payment of the tax.
39 (d) Underpayment due to fraud. (1) If any part of an underpayment of
40 tax is due to fraud, there shall be added to the tax a penalty equal to
41 fifty percent of the underpayment.
42 (2) There shall be added to the tax, in addition to the penalty deter-
43 mined under paragraph one of this subdivision, an amount equal to fifty
44 percent of the interest payable under subdivision (a) of this section
45 with respect to the portion of the underpayment described in such para-
46 graph one which is attributable to fraud, for the period beginning on
47 the last day prescribed by law for payment of such underpayment, deter-
48 mined without regard to any extension, and ending on the date of the
49 assessment of the tax, or, if earlier, the date of the payment of the
50 tax.
51 (3) The penalty under this subdivision shall be in lieu of any other
52 addition to tax imposed by subdivision (b) or (c) of this section.
53 (e) Additional penalty. Any person who, with fraudulent intent, shall
54 fail to pay any tax imposed by this chapter, or to make, render, sign or
55 certify any return, or to supply any information within the time
56 required by or under this chapter, shall be liable for a penalty of not
S. 8578 902
1 more than one thousand dollars, in addition to any other amounts
2 required under this chapter to be imposed, assessed and collected by the
3 commissioner of finance. The commissioner of finance shall have the
4 power, in his or her discretion, to waive, reduce or compromise any
5 penalty under this subdivision.
6 (f) The interest and penalties imposed by this section shall be paid
7 and disposed of in the same manner as other revenues from this chapter.
8 Unpaid interest and penalties may be enforced in the same manner as the
9 tax imposed by this chapter.
10 (g)(1) Authority to set interest rates. The commissioner of finance
11 shall set the rate of interest to be paid pursuant to subdivision (a) of
12 this section, but if no such rate of interest is set, such rate shall be
13 deemed to be set at seven and one-half percent per annum. Such rate
14 shall be the rate prescribed in paragraph two of this subdivision but
15 shall not be less than seven and one-half percent per annum. Any such
16 rate set by the commissioner of finance shall apply to taxes, or any
17 portion thereof, which remain or become due on or after the date on
18 which such rate becomes effective and shall apply only with respect to
19 interest computed or computable for periods or portions of periods
20 occurring in the period in which such rate is in effect.
21 (2) General rule. The rate of interest set under this subdivision
22 shall be the sum of (i) the federal short-term rate as provided under
23 paragraph three of this subdivision, plus (ii) seven percentage points.
24 (3) Federal short-term rate. For purposes of this subdivision:
25 (A) The federal short-term rate for any month shall be the federal
26 short-term rate determined by the United States secretary of the treas-
27 ury during such month in accordance with subsection (d) of section
28 twelve hundred seventy-four of the internal revenue code for use in
29 connection with section six thousand six hundred twenty-one of the
30 internal revenue code. Any such rate shall be rounded to the nearest
31 full percent, or, if a multiple of one-half of one percent, such rate
32 shall be increased to the next highest full percent.
33 (B) Period during which rate applies.
34 (i) In general. Except as provided in clause (ii) of this subpara-
35 graph, the federal short-term rate for the first month in each calendar
36 quarter shall apply during the first calendar quarter beginning after
37 such month.
38 (ii) Special rule for the month of September, nineteen hundred eight-
39 y-nine. The federal short-term rate for the month of April, nineteen
40 hundred eighty-nine shall apply with respect to setting the rate of
41 interest for the month of September, nineteen hundred eighty-nine.
42 (4) Publication of interest rate. The commissioner of finance shall
43 cause to be published in the City Record, and give other appropriate
44 general notice of, the interest rate to be set under this subdivision no
45 later than twenty days preceding the first day of the calendar quarter
46 during which such interest rate applies. The setting and publication of
47 such interest rate shall not be included within paragraph (a) of subdi-
48 vision five of section one thousand forty-one of the city charter of the
49 preceding municipality as it existed January first, nineteen hundred
50 ninety-four relating to the definition of a rule.
51 (h) Miscellaneous. (1) Officers of a racing corporation or association
52 shall be personally liable for the tax collected or required to be
53 collected under this chapter, and subject to the penalties imposed by
54 this section.
55 (2) The certificate of the commissioner of finance to the effect that
56 a tax has not been paid, that a return or bond has not been filed, or
S. 8578 903
1 that information has not been supplied pursuant to the provisions of
2 this chapter, shall be presumptive evidence thereof.
3 (3) Cross-reference: For criminal penalties, see chapter forty of this
4 title.
5 § 11-1214 Returns to be secret. a. Except in accordance with proper
6 judicial order, or as otherwise provided by law, it shall be unlawful
7 for the commissioner of finance or the tax appeals tribunal or any offi-
8 cer or employee of the department of finance to divulge or make known in
9 any manner any of the information relating to the business of any person
10 contained in any return required under this chapter. The officers
11 charged with the custody of such returns shall not be required to
12 produce any of them or evidence of anything contained in them in any
13 action or proceeding in any court, except on behalf of the commissioner
14 of finance in an action or proceeding under the provisions of this chap-
15 ter, or on behalf of any party to any action or proceeding under the
16 provisions of this chapter, when the returns or facts shown thereby are
17 directly involved in such action or proceeding, in either of which
18 events the courts may require the production of, and may admit in
19 evidence, so much of said returns or of the facts shown thereby, as are
20 pertinent to the action or proceeding and no more. The commissioner of
21 finance may, nevertheless, publish a copy or a summary of any determi-
22 nation or decision rendered after a formal hearing held pursuant to
23 section 11-1206 or 11-1207 of this chapter. Nothing in this section
24 shall be construed to prohibit the delivery to a person or such person's
25 duly authorized representative of a certified copy of any return filed
26 by such person nor to prohibit the publication of statistics so classi-
27 fied as to prevent the identification of particular returns and the
28 items thereof, or the inspection by the corporation counsel or other
29 legal representatives of the city, or by the district attorney of Rich-
30 mond county, of the return of any person who shall bring action to set
31 aside or review the tax based thereon, or against whom an action or
32 proceeding has been instituted for the collection of a tax or penalty.
33 Returns shall be preserved for three years and thereafter until the
34 commissioner of finance permits them to be destroyed.
35 b. (1) Any officer or employee of the city who willfully violates the
36 provisions of subdivision a of this section shall be dismissed from
37 office and be incapable of holding any public office in this city for a
38 period of five years thereafter.
39 (2) Cross-reference: For criminal penalties, see chapter forty of this
40 title.
41 c. This section shall be deemed a state statute for purposes of para-
42 graph (a) of subdivision two of section eighty-seven of the public offi-
43 cers law.
44 d. Notwithstanding anything in subdivision a of this section to the
45 contrary, if a taxpayer has petitioned the tax appeals tribunal for
46 administrative review as provided in section one hundred seventy of the
47 charter of the preceding municipality as it existed January first, nine-
48 teen hundred ninety-four, the commissioner of finance shall be author-
49 ized to present to the tribunal any report or return of such taxpayer,
50 or any information contained therein or relating thereto, which may be
51 material or relevant to the proceeding before the tribunal. The tax
52 appeals tribunal shall be authorized to publish a copy or a summary of
53 any decision rendered pursuant to section one hundred seventy-one of the
54 charter of the preceding municipality as it existed January first, nine-
55 teen hundred ninety-four.
S. 8578 904
1 § 11-1215 Notices and limitations of time. a. Any notice author-
2 ized or required under the provisions of this chapter may be given by
3 mailing the same to the person for whom it is intended in a postpaid
4 envelope addressed to such person at the address given in the last
5 return filed by such person pursuant to the provisions of this chapter
6 or in any application made by such person or if no return has been filed
7 or application made, then to such address as may be obtainable. The
8 mailing of such notice shall be presumptive evidence of the receipt of
9 the same by the person to whom addressed. Any period of time which is
10 determined according to the provisions of this chapter by the giving of
11 notice shall commence to run from the date of mailing of such notice.
12 b. The provisions of the civil practice law and rules or any other
13 law relative to limitations of time for the enforcement of a civil reme-
14 dy shall not apply to any proceeding or action taken by the city to
15 levy, appraise, assess, determine or enforce the collection of any tax
16 or penalty provided by this chapter. However, except in the case of a
17 wilfully false or fraudulent return with intent to evade the tax, no
18 assessment of additional tax shall be made after the expiration of more
19 than three years from the date of the filing of a return, provided, that
20 where no return has been filed as provided by law the tax may be
21 assessed at any time.
22 c. Where, before the expiration of the period prescribed under this
23 section for the assessment of an additional tax, a person has consented
24 in writing that such period be extended, the amount of such additional
25 tax due may be determined at any time within such extended period. The
26 period so extended may be further extended by subsequent consents in
27 writing made before the expiration of the extended period.
28 d. If any return, claim, statement, notice, application, or other
29 document required to be filed, or any payment required to be made, with-
30 in a prescribed period or on or before a prescribed date under authority
31 of any provision of this chapter is, after such period or such date,
32 delivered by United States mail to the commissioner of finance, the tax
33 appeals tribunal, bureau, office, officer or person with which or with
34 whom such document is required to be filed, or to which or to whom such
35 payment is required to be made, the date of the United States postmark
36 stamped on the envelope shall be deemed to be the date of delivery. This
37 subdivision shall apply only if the postmark date falls within the
38 prescribed period or on or before the prescribed date for the filing of
39 such document, or for making the payment, including any extension grant-
40 ed for such filing or payment, and only if such document or payment was
41 deposited in the mail, postage prepaid, properly addressed to the
42 commissioner of finance, bureau, office, officer or person with which or
43 with whom the document is required to be filed or to which or to whom
44 such payment is required to be made. If any document is sent by United
45 States registered mail, such registration shall be prima facie evidence
46 that such document was delivered to the commissioner of finance, the tax
47 appeals tribunal, bureau, office, officer or person to which or to whom
48 addressed, and the date of registration shall be deemed the postmark
49 date. The commissioner of finance or, where relevant, the tax appeals
50 tribunal is authorized to provide by regulation the extent to which the
51 provisions of the preceding sentence with respect to prima facie
52 evidence of delivery and the postmark date shall apply to certified
53 mail. Except as provided in subdivision f of this section, this subdivi-
54 sion shall apply in the case of postmarks not made by the United States
55 postal service only if and to the extent provided by regulation of the
56 commissioner of finance or, where relevant, the tax appeals tribunal.
S. 8578 905
1 e. When the last day prescribed under authority of this chapter,
2 including any extension of time, for performing any act falls on a
3 Saturday, Sunday or legal holiday in the state, the performance of such
4 act shall be considered timely if it is performed on the next succeeding
5 day which is not a Saturday, Sunday or legal holiday.
6 f. (1) Any reference in subdivision d of this section to the United
7 States mail shall be treated as including a reference to any delivery
8 service designated by the secretary of the treasury of the United States
9 pursuant to section seventy-five hundred two of the internal revenue
10 code and any reference in subdivision d of this section to a United
11 States postmark shall be treated as including a reference to any date
12 recorded or marked in the manner described in section seventy-five
13 hundred two of the internal revenue code by a designated delivery
14 service. If the commissioner of finance finds that any delivery service
15 designated by such secretary is inadequate for the needs of the city,
16 the commissioner of finance may withdraw such designation for purposes
17 of this title. The commissioner of finance may also designate additional
18 delivery services meeting the criteria of section seventy-five hundred
19 two of the internal revenue code for purposes of this title, or may
20 withdraw any such designation if the commissioner of finance finds that
21 a delivery service so designated is inadequate for the needs of the
22 city. Any reference in subdivision d of this section to the United
23 States mail shall be treated as including a reference to any delivery
24 service designated by the commissioner of finance and any reference in
25 subdivision d of this section to a United States postmark shall be
26 treated as including a reference to any date recorded or marked in the
27 manner described in section seventy-five hundred two of the internal
28 revenue code by a delivery service designated by the commissioner of
29 finance. Notwithstanding the provisions of this paragraph, any with-
30 drawal of designation or additional designation by the commissioner of
31 finance shall not be effective for purposes of service upon the tax
32 appeals tribunal, unless and until such withdrawal of designation or
33 additional designation is ratified by the president of the tax appeals
34 tribunal.
35 (2) Any equivalent of registered or certified mail designated by the
36 United States secretary of the treasury, or as may be designated by the
37 commissioner of finance pursuant to the same criteria used by such
38 secretary for such designations pursuant to section seventy-five hundred
39 two of the internal revenue code, shall be included within the meaning
40 of registered or certified mail as used in subdivision d of this
41 section. If the commissioner of finance finds that any equivalent of
42 registered or certified mail designated by such secretary or the commis-
43 sioner of finance is inadequate for the needs of the city, the commis-
44 sioner of finance may withdraw such designation for purposes of this
45 title. Notwithstanding the foregoing, any withdrawal of designation or
46 additional designation by the commissioner of finance shall not be
47 effective for purposes of service upon the tax appeals tribunal, unless
48 and until such withdrawal of designation or additional designation is
49 ratified by the president of the tax appeals tribunal.
50 § 11-1216 Disposition of revenues. All revenues resulting from the
51 imposition of the tax under this chapter at race meeting grounds or
52 enclosures located wholly within the city of Staten Island shall be
53 credited and deposited in the general fund of the city.
S. 8578 906
1 CHAPTER 13
2 CIGARETTE TAX
3 § 11-1301 Definitions. When used in this chapter the following words
4 shall have the meanings herein indicated:
5 1. "Cigarette." (a) Any roll for smoking made wholly or in part of
6 tobacco or any other substance wrapped in paper or in any other
7 substance not containing tobacco, and (b) any roll for smoking made
8 wholly or in part of tobacco wrapped in any substance containing tobacco
9 which, because of its appearance, the type of tobacco used in the
10 filler, or its packaging and labeling, is likely to be offered to, or
11 purchased by, consumers as a cigarette described in paragraph (a) of
12 this subdivision. However, a roll will not be considered to be a ciga-
13 rette for purposes of paragraph (b) of this subdivision if it is not
14 treated as a cigarette for federal excise tax purposes under the appli-
15 cable federal statute in effect on April first, two thousand eight.
16 "Cigarette" shall not include a research tobacco product.
17 2. "Person." Any individual, partnership, society, association, joint-
18 stock company, corporation, estate, receiver, trustee, assignee, referee
19 or any other person acting in a fiduciary or representative capacity,
20 whether appointed by a court or otherwise, and any combination of indi-
21 viduals.
22 3. "Sale or purchase." Any transfer of title or possession or both,
23 exchange or barter, conditional or otherwise, in any manner or by any
24 means whatsoever or any agreement therefor.
25 4. "Use." Any exercise of a right or power, actual or constructive,
26 and shall include but is not limited to the receipt, storage, or any
27 keeping or retention for any length of time, but shall not include
28 possession for sale by a dealer.
29 5. "Dealer." Any wholesale dealer or retail dealer as defined in
30 subdivisions six and seven of this section.
31 6. "Wholesale dealer." Any person who sells cigarettes or tobacco
32 products to retail dealers or other persons for purposes of resale only,
33 and any person who owns, operates or maintains one or more cigarette
34 vending machines in, at or upon premises owned or occupied by any other
35 person.
36 7. "Retail dealer." Any person other than a wholesale dealer engaged
37 in selling cigarettes or tobacco products. For the purposes of this
38 chapter, the possession or transportation at any one time of five thou-
39 sand or more cigarettes or little cigars, or more than fifty cigars, or
40 more than one pound of loose tobacco, smokeless tobacco, snus or shisha,
41 or any combination thereof, by any person other than a manufacturer, an
42 agent, a licensed wholesale dealer or a person delivering cigarettes or
43 tobacco products in the regular course of business for a manufacturer,
44 an agent or a licensed wholesale or retail dealer, shall be presumptive
45 evidence that such person is a retail dealer.
46 8. "Package." The individual package, box or other container in or
47 from which retail sales of cigarettes are normally made or intended to
48 be made.
49 9. "Agent." Any person authorized to purchase and affix adhesive or
50 meter stamps under this chapter who is designated as an agent by the
51 commissioner of finance.
52 10. "Comptroller." The comptroller of the city.
53 11. "Commissioner of finance." The commissioner of finance of the
54 city.
55 12. "City." The city of Staten Island.
S. 8578 907
1 13. "Tax appeals tribunal." The tax appeals tribunal established by
2 section one hundred sixty-eight of the charter of the preceding munici-
3 pality as it existed January first, nineteen hundred ninety-four.
4 14. "Cigar." Any roll of tobacco for smoking that is wrapped in leaf
5 tobacco or in any substance containing tobacco, with or without a tip or
6 mouthpiece. Cigar does not include a little cigar as defined in this
7 section.
8 15. "Little cigar." Any roll of tobacco for smoking that is wrapped in
9 leaf tobacco or in any substance containing tobacco and that weighs no
10 more than four pounds per thousand or has a cellulose acetate or other
11 integrated filter.
12 16. "Loose tobacco." Any product that consists of loose leaves or
13 pieces of tobacco that is intended for use by consumers in a pipe, roll-
14 your-own cigarette, or similar product or device.
15 17. "Smokeless tobacco." Any tobacco product that consists of cut,
16 ground, powdered, or leaf tobacco and that is intended to be placed in
17 the oral or nasal cavity.
18 18. "Snus." Any smokeless tobacco product marketed and sold as snus,
19 and sold in ready-to-use pouches or loose as a moist powder.
20 19. "Tobacco product." Any product which contains tobacco that is
21 intended for human consumption, including any component, part, or acces-
22 sory of such product. Tobacco product shall include, but not be limited
23 to, any cigar, little cigar, chewing tobacco, pipe tobacco, roll-your-
24 own tobacco, snus, bidi, snuff, shisha, or dissolvable tobacco product.
25 Tobacco product shall not include cigarettes or any product that has
26 been approved by the United States food and drug administration for sale
27 as a tobacco use cessation product or for other medical purposes and
28 that is being marketed and sold solely for such purposes. "Tobacco
29 products" shall not include research tobacco products.
30 20. "Shisha." Any product that contains tobacco and is smoked or
31 intended to be smoked in a hookah or water pipe.
32 21. "Research tobacco product." A tobacco product or cigarette that is
33 labeled as a research tobacco product, is manufactured for use in
34 research for health, scientific, or similar experimental purposes, is
35 exclusively used for such purposes by an accredited college, university
36 or hospital, or a researcher affiliated with an accredited college,
37 university or hospital, and is not offered for sale or sold to consumers
38 for any purpose.
39 § 11-1302 Imposition of tax. a. There is hereby imposed and shall
40 be paid a tax on:
41 1. All cigarettes possessed in the city for sale except as provided
42 in this section;
43 2. The use of all cigarettes in the city except as provided in this
44 section;
45 3. It is intended that the ultimate incidence of and liability for the
46 tax shall be upon the consumer, and that any agent, distributor or deal-
47 er who shall pay the tax to the commissioner of finance shall collect
48 the tax from the purchaser or consumer. Such tax shall be at the rate of
49 four cents for each ten cigarettes or fraction thereof, provided, howev-
50 er, that if a package of cigarettes contains more than twenty ciga-
51 rettes, the rate of tax on the cigarettes in such package in excess of
52 twenty shall be two cents for each five cigarettes or fraction thereof.
53 Provided further, however, that on and after July second, two thousand
54 two, such tax shall be at the rate of seventy-five cents for each ten
55 cigarettes or fraction thereof, provided, however, that if a package of
56 cigarettes contains more than twenty cigarettes, the rate of tax on the
S. 8578 908
1 cigarettes in such package in excess of twenty shall be thirty-eight
2 cents for each five cigarettes or fraction thereof. Such tax shall be
3 imposed only once on the same package of cigarettes.
4 b. The tax imposed by this section shall not apply to:
5 1. The use, otherwise than for sale, of four hundred cigarettes or
6 less brought into the city, on or in possession of, any person;
7 2. Cigarettes sold to the United States;
8 3. Cigarettes sold to or by a voluntary unincorporated organization
9 of the armed forces of the United States operating a place for the sale
10 of goods pursuant to regulations promulgated by the appropriate execu-
11 tive agency of the United States;
12 4. Cigarettes possessed in the city by any agent or wholesale dealer
13 for sale to a dealer outside the city or for sale and shipment to any
14 person in another state for use there, provided such agent or wholesale
15 dealer complies with the regulations relating thereto.
16 c. The tax imposed under this section shall be in addition to any and
17 all other taxes.
18 d. It shall be presumed that all sales or uses mentioned in this
19 section are subject to tax until the contrary is established, and the
20 burden of proof that a sale or use is not taxable under this section
21 shall be upon the vendor or the purchaser.
22 e. Except as provided in this section, the tax shall be advanced and
23 paid by the agent or distributor. The agent shall be liable for the
24 collection and payment of the tax to the commissioner of finance by
25 purchasing from the commissioner of finance adhesive stamps of such
26 design and denomination as may be prescribed by such commissioner,
27 subject to the approval of the state commissioner of taxation and
28 finance. The tax may also be paid by the use of such metering machines
29 as are prescribed by the commissioner of finance subject to the approval
30 of the state commissioner of taxation and finance.
31 f. Within twenty-four hours after liability for the tax on the use of
32 cigarettes accrues each person liable for the tax shall file with the
33 commissioner of finance a return in such form as the commissioner of
34 finance may prescribe, together with a remittance of the tax shown to be
35 due thereon.
36 g. Agents located within or without the city shall purchase stamps
37 and affix them in the manner prescribed to packages of cigarettes to be
38 sold within the city.
39 h. The amount of taxes advanced and paid by the agent or distributor
40 as provided in this section shall be added to and collected as part of
41 the sales price of the cigarettes.
42 i. The commissioner of finance, notwithstanding any other provision
43 of this chapter, may, subject to the approval of the state commissioner
44 of taxation and finance, provide by regulation that the tax imposed by
45 this section shall be collected without the use of stamps.
46 § 11-1302.1. Imposition of tax on tobacco products. a. In accordance
47 with section one hundred ten of the public housing law, an excise tax on
48 the sale of tobacco products is hereby imposed and shall be paid on all
49 tobacco products possessed in the city for sale, except as provided
50 under this section. It is intended that the ultimate incidence of and
51 liability for the tax shall be upon the consumer. Any dealer or distrib-
52 utor who pays the tax to the commissioner of finance shall collect the
53 tax from the purchaser or consumer. Such tax shall be at the rate of ten
54 percent of the price floor for a package of the specified category of
55 tobacco product, exclusive of sales tax, set forth in the following
56 table, which shall be consistent with the price floors described in
S. 8578 909
1 subdivision d of section 17-176.1 of the code of the preceding munici-
2 pality:
3 Tobacco Product Price floor Amount of OTP tax
4 (excluding OTP and (excluding sales tax)
5 sales taxes)
6 Cigar $8.00 per cigar sold $0.80 per cigar; for
7 individually; for a a package, $0.80 for
8 package, number of first cigar, plus
9 cigars multiplied by $0.175 for each
10 $1.75 plus $6.25 additional cigar
11 Little cigar $10.95 per pack of 20 $1.09 per pack
12 little cigars
13 Smokeless tobacco $8.00 per 1.2 oz. pack- $0.80 per 1.2 oz. plus
14 age plus $2.00 for each an additional $0.20 for
15 additional 0.3 oz. or each 0.3 oz. or any
16 any fraction thereof in fraction thereof in
17 excess of 1.2 oz. excess of 1.2 oz.
18 Snus $8.00 per 0.32 oz. pack- $0.80 per 0.32 oz.
19 age plus $2.00 for each plus an additional
20 additional 0.08 oz. or $0.20 for each 0.08 oz.
21 any fraction thereof in or any fraction thereof
22 excess of 0.32 oz. in excess of 0.32 oz.
23 Shisha $17.00 per 3.5 oz. pack- $1.70 per 3.5 oz. plus
24 age plus $3.40 for each an additional $0.34 for
25 additional 0.7 oz. or for each 0.7 oz. or any
26 any fraction thereof in fraction thereof in
27 excess of 3.5 oz. excess of 3.5 oz.
28 Loose tobacco $2.55 per 1.5 oz. pack- $0.25 per 1.5 oz. pack-
29 age plus $0.51 for each age plus an additional
30 additional 0.3 oz. or $0.05 for each 0.3 oz.
31 any fraction thereof or any fraction thereof
32 in excess of 1.5 oz. in excess of 1.5 oz.
33 b. The tax imposed hereunder shall not apply to:
34 1. The state of New York, or any public corporation, including a
35 public corporation created pursuant to agreement or compact with another
36 state or the Dominion of Canada, improvement district or other political
37 subdivision of the state where it is the purchaser, user or consumer;
38 2. The United States of America, in so far as it is immune from taxa-
39 tion;
40 3. The United Nations or other world-wide international organizations
41 of which the United States of America is a member;
42 4. Any corporation, or association, or trust, or community chest, fund
43 or foundation, organized and operated exclusively for religious, chari-
44 table, or educational purposes, or for the prevention of cruelty to
45 children or animals, no part of the net earnings of which inures to the
46 benefit of any private shareholder or individual, and no substantial
47 part of the activities of which is carrying on propaganda, or otherwise
48 attempting to influence legislation; provided, however, that nothing in
S. 8578 910
1 this paragraph shall include an organization operated for the primary
2 purpose of carrying on a trade or business for profit, whether or not
3 all of its profits are payable to one or more organizations described in
4 this paragraph; and
5 5. Tobacco products possessed in the city by any dealer for sale
6 outside the city or for sale and shipment to any person in another state
7 for use there, provided such dealer complies with the regulations relat-
8 ing thereto.
9 c. Nothing in subdivision b of this section shall exempt sales by any
10 shop or store operated by any college, university or other public or
11 private institution for higher education from the taxes described in
12 this section.
13 d. The tax imposed under this section shall be in addition to any and
14 all other taxes.
15 e. It shall be presumed that all sales mentioned in this section are
16 subject to tax until the contrary is established, and the burden of
17 proof that a sale is not taxable under this section shall be upon the
18 dealer or the purchaser.
19 f. 1. Except as provided in this subdivision, the tax shall be
20 advanced and paid by the wholesale dealer. The wholesale dealer shall be
21 liable for the collection and payment of the tax to the commissioner of
22 finance as required under subdivision g of this section. The commission-
23 er may require the wholesale dealer to keep tobacco products for which
24 the tax has not yet been paid separately from tobacco products for which
25 the tax has been paid. For purposes of this chapter, retention by the
26 wholesale dealer of any tobacco products beyond the time prescribed for
27 payment under this section, without having made the requisite payment,
28 or storing any such products in violation of any separation requirements
29 prescribed by the commissioner, shall be presumptive evidence that such
30 tobacco products are possessed in violation of the provisions of this
31 chapter.
32 2. Every retail dealer shall be liable for the tax on all tobacco
33 products in his or her possession at any time, upon which tax has not
34 been paid, and the failure of any retail dealer to produce and exhibit
35 to the commissioner of finance or such commissioner's duly authorized
36 representatives upon demand, an invoice by a licensed wholesale dealer
37 for any tobacco products in his or her possession, shall be presumptive
38 evidence the tax thereon has not been paid, that such retail dealer is
39 liable for the tax thereon, and the tobacco products are possessed in
40 violation of this chapter, unless evidence of such invoice or payment
41 shall later be produced.
42 g. 1. Each wholesale dealer shall file with the commissioner of
43 finance a return, on a form required by such commissioner, indicating
44 the amount of tax due pursuant to this section and any other information
45 the commissioner may require, on a monthly basis, or on such other regu-
46 lar interval as such commissioner may prescribe. Each wholesale dealer
47 shall file the return on the twentieth day of the month following the
48 end of the month or other interval covered by the return, unless the
49 commissioner of finance prescribes a greater number of days following
50 the end of the month or a different reporting interval. Each wholesale
51 dealer shall pay the amount of tax due upon filing the return unless the
52 commissioner prescribes a different date or time for such payment.
53 2. The commissioner of finance may:
54 (A) Authorize another person, including a distributor as defined in
55 subdivision twelve of section four hundred seventy of the tax law, who
S. 8578 911
1 is not a wholesale dealer, to advance and pay the tax imposed under this
2 section;
3 (B) Exempt wholesale dealers from the requirements of this subdivi-
4 sion, upon such conditions as may be imposed by such commissioner, if he
5 or she is satisfied the tax on the tobacco products has been or is being
6 advanced and paid by another wholesale dealer or a distributor author-
7 ized under this subdivision.
8 h. The amount of taxes advanced and paid by the wholesale dealer
9 pursuant to this section shall be added to and collected as part of the
10 sales price of the tobacco products.
11 § 11-1303 License. a. License required of wholesale and retail deal-
12 ers. 1. It shall be unlawful for a person to engage in business as a
13 wholesale or retail dealer without a license as prescribed in this
14 section or subchapter one of chapter two of title twenty of the code of
15 the preceding municipality, whichever is applicable.
16 2. It shall be unlawful for a person to permit any premises under such
17 person's control to be used by any other person in violation of para-
18 graph one of subdivision a of this section.
19 b. Application for license. 1. Wholesale tobacco license. In order to
20 obtain a license to engage in business as a wholesale dealer, a person
21 shall file application with the commissioner of finance for one license
22 for each place of business that he or she desires to have for the sale
23 of cigarettes or tobacco products in the city. Every application for a
24 wholesale tobacco license shall be made upon a form prescribed and
25 prepared by the commissioner of finance and shall set forth such infor-
26 mation as the commissioner shall require. The commissioner of finance
27 may, for cause, refuse to issue a wholesale tobacco license. Upon
28 approval of the application, the commissioner of finance shall grant and
29 issue to the applicant a wholesale tobacco license for each place of
30 business within the city set forth in the application. Wholesale tobacco
31 licenses shall not be assignable and shall be valid only for the persons
32 in whose names such licenses have been issued and for the transaction of
33 business in the places designated therein and shall at all times be
34 conspicuously displayed at the places for which issued.
35 2. Retail tobacco license. In order to obtain a license to engage in
36 business as a retail dealer, a person shall file application with the
37 commissioner of consumer affairs and worker protection in accordance
38 with the provisions of section 20-202 of the code of the preceding muni-
39 cipality.
40 c. Duplicate licenses. Whenever any license issued by the commissioner
41 of finance under the provisions of this section is defaced, destroyed or
42 lost, the commissioner of finance shall issue a duplicate license to the
43 holder of the defaced, destroyed or lost license upon the payment of a
44 fee of fifteen dollars. A duplicate retail dealer license may be
45 obtained from the commissioner of consumer and worker protection as
46 provided in section 20-204 of the code of the preceding municipality.
47 d. Suspension or revocation of licenses. (1) After a hearing, the
48 commissioner of finance may suspend or revoke a wholesale tobacco
49 license and the commissioner of consumer and worker protection, upon
50 notice from the commissioner of finance, may suspend or revoke a retail
51 tobacco license whenever the commissioner of finance finds that the
52 holder thereof has failed to comply with any of the provisions of this
53 chapter or any rules of the commissioner of finance prescribed, adopted
54 and promulgated under this chapter.
55 (2) The commissioner of finance may also suspend or revoke a wholesale
56 tobacco license in accordance with the requirements of any other
S. 8578 912
1 sections of this code or any rules promulgated thereunder which author-
2 izes the suspension or revocation of a wholesale tobacco license.
3 (3) The commissioner of consumer and worker protection may also
4 suspend or revoke a retail tobacco license in accordance with the
5 requirements of any other section of this code or any rules promulgated
6 thereunder which authorize suspension or revocation of a retail tobacco
7 license.
8 (4) Upon suspending or revoking any wholesale tobacco license, the
9 commissioner of finance shall direct the holder thereof to surrender to
10 the commissioner of finance immediately all wholesale tobacco licenses
11 or duplicates thereof issued to such holder and the holder shall surren-
12 der promptly all such licenses to the commissioner of finance as
13 directed. Before the commissioner of finance suspends or revokes a
14 wholesale tobacco license or notifies the commissioner of consumer and
15 worker protection of a finding of a violation of this chapter with
16 respect to a retail tobacco license pursuant to paragraph one of this
17 subdivision, the commissioner of finance shall notify the holder and the
18 holder shall be entitled to a hearing, if desired, if the holder, within
19 ninety days from the date of such notification, or, if the commissioner
20 of finance has established a conciliation procedure pursuant to section
21 11-124 of this title and the taxpayer has requested a conciliation
22 conference in accordance therewith, within ninety days from the mailing
23 of a conciliation decision or the date of the commissioner's confirma-
24 tion of the discontinuance of the conciliation proceeding, both (A)
25 serves a petition upon the commissioner of finance and (B) files a peti-
26 tion with the tax appeals tribunal for a hearing. After such hearing,
27 the commissioner of finance, good cause appearing therefor, may suspend
28 or revoke the wholesale tobacco license, and, in the case of a retail
29 tobacco license, notify the commissioner of consumer and worker
30 protection of a violation of this chapter or any rules promulgated ther-
31 eunder. Upon such notification, the commissioner of consumer and worker
32 protection may suspend or revoke a retail cigarette license as provided
33 in subdivision b of section 20-206 of the code of the preceding munici-
34 pality. The commissioner of finance may, by rule, provide for granting a
35 similar hearing to an applicant who has been refused a wholesale ciga-
36 rette license by the commissioner of finance.
37 e. Prohibited sales and purchases. No agent or dealer shall sell ciga-
38 rettes or tobacco products to an unlicensed wholesale or retail dealer,
39 or to a wholesale or retail dealer whose license has been suspended or
40 revoked.
41 No dealer shall purchase cigarettes or tobacco products from any
42 person other than a manufacturer or a licensed wholesale dealer.
43 f. Retail dealers. The commissioner of finance may, after hearing,
44 issue an order prohibiting a retail dealer from selling cigarettes, for
45 such period as the order shall specify, for failure to comply with any
46 of the provisions of this chapter or any rules or regulations of the
47 commissioner of finance prescribed, adopted and promulgated under this
48 chapter.
49 g. License fees; numbering and registering of licenses; term. 1. The
50 annual fee for a wholesale dealer's license shall be six hundred
51 dollars, and the annual fee for a retail dealer's license shall be as
52 provided in subdivision c of section 20-202 of the code of the preceding
53 municipality.
54 2. Wholesale tobacco licenses shall be regularly numbered and duly
55 registered.
S. 8578 913
1 3. Wholesale tobacco licenses shall expire on January thirty-first
2 next succeeding the date of issuance unless sooner suspended or revoked.
3 § 11-1304 Preparation and sale of stamps; commissions. a. The
4 commissioner of finance shall, subject to the approval of the state tax
5 commission, prescribe, prepare and furnish stamps of such denominations
6 and quantities as may be necessary for the payment of the tax imposed by
7 this chapter, and may, from time to time, provide for the issuance and
8 exclusive use of stamps of a new design and forbid the use of stamps of
9 any other design. Such stamps shall be in the form of a single stamp
10 for the payment of the tax imposed by this chapter or, in lieu thereof,
11 a joint single stamp to be prepared and issued by the state of New York
12 and the city for the payment of the tax imposed by this chapter and the
13 taxes imposed by article twenty of the tax law. The commissioner of
14 finance may make such arrangements with the state tax commission for the
15 method of acquiring and the manner of sharing the costs of such joint
16 single stamps as he or she deems appropriate. The commissioner of
17 finance, subject to the approval of the state commissioner of taxation
18 and finance, shall make provisions for the sale of such stamps at such
19 places as he or she may deem necessary, and may appoint fiscal agents
20 for such purpose.
21 b. The commissioner of finance may appoint wholesale dealers of ciga-
22 rettes and any other person within or without the city as agents to
23 affix stamps to be used in paying the tax hereby imposed, but an agent
24 shall at all times have the right to appoint the person in his or her
25 employ who is to affix the stamps to any cigarettes under the agent's
26 control. Whenever the commissioner of finance shall sell, consign or
27 deliver to any such agent any such stamps, such agent shall be entitled
28 to receive as compensation for his or her services and expenses in
29 affixing such stamps, and to retain out of the moneys to be paid by the
30 agent for such stamps, a commission on the par value thereof. The
31 commissioner of finance is hereby authorized to prescribe a schedule of
32 commissions not exceeding five per centum, allowable to such agent for
33 affixing such stamps; provided, however, that the commissioner of
34 finance may authorize commissions to agents and temporary agents not
35 exceeding ten per centum for a special period not exceeding fifteen days
36 immediately following the enactment of this chapter to cover the initial
37 stamping of packages of cigarettes. Such schedule shall be uniform for
38 each type and denomination of stamp used, and may be on a graduated
39 scale with respect to the number of stamps purchased. In the event that
40 a joint stamp is issued, the commissions allowed shall be determined
41 jointly by the state commissioner of taxation and finance and the
42 commissioner of finance and shall be based on the full par value of such
43 stamp. The extent to which the city and the state of New York shall
44 bear the expense of such commissions shall be determined by agreement
45 between the commissioner of taxation and finance and the commissioner
46 of finance. The commissioner of finance may in his or her discretion
47 permit an agent to pay for such stamps within thirty days after the date
48 of sale, consignment or delivery of such stamps to such agents, and may
49 require any such agent to file with the commissioner of finance a bond,
50 issued by a surety company approved by the superintendent of insurance
51 as to solvency and responsibility and authorized to transact business in
52 the state, in such amounts as the commissioner of finance may fix, to
53 secure the payment of any sums from such agent pursuant to this chapter.
54 c. The commissioner of finance may redeem unused stamps lawfully in
55 the possession of any person. No person shall sell or offer for sale
56 any stamp issued under this chapter, except by written permission of the
S. 8578 914
1 commissioner of finance. The commissioner of finance may prescribe
2 rules and regulations concerning refunds, sales of stamps and redemp-
3 tions under the provisions of this chapter.
4 d. (1) Except as provided in this subdivision, it shall be unlawful
5 for any person to sell, offer for sale, possess or transport any affixed
6 or unaffixed false, altered or counterfeit cigarette tax stamps,
7 imprints or impressions.
8 (2) Paragraph one of this subdivision shall not apply to:
9 (A) a person, other than a retail dealer, in possession of twenty or
10 fewer affixed tax stamps;
11 (B) public officers or employees in the performance of their official
12 duties requiring possession or control of affixed or unaffixed false,
13 altered or counterfeit cigarette tax stamps, imprints or impressions; or
14 (C) any person authorized by the commissioner of finance or the
15 commissioner of the department of taxation and finance of the state of
16 New York to perform law enforcement functions.
17 § 11-1305 Affixation and cancellation of stamps; presumptions. a.
18 Each agent shall affix to each package of cigarettes stamps evidencing
19 the payment of tax imposed by this chapter and shall cancel such stamps
20 prior to delivery of such cigarettes to any dealer in the city, unless
21 stamps have been affixed to such packages of cigarettes and cancelled
22 before such agent received them.
23 b. Each dealer, other than an agent, in the city shall immediately
24 upon the receipt of any cigarettes at his or her place of business mark
25 in ink on each unopened box, carton or other container of such ciga-
26 rettes the word "received" and the year, month, day and hour of such
27 receipt and shall affix his or her signature thereto or shall mark them
28 in any other manner prescribed by the commissioner of finance. In addi-
29 tion, each retail dealer shall, within twenty-four hours after receipt
30 of any cigarettes at his or her place of business and prior to exposing
31 for sale or sale by such retail dealer of such cigarettes, open such
32 box, carton or other container and, unless such stamps have been previ-
33 ously affixed, immediately notify the dealer from whom he or she
34 purchased such cigarettes and arrange for the replacement by the dealer
35 of such cigarettes by cigarettes with such stamps affixed within twen-
36 ty-four hours.
37 c. Stamps shall be cancelled in the manner prescribed by regulation.
38 d. Whenever any cigarettes are found in the place of business of a
39 dealer without the stamps affixed and cancelled, or not marked as having
40 been received within the preceding twenty-four hours, the prima facie
41 presumption shall arise that such cigarettes are kept therein in
42 violation of the provisions of this chapter.
43 e. Stamps shall be affixed to each package of cigarettes of an aggre-
44 gate denomination not less than the amount of the tax upon the contents
45 therein, and shall be affixed in such manner as to be visible to the
46 purchaser.
47 § 11-1306 Possession and transportation of unstamped cigarettes.
48 Every person who shall possess or transport upon the public highways,
49 roads or streets of this city more than four hundred cigarettes in
50 unstamped packages, shall be required to have in his or her actual
51 possession invoices or delivery tickets for such cigarettes. All such
52 invoices or delivery tickets shall show the true name and address of the
53 consignor or seller, the true name and address of the consignee or
54 purchaser and the quantity and brands of the cigarettes transported.
55 The absence of such invoices or delivery tickets shall be prima facie
S. 8578 915
1 evidence that such person is a dealer in cigarettes in the city and
2 subject to the provisions of this chapter.
3 § 11-1307 Records to be kept; examination. a. 1. At the time of
4 delivering cigarettes to any person in the city, each agent or wholesale
5 dealer shall make a true duplicate invoice showing the date of delivery,
6 the number of packages and the number of cigarettes contained therein in
7 each shipment of cigarettes delivered, and the name of the purchaser to
8 whom delivery is made, and shall retain the same for a period of three
9 years subject to the use and inspection of the commissioner of finance.
10 Each dealer shall procure and retain invoices showing the number of
11 packages and the number of cigarettes contained therein in each shipment
12 of cigarettes received by such dealer, the date thereof, and the name of
13 the shipper, and shall retain the same for a period of three years
14 subject to the use and inspection of the commissioner of finance.
15 2. At the time of delivering tobacco products to any person in the
16 city, each wholesale dealer shall make a true duplicate invoice showing
17 the date of delivery, the number of packages and the number of tobacco
18 products contained therein as well as any tobacco products not in pack-
19 ages in each shipment of tobacco products delivered, and the name of the
20 purchaser to whom delivery is made and shall retain the same for a peri-
21 od of three years subject to the use and inspection of the commissioner
22 of finance. Each dealer shall procure and retain invoices showing the
23 number of packages and the number of tobacco products contained therein
24 as well as any tobacco products not in packages in each shipment of
25 tobacco products received by such dealer, the date thereof, and the name
26 of the shipper, and shall retain the same for a period of three years
27 subject to the use and inspection of the commissioner of finance.
28 3. Each dealer shall retain any other records and in such form as may
29 be required by the commissioner of finance indicating proof of the
30 payment of the tax imposed under section 11-1302.1 of this chapter. Any
31 failure to provide such records upon request by the commissioner of
32 finance or such commissioner's duly authorized representatives shall be
33 presumptive evidence that the dealer has violated the provisions of this
34 chapter.
35 b. The commissioner of finance by regulation may provide that whenever
36 cigarettes or tobacco products are shipped into the city, the railroad
37 company, express company, trucking company, or carrier transporting any
38 shipment thereof shall file with the commissioner of finance a copy of
39 the freight bill within ten days after the delivery in the city of each
40 shipment.
41 c. All dealers shall maintain and keep for a period of three years
42 such other records of cigarettes or tobacco products received or sold
43 within the city as may be required by the commissioner of finance. All
44 wholesale dealers shall maintain and keep for a period of three years
45 such other records of cigarettes or tobacco products delivered within
46 the city.
47 d. Without limiting the powers granted the commissioner of consumer
48 and worker protection pursuant to title twenty of the code of the
49 preceding municipality and any rules promulgated thereunder, the commis-
50 sioner of finance or the commissioner's duly authorized representatives
51 are hereby authorized to examine the books, papers, invoices and other
52 records, and stock of cigarettes or tobacco products in and upon any
53 premises where the same are placed, stored and sold, and equipment of
54 any such agent or dealer pertaining to the sale and delivery of ciga-
55 rettes or tobacco products taxable under this chapter. To verify the
56 accuracy of the tax imposed and assessed by this chapter, each such
S. 8578 916
1 person is hereby directed and required to give to the commissioner of
2 finance or the commissioner's duly authorized representatives, the
3 means, facilities and opportunity for such examinations as are herein
4 provided for and required.
5 e. The commissioner of finance shall investigate any failure to pay
6 the tax required by this chapter or any other failure to comply with
7 this chapter or the rules or regulations promulgated thereunder, and
8 shall take the necessary steps to enforce compliance therewith.
9 § 11-1308 General powers of the commissioner of finance. In addition
10 to the powers granted to the commissioner of finance in this chapter, he
11 or she is hereby authorized and empowered:
12 1. To make, adopt and amend rules and regulations appropriate to the
13 carrying out of this chapter and the purposes thereof; and to require
14 the filing of reports by agents and/or dealers;
15 2. To prescribe the method and the means to be used in the cancella-
16 tion of stamps;
17 3. To fix the denominations and the method of sale of stamps;
18 4. To delegate his or her powers to a deputy or other employee or
19 employees of the department of finance;
20 5. To extend, for cause shown, the time for filing any return or
21 reports for a period not exceeding thirty days; and to compromise
22 disputed claims in connection with the taxes hereby imposed;
23 6. To assess, determine, revise and adjust the taxes imposed under
24 this chapter;
25 7. To request information from the state commissioner of taxation and
26 finance, the treasury department of the United States or the taxing
27 officials of any other state or city that imposes a similar tax to any
28 tax imposed by this chapter, and to afford information to such commis-
29 sion, department or other taxing official, any other provision of this
30 chapter to the contrary notwithstanding;
31 8. To enter into an arrangement with the state commissioner of taxa-
32 tion and finance with respect to cooperative collection, auditing or
33 administration of the taxes imposed by this chapter and the taxes
34 imposed by article twenty of the tax law of the state of New York.
35 9. To prescribe forms to be filled out by the vendor or purchaser, or
36 both, in each instance in which a sale is made by an agent or wholesale
37 dealer to a person outside the state or the city or to a dealer in the
38 city for purposes of resale outside the state or the city.
39 10. To appoint any dealer as a temporary agent to buy and affix
40 stamps for a period not in excess of fifteen days.
41 11. In furtherance of the purposes of paragraph three of subdivision
42 a of section 11-1302 of this chapter, to provide by appropriate regu-
43 lation for the maintenance of such differentials in wholesale and retail
44 prices of cigarettes sold by any vendor, other than the manufacturer, so
45 as to reflect the amounts of tax attributable to the tar and nicotine
46 content of cigarettes sold. In so doing he or she may use and consider
47 the factory price of various brands of cigarettes. In addition, the
48 commissioner may consider the mode or method by which retail sales are
49 effected and limit his or her regulations so as to affect any one or
50 more or all of such modes or methods.
51 § 11-1309 Notifying taxpayers of assessments. a. The owner of any
52 lot, piece or parcel of land in the city of Staten Island or any person
53 interested in such lot, piece or parcel, may file with the bureau of
54 city collections a statement containing a brief description of such
55 land, together with the section, block and lot number thereof, or such
56 other designation as at the time is established by the department of
S. 8578 917
1 finance, and a statement of the applicant's interest therein, together
2 with a written request that such lot, piece or parcel of land be regis-
3 tered in such bureau, in the name of the applicant. In such statement
4 the applicant shall designate a post office address to which notifica-
5 tions addressed to such applicant shall be sent. A brief description of
6 such lot, piece or parcel of land corresponding to the description ther-
7 eof in the statement so filed, together with the name of the applicant
8 and his or her post office address and the date of such application,
9 shall thereupon be registered in the offices of such bureau as herein-
10 after provided.
11 b. As soon as any assessment for a local improvement shall have been
12 confirmed, including assessments confirmed by a court of record, and the
13 list thereof shall have been entered and filed in the bureau of city
14 collections, such assessment list shall be examined and thereupon, with-
15 in twenty days after such entry there shall be mailed a notice addressed
16 to each person in whose name any lot, piece or parcel of land, affected
17 by such assessment, is registered, at the post office address registered
18 in the records of such bureau, which notice shall contain the brief
19 description of the lot, piece or parcel of land registered in the name
20 of the person to whom such notice is addressed, together with the amount
21 assessed thereon, date of entry, and title of the improvement for which
22 such assessment is made, and a statement of the rate of interest or
23 penalty imposed for the nonpayment of such assessment, and the date from
24 which the interest or penalty will be computed. Failure to comply with
25 the provisions of this section, however, shall in no manner affect the
26 validity or collectibility of any assessment heretofore or hereafter
27 confirmed, nor shall any claim arise or exist against the comptroller,
28 the commissioner of finance, the city collector or any officer of the
29 city by reason of such failure.
30 c. The city collector shall for the purpose of this section provide
31 appropriate records for each section of the city as the same shall
32 appear upon the tax maps of the city.
33 § 11-1310 Determination of tax. If any person fails to pay the tax, or
34 to file a return required by this chapter or if a return, when filed, is
35 insufficient and the maker fails to file a corrected or sufficient
36 return within ten days after the same may be required by notice from the
37 commissioner of finance, the commissioner of finance shall determine the
38 amount of tax due from such information as may be obtainable or on the
39 basis of external indices, such as number of cigarettes purchased or
40 sold, number of tobacco products purchased or sold, stock on hand,
41 volume of sales by similar dealers or other factors. Notice of such
42 determination shall be given to the person liable for the payment of the
43 tax. Such determination shall finally and irrevocably fix the tax unless
44 the person against whom it is assessed shall, within ninety days of the
45 giving of such notice, or, if the commissioner of finance has estab-
46 lished a conciliation procedure pursuant to section 11-124 of this title
47 and the person liable for the tax has requested a conciliation confer-
48 ence in accordance therewith, within ninety days from the mailing of a
49 conciliation decision or the date of the commissioner's confirmation of
50 the discontinuance of the conciliation proceeding, both (1) serves a
51 petition upon the commissioner of finance and (2) files a petition with
52 the tax appeals tribunal for a hearing, or unless the commissioner of
53 finance shall of his or her own motion redetermine such tax. Such hear-
54 ing and any appeal to the tax appeals tribunal sitting en banc from the
55 decision rendered in such hearing shall be conducted in the manner and
56 subject to the requirements prescribed by the tax appeals tribunal
S. 8578 918
1 pursuant to sections one hundred sixty-eight through one hundred seven-
2 ty-two of the charter of the preceding municipality as it existed Janu-
3 ary first, nineteen hundred ninety-four. After such hearing the tax
4 appeals tribunal shall give notice of its decision to the person liable
5 for the tax and to the commissioner of finance. A decision of the tax
6 appeals tribunal sitting en banc shall be reviewable for error, illegal-
7 ity, unconstitutionality or any other reason whatsoever by a proceeding
8 under article seventy-eight of the civil practice law and rules if
9 instituted by the person against whom the tax was assessed within four
10 months after the giving of the notice of such tax appeals tribunal deci-
11 sion; provided however, that if such decision regards the tax imposed
12 under section 11-1302.1 of this chapter, such proceeding must be insti-
13 tuted by the person against whom the tax was assessed within thirty days
14 after the giving of the notice of such tax appeals tribunal decision.
15 Such proceeding shall not be instituted by a person liable for the tax
16 unless the amount of any tax sought to be reviewed with interest and
17 penalties thereon, if any, shall have first been deposited with the
18 commissioner of finance and an undertaking filed with the commissioner
19 of finance in such amount and with such sureties as a justice of the
20 supreme court shall approve, to the effect that if such proceeding be
21 dismissed or the tax confirmed, such person will pay all costs and
22 charges which may accrue in the prosecution of the proceeding.
23 § 11-1311 Refunds. a. In the manner provided in this subdivision the
24 commissioner of finance shall refund, without interest, any tax, inter-
25 est or penalty erroneously, illegally or unconstitutionally collected or
26 paid. In addition, whenever any cigarettes upon which stamps have been
27 affixed have been sold and shipped to a dealer outside the city for sale
28 there or to any person in another state for use there, or have become
29 unfit for use and consumption or unsalable, or have been destroyed, the
30 dealer shall be entitled to a refund of the amount of tax paid, less the
31 applicable commission, with respect to such cigarettes.
32 In any event no refund shall be granted unless application to the
33 commissioner of finance therefor is made within two years after the
34 stamps were affixed to such cigarettes or the tax was paid, except if a
35 person has consented in writing to an extension of the period for
36 assessment of additional tax pursuant to subdivision c of section
37 11-1315 of this chapter, and such consent is given within the two-year
38 period for making a refund application provided in this subdivision, the
39 period for making a refund application shall not expire prior to six
40 months after the expiration of the period within which an assessment
41 could be made pursuant to such consent or any extension thereof.
42 Whenever a refund is made or denied by the commissioner of finance,
43 the commissioner shall state his or her reasons therefor and give notice
44 thereof to the applicant in writing. A person shall not be entitled to a
45 hearing in connection with such application for a refund if such person
46 has already had a hearing or had been given the opportunity of a hearing
47 as provided in section 11-1310 of this chapter or has failed to avail
48 himself or herself of the remedies therein provided. No refund shall be
49 made of a tax, interest or penalty paid pursuant to a determination of
50 the commissioner of finance as provided in section 11-1310 of this chap-
51 ter, unless the tax appeals tribunal, after a hearing as in said section
52 provided or the commissioner of finance, of his or her own motion, shall
53 have reduced the tax or penalty, or it shall have been established in a
54 proceeding, pursuant to article seventy-eight of the civil practice law
55 and rules that such determination was erroneous, illegal, unconstitu-
56 tional or otherwise improper, in which event a refund without interest
S. 8578 919
1 shall be made as provided upon the determination of such proceeding. Any
2 determination of the commissioner of finance denying a refund pursuant
3 to this subdivision shall be final and irrevocable unless the applicant
4 for such refund, within ninety days from the mailing of notice of such
5 determination, or, if the commissioner of finance has established a
6 conciliation procedure pursuant to section 11-124 of this title and the
7 applicant has requested a conciliation conference in accordance there-
8 with, within ninety days from the mailing of a conciliation decision or
9 the date of the commissioner's confirmation of the discontinuance of the
10 conciliation proceeding, both (1) serves a petition upon the commission-
11 er of finance and (2) files a petition with the tax appeals tribunal for
12 a hearing.
13 Such petition for a refund made as provided in this subdivision shall
14 be deemed an application for a revision of any tax, penalty or interest
15 complained of. Such hearing and any appeal to the tax appeals tribunal
16 sitting en banc from the decision rendered in such hearing shall be
17 conducted in the manner and subject to the requirements prescribed by
18 the tax appeals tribunal pursuant to sections one hundred sixty-eight
19 through one hundred seventy-two of the charter of the preceding munici-
20 pality. After such hearing, the tax appeals tribunal shall give notice
21 of its decision to the applicant and to the commissioner of finance.
22 The applicant shall be entitled to maintain a proceeding under article
23 seventy-eight of the civil practice law and rules to review a decision
24 of the tax appeals tribunal sitting en banc, provided, however, that
25 such proceeding is instituted within four months after such decision,
26 provided however, that if such decision regards the tax imposed under
27 section 11-1302.1 of this chapter, such proceeding must be instituted
28 within thirty days after such decision, and provided, further, in the
29 case of an application by a person liable for the tax, that a final
30 determination of tax due was not previously made, and that an undertak-
31 ing shall first be filed by such person with the commissioner of finance
32 in such amount and with such sureties as a justice of the supreme court
33 shall approve, to the effect that if such proceeding be dismissed or the
34 tax confirmed such person will pay all costs and charges which may
35 accrue in the prosecution of such proceeding.
36 b. If the commissioner of finance is satisfied that any dealer is
37 entitled to a refund the commissioner shall issue to such dealer stamps
38 of sufficient value to cover the refund or to make such refund.
39 § 11-1312 Reserves. In cases where the taxpayer has applied for a
40 refund and has instituted proceedings under article seventy-eight of the
41 civil practice law and rules to review a determination adverse to the
42 taxpayer on his or her application for refund or has deposited the
43 amount of tax assessed in connection with proceedings under section
44 11-1310 of this chapter, the comptroller shall set up appropriate
45 reserves to meet any decision adverse to the city.
46 § 11-1313 Remedies exclusive. The remedies provided by sections
47 11-1310 and 11-1311 of this chapter shall be the exclusive remedies
48 available to any person for the review of tax liability imposed by this
49 chapter; and no determination or proposed determination of tax or deter-
50 mination on an application for refund by the commissioner of finance,
51 nor any decision by the tax appeals tribunal or any of its administra-
52 tive law judges, shall be enjoined or reviewed by an action for declara-
53 tory judgment, an action for money had and received, or by any legal or
54 equitable action or proceeding other than, in the case of a decision by
55 the tax appeals tribunal sitting en banc, a proceeding under article
56 seventy-eight of the civil practice law and rules; provided, however,
S. 8578 920
1 that a taxpayer may proceed by declaratory judgment if the taxpayer
2 institutes suit within thirty days after a deficiency assessment is made
3 and pays the amount of the deficiency assessment to the commissioner of
4 finance prior to the institution of such suit and posts a bond for costs
5 as provided in section 11-1310 of this chapter.
6 § 11-1314 Proceedings to recover tax. a. Whenever any person shall
7 fail to pay any tax, penalty or interest imposed by this chapter as
8 herein provided, the corporation counsel shall, upon the request of the
9 commissioner of finance, bring or cause to be brought an action to
10 enforce the payment of the same on behalf of the city in any court of
11 the state of New York or of any other state or of the United States.
12 If, however, the commissioner of finance in his or her discretion
13 believes that a taxpayer subject to the provisions of this chapter is
14 about to cease business, leave the state or remove or dissipate the
15 assets out of which the tax, interest or penalties might be satisfied
16 and that any such tax, interest or penalty will not be paid when due, he
17 or she may declare such tax, interest or penalty to be immediately due
18 and payable and may issue a warrant immediately.
19 b. In addition to all other remedies for the collection of any taxes,
20 penalties or interest due under the provisions of this chapter, the
21 commissioner of finance may with respect to any tax imposed under
22 section 11-1302 of this chapter or any penalties or interest related
23 thereto issue a warrant, directed to the city sheriff commanding the
24 sheriff to levy upon and sell the real and personal property of the
25 person liable for the tax which may be found within the city, for the
26 payment of the amount thereof, with any penalties and interest and the
27 cost of executing the warrant, and to return such warrant to the commis-
28 sioner of finance and to pay to the commissioner the money collected by
29 virtue thereof within sixty days after the receipt of such warrant. The
30 city sheriff shall within five days after the receipt of the warrant
31 file with the county clerk a copy thereof, and thereupon such clerk
32 shall enter in the judgment docket the name of the person mentioned in
33 the warrant and the amount of the taxes, penalty and interest for which
34 the warrant is issued and the date when such copy is filed. Thereupon
35 the amount of such warrant shall become a lien upon the title to and
36 interest in real and personal property of the person against whom the
37 warrant is issued. The city sheriff shall then proceed upon the warrant
38 in the same manner and with like effect as that provided by law in
39 respect to executions issued against property upon judgments of a court
40 of record, and for services in executing the warrant the city sheriff
41 shall be entitled to the same fees which he or she may collect in the
42 same manner. In the discretion of the commissioner of finance a warrant
43 of like terms, force and effect may be issued and directed to any offi-
44 cer or employee of the department of finance, and in the execution ther-
45 eof such officer or employee shall have all the powers conferred by law
46 upon sheriffs, but shall be entitled to no fee or compensation in excess
47 of the actual expenses paid in the performance of such duty. If a
48 warrant is returned not satisfied in full, the commissioner of finance
49 may from time to time issue new warrants and shall have the same reme-
50 dies to enforce the amount due thereunder as if the city had recovered
51 judgment therefor and execution thereon had been returned unsatisfied.
52 c. The commissioner of finance, if he or she finds that the interests
53 of the city will not thereby be jeopardized, and upon such conditions as
54 the commissioner of finance may require, may release any property from
55 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
56 tions to tax, penalties and interest filed pursuant to subdivision b of
S. 8578 921
1 this section, and such release or vacating of the warrant may be
2 recorded in the office of any recording officer in which such warrant
3 has been filed. The clerk shall thereupon cancel and discharge as of the
4 original date of docketing the vacated warrant.
5 § 11-1315 Notices and limitations of time. a. Any notice author-
6 ized or required under the provisions of this chapter may be given by
7 mailing the same to the person for whom it is intended in a postpaid
8 envelope addressed to such person at the address given in the last
9 return filed by such person pursuant to the provisions of this chapter
10 or in any application made by such person or, if no return has been
11 filed or application made, then to such address as may be obtainable.
12 The mailing of such notice shall be presumptive evidence of the receipt
13 of the same by the person to whom addressed. Any period of time which
14 is determined according to the provisions of this chapter by the giving
15 of notice shall commence to run from the date of mailing of such notice.
16 b. The provisions of the civil practice law and rules or any other
17 law relative to limitations of time for the enforcement of a civil reme-
18 dy shall not apply to any proceeding or action taken by the city to
19 levy, appraise, assess, determine or enforce the collection of any tax,
20 interest or penalty provided by this chapter. However, except in the
21 case of a wilfully false or fraudulent return with intent to evade the
22 tax, no assessment of additional tax shall be made after the expiration
23 of more than three years from the date of the filing of a return,
24 provided, that where no return has been filed as provided by law the tax
25 may be assessed at any time.
26 c. Where, before the expiration of the period prescribed herein for
27 the assessment of an additional tax, a person has consented in writing
28 that such period be extended, the amount of such additional tax due may
29 be determined at any time within such extended period. The period so
30 extended may be further extended by subsequent consents in writing made
31 before the expiration of the extended period.
32 d. If any return, claim, statement, notice, application, or other
33 document required to be filed, or any payment required to be made, with-
34 in a prescribed period or on or before a prescribed date under authority
35 of any provision of this chapter is, after such period or such date,
36 delivered by United States mail to the commissioner of finance, the tax
37 appeals tribunal, bureau, office, officer or person with which or with
38 whom such document is required to be filed, or to which or to whom such
39 payment is required to be made, the date of the United States postmark
40 stamped on the envelope shall be deemed to be the date of delivery. This
41 subdivision shall apply only if the postmark date falls within the
42 prescribed period or on or before the prescribed date for the filing of
43 such document, or for making the payment, including any extension grant-
44 ed for such filing or payment, and only if such document or payment was
45 deposited in the mail, postage prepaid, properly addressed to the
46 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
47 cer or person with which or with whom the document is required to be
48 filed or to which or to whom such payment is required to be made. If any
49 document is sent by United States registered mail, such registration
50 shall be prima facie evidence that such document was delivered to the
51 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
52 cer or person to which or to whom addressed, and the date of registra-
53 tion shall be deemed the postmark date. The commissioner of finance or,
54 where relevant, the tax appeals tribunal is authorized to provide by
55 regulation the extent to which the provisions of this subdivision with
56 respect to prima facie evidence of delivery and the postmark date shall
S. 8578 922
1 apply to certified mail. Except as provided in subdivision f of this
2 section, this subdivision shall apply in the case of postmarks not made
3 by the United States postal service only if and to the extent provided
4 by regulation of the commissioner of finance or, where relevant, the tax
5 appeals tribunal.
6 e. When the last day prescribed under authority of this chapter,
7 including any extension of time, for performing any act falls on a
8 Saturday, Sunday or legal holiday in the state, the performance of such
9 act shall be considered timely if it is performed on the next succeeding
10 day which is not a Saturday, Sunday or legal holiday.
11 f. (1) Any reference in subdivision d of this section to the United
12 States mail shall be treated as including a reference to any delivery
13 service designated by the secretary of the treasury of the United States
14 pursuant to section seventy-five hundred two of the internal revenue
15 code and any reference in subdivision d of this section to a United
16 States postmark shall be treated as including a reference to any date
17 recorded or marked in the manner described in section seventy-five
18 hundred two of the internal revenue code by a designated delivery
19 service. If the commissioner of finance finds that any delivery service
20 designated by such secretary is inadequate for the needs of the city,
21 the commissioner of finance may withdraw such designation for purposes
22 of this title. The commissioner of finance may also designate additional
23 delivery services meeting the criteria of section seventy-five hundred
24 two of the internal revenue code for purposes of this title, or may
25 withdraw any such designation if the commissioner of finance finds that
26 a delivery service so designated is inadequate for the needs of the
27 city. Any reference in subdivision d of this section to the United
28 States mail shall be treated as including a reference to any delivery
29 service designated by the commissioner of finance and any reference in
30 subdivision d of this section to a United States postmark shall be
31 treated as including a reference to any date recorded or marked in the
32 manner described in section seventy-five hundred two of the internal
33 revenue code by a delivery service designated by the commissioner of
34 finance, provided, however, any withdrawal of designation or additional
35 designation by the commissioner of finance shall not be effective for
36 purposes of service upon the tax appeals tribunal, unless and until such
37 withdrawal of designation or additional designation is ratified by the
38 president of the tax appeals tribunal.
39 (2) Any equivalent of registered or certified mail designated by the
40 United States secretary of the treasury, or as may be designated by the
41 commissioner of finance pursuant to the same criteria used by such
42 secretary for such designations pursuant to section seventy-five hundred
43 two of the internal revenue code, shall be included within the meaning
44 of registered or certified mail as used in subdivision d of this
45 section. If the commissioner of finance finds that any equivalent of
46 registered or certified mail designated by such secretary or the commis-
47 sioner of finance is inadequate for the needs of the city, the commis-
48 sioner of finance may withdraw such designation for purposes of this
49 title, provided, however, any withdrawal of designation or additional
50 designation by the commissioner of finance shall not be effective for
51 purposes of service upon the tax appeals tribunal, unless and until such
52 withdrawal of designation or additional designation is ratified by the
53 president of the tax appeals tribunal.
54 § 11-1317 Penalties and interest. a. (1) Any person failing to pay a
55 tax payable under section 11-1302 of this chapter when due shall be
56 subject to a penalty of fifty per centum of the amount of tax due, but
S. 8578 923
1 the commissioner of finance, if satisfied that the delay was excusable,
2 may remit all or any part of such penalty. Such penalty shall be paid
3 and disposed of in the same manner as other revenues under this chapter.
4 Unpaid penalties may be enforced in the same manner as the tax imposed
5 by section 11-1302 of this chapter.
6 (2) Any person failing to pay a tax payable under section 11-1302.1 of
7 this chapter when due shall be subject to a penalty of three hundred per
8 centum of the amount of tax due, but the commissioner of finance, if
9 satisfied that the delay was excusable, may remit all or any part of
10 such penalty. Such penalty shall be paid and disposed of in the same
11 manner as other revenues from the tax imposed under section 11-1302.1 of
12 this chapter. Unpaid penalties may be enforced in the same manner as the
13 tax imposed by section 11-1302.1 of this chapter.
14 b. (1) In addition to any other penalty imposed by this section, the
15 commissioner of finance may (a) impose a penalty of not more than one
16 hundred dollars for each two hundred cigarettes or fraction thereof in
17 excess of one thousand cigarettes in unstamped or unlawfully stamped
18 packages in the possession or under the control of any person and (b)
19 impose a penalty of not more than two hundred dollars for each ten
20 affixed or unaffixed false, altered or counterfeit cigarette tax stamps,
21 imprints or impressions, or fraction thereof, in excess of one hundred
22 affixed or unaffixed false, altered or counterfeit cigarette tax stamps,
23 imprints or impressions in the possession or under the control of any
24 person. Such penalty shall be determined as provided in section 11-1310
25 of this chapter, and may be reviewed only pursuant to such section. Such
26 penalty may be enforced in the same manner as the tax imposed by this
27 chapter. The commissioner of finance, in his or her discretion, may
28 remit all or part of such penalty. Such penalty shall be paid and
29 disposed of in the same manner as other revenues under this chapter.
30 (2) The penalties imposed by this paragraph may be imposed by the
31 commissioner of finance in addition to any other penalty imposed by this
32 section, but in lieu of the penalties imposed by subparagraph (a) of
33 paragraph one of this subdivision: (a) not less than thirty dollars but
34 not more than two hundred dollars for each two hundred cigarettes, or
35 fraction thereof, in excess of one thousand cigarettes but less than or
36 equal to five thousand cigarettes in unstamped or unlawfully stamped
37 packages knowingly in the possession or knowingly under the control of
38 any person; (b) not less than seventy-five dollars but not more than two
39 hundred dollars for each two hundred cigarettes, or fraction thereof, in
40 excess of five thousand cigarettes but less than or equal to twenty
41 thousand cigarettes in unstamped or unlawfully stamped packages knowing-
42 ly in the possession or knowingly under the control of any person; and
43 (c) not less than one hundred dollars but not more than two hundred
44 dollars for each two hundred cigarettes, or fraction thereof, in excess
45 of twenty thousand cigarettes in unstamped or unlawfully stamped pack-
46 ages, knowingly in the possession or knowingly under the control of any
47 person. Such penalty shall be determined as provided in section 11-1310
48 of this chapter, and may be reviewed only pursuant to such section. Such
49 penalty may be enforced in the same manner as the tax imposed by this
50 chapter. The commissioner of finance, in his or her discretion, may
51 remit all or part of such penalty. Such penalty shall be paid and
52 disposed of in the same manner as other revenues under this chapter.
53 c. (1) The possession within the city of more than four hundred ciga-
54 rettes in unstamped or unlawfully stamped packages shall be presumptive
55 evidence that such cigarettes are subject to tax as provided by this
56 chapter.
S. 8578 924
1 (2) Nothing in this section shall apply to common or contract carriers
2 or warehousemen while engaged in lawfully transporting or storing
3 unstamped packages of cigarettes as merchandise, nor to any employee of
4 such carrier or warehouseman acting within the scope of his or her
5 employment, nor to public officers or employees in the performance of
6 their official duties requiring possession or control of unstamped or
7 unlawfully stamped packages of cigarettes, nor to temporary incidental
8 possession by employees or agents of persons lawfully entitled to
9 possession, nor to persons whose possession is for the purpose of aiding
10 police officers in performing their duties.
11 d. (1) If any amount of tax is not paid on or before the last date
12 prescribed for payment, without regard to any extension of time granted
13 for payment, interest on such amount at the rate set by the commissioner
14 of finance pursuant to paragraph two of this subdivision, or, if no rate
15 is set, at the rate of seven and one-half percent per annum, shall be
16 paid for the period from such last date to the date of payment. In
17 computing the amount of interest to be paid, such interest shall be
18 compounded daily. Interest under this subdivision shall not be paid if
19 the amount thereof is less than one dollar. The interest imposed by this
20 subdivision shall be paid and disposed of in the same manner as other
21 revenues from this chapter. Unpaid interest may be enforced in the same
22 manner as the tax imposed by this chapter.
23 (2) (A) The commissioner of finance shall set the rate of interest to
24 be paid pursuant to paragraph one of this subdivision, but if no such
25 rate of interest is set, such rate shall be deemed to be set at seven
26 and one-half percent per annum. Such rate shall be the rate prescribed
27 in subparagraph (B) of this paragraph but shall not be less than seven
28 and one-half percent per annum. Any such rate set by the commissioner of
29 finance shall apply to taxes, or any portion thereof, which remain or
30 become due on or after the date on which such rate becomes effective and
31 shall apply only with respect to interest computed or computable for
32 periods or portions of periods occurring in the period in which such
33 rate is in effect.
34 (B) General rule. The rate of interest set under this subdivision
35 shall be the sum of (i) the federal short-term rate as provided under
36 paragraph three of this subdivision, plus (ii) seven percentage points.
37 (3) Federal short-term rate. For purposes of this subdivision:
38 (A) The federal short-term rate for any month shall be the federal
39 short-term rate determined by the United States secretary of the treas-
40 ury during such month in accordance with subsection (d) of section
41 twelve hundred seventy-four of the internal revenue code for use in
42 connection with section six thousand six hundred twenty-one of the
43 internal revenue code. Any such rate shall be rounded to the nearest
44 full percent, or, if a multiple of one-half of one percent, such rate
45 shall be increased to the next highest full percent.
46 (B) Period during which rate applies.
47 (i) In general. Except as provided in clause (ii) of this subpara-
48 graph, the federal short-term rate for the first month in each calendar
49 quarter shall apply during the first calendar quarter beginning after
50 such month.
51 (ii) Special rule for the month of September, nineteen hundred eight-
52 y-nine. The federal short-term rate for the month of April, nineteen
53 hundred eighty-nine shall apply with respect to setting the rate of
54 interest for the month of September, nineteen hundred eighty-nine.
55 (4) Publication of interest rate. The commissioner of finance shall
56 cause to be published in the City Record, and give other appropriate
S. 8578 925
1 general notice of, the interest rate to be set under this subdivision no
2 later than twenty days preceding the first day of the calendar quarter
3 during which such interest rate applies. The setting and publication of
4 such interest rate shall not be included within paragraph (a) of subdi-
5 vision five of section one thousand forty-one of the charter of the
6 preceding municipality as it existed January first, nineteen hundred
7 ninety-four relating to the definition of a rule.
8 e. Cross-reference: For criminal penalties, see chapter forty of this
9 title.
10 § 11-1318 Disposition of revenues. a. All revenues resulting from the
11 imposition of the tax under section 11-1302 of this chapter shall be
12 paid into the treasury of the city and shall be credited to and deposit-
13 ed in the general fund of the city, except that, after the payment of
14 refunds with respect to such tax, effective on and after July second,
15 two thousand two, forty-six and one-half percent and, effective on and
16 after April first, two thousand three, forty-six percent of such reven-
17 ues, including taxes, interest and penalties, collected or received
18 shall be paid to the state comptroller.
19 (b) All revenues resulting from the imposition of the tax under
20 section 11-1302.1 of this chapter during a fiscal year, including any
21 interest and penalties, shall be paid into the treasury of the city in
22 accordance with section one hundred twelve of the public housing law,
23 and shall be payable from the city to the New York city housing authori-
24 ty in such fiscal year.
25 § 11-1319 Construction and enforcement. Section 11-1302 and the
26 provisions of this chapter related thereto shall be construed and
27 enforced in conformity with chapter two hundred thirty-five of the laws
28 of nineteen hundred fifty-two. Section 11-1302.1 and the provisions of
29 this chapter related thereto shall be construed and enforced in conform-
30 ity with subdivision e of section one hundred ten and sections one
31 hundred eleven, one hundred twelve and one hundred thirteen of the
32 public housing law.
33 CHAPTER 14
34 TAX ON TRANSFER OF TAXICAB LICENSES
35 § 11-1401 Definitions. When used in this chapter the following terms
36 shall mean or include:
37 1. "City." The city of Staten Island.
38 2. "Commissioner of finance." The commissioner of finance of the
39 city of Staten Island.
40 3. "Comptroller." The comptroller of the city of Staten Island.
41 4. "Consideration." The total price paid or agreed to be paid for
42 the transfer of a taxicab license or interest therein, whether paid or
43 agreed to be paid in money, property, or any other thing of value,
44 including the cancellation or discharge of an indebtedness or obli-
45 gation, without any deduction whatsoever.
46 5. "Person." An individual, partnership, society, association,
47 joint-stock company, corporation, estate, receiver, trustee, assignee,
48 referee or any other person acting in a fiduciary or representative
49 capacity, whether appointed by a court or otherwise, any combination of
50 individuals, and any other form of unincorporated enterprise owned or
51 conducted by two or more persons.
52 6. "Taxi and limousine commission." The city of Staten Island taxi
53 and limousine commission.
S. 8578 926
1 7. "Taxicab." Any motor vehicle carrying passengers for hire in the
2 city, duly licensed as a taxicab by the taxi and limousine commission,
3 and permitted to accept hails from passengers in the street.
4 8. "Taxicab license." A license issued by the taxi and limousine
5 commission to operate a taxicab.
6 9. "Taxpayer." Any person subject to tax under this chapter.
7 10. "Transfer." Any transfer of interest, whether or not such inter-
8 est constitutes title, or possession, or both, exchange or barter,
9 rental, lease, or license to use, conditional or otherwise, in any
10 manner or by any means whatsoever for a consideration, or any agreement
11 therefor.
12 11. "Transferee." The person to whom a taxicab license or interest
13 therein is transferred, in a transfer as defined in subdivision ten of
14 this section.
15 12. "Transferor." The person who transfers a taxicab license or
16 interest pursuant to this chapter, in a transfer as defined in subdivi-
17 sion ten of this section.
18 13. "Tax appeals tribunal." The tax appeals tribunal established by
19 section one hundred sixty-eight of the charter of the preceding munici-
20 pality as it existed January first, nineteen hundred ninety-four.
21 § 11-1402 Imposition of tax. a. On and after March twenty-first,
22 two thousand seventeen, there is hereby imposed and there shall be paid
23 a tax on each transfer of a taxicab license or interest therein, at the
24 rate of one-half percent of the consideration given for such transfer.
25 b. Where there is a transfer of the economic interest in a taxicab
26 license or interest therein, effected by the transfer of shares of stock
27 of a corporation which hold such taxicab license or interest therein or
28 by the transfer of an interest or interests in a partnership or associ-
29 ation which holds such taxicab license or interest therein, such trans-
30 fer of shares of stock or of an interest or interests in a partnership
31 or association shall be treated as a transfer of the taxicab license or
32 interest therein, and shall be subject to the tax imposed by subdivision
33 a of this section.
34 c. Notwithstanding any other provision of this chapter, the tax
35 imposed hereby shall not apply to a transfer made pursuant to a bona
36 fide written contract or agreement made and executed prior to July
37 first, nineteen hundred eighty, provided such contract or agreement is
38 registered with the taxi and limousine commission prior to July first,
39 nineteen hundred eighty, and provided further that one or more payments
40 were made pursuant to such contract or agreement on or before June twen-
41 tieth, nineteen hundred eighty.
42 d. Where a taxicab or any other property is transferred to a trans-
43 feree in conjunction with the transfer of a taxicab license or interest
44 therein, the tax imposed by this section shall be computed on the total
45 consideration for the transfer of such license or interest therein and
46 the taxicab or other property so transferred, less the fair market value
47 of such taxicab or other property.
48 e. The tax imposed by this chapter shall be in addition to any and
49 all other taxes.
50 § 11-1403 Payment of tax. The tax imposed by this chapter shall be
51 paid by the transferee to the taxi and limousine commission, as agent of
52 the commissioner of finance, at the time of approval of such transfer by
53 the taxi and limousine commission, but in no event later than thirty
54 days following the transfer. The transferor shall also be liable for the
55 payment of such tax at such time in the event that the amount of tax due
56 is not paid by the transferee. Notwithstanding any other provision of
S. 8578 927
1 law to the contrary, no transfer of a taxicab license or interest there-
2 in shall be approved or effective until the tax imposed by this chapter
3 has been paid. All moneys received as such payments by the taxi and
4 limousine commission during any day shall be transmitted to the commis-
5 sioner of finance at the close of business on such day or at such other
6 time as the commissioner of finance may require.
7 § 11-1404 Returns. a. A joint return shall be filed by both the
8 transferee and the transferor. Such return shall be filed at the time of
9 payment of any tax imposed pursuant to this chapter, and such filing
10 shall be accomplished by delivering the return to the taxi and limousine
11 commission for transmittal to the commissioner of finance. The commis-
12 sioner of finance shall prescribe the form of the return and the infor-
13 mation which it shall contain. The return shall be signed under oath by
14 both the transferee and the transferor. Where either the transferee or
15 the transferor has failed to sign the return, it shall be accepted as a
16 return, but the party who has failed to sign the return or file a sepa-
17 rate return shall be subject to the penalties applicable to a person who
18 has failed to file a return, and the period of limitations for assess-
19 ment of tax or of additional tax shall not apply to such party.
20 b. Returns shall be preserved for three years and thereafter until the
21 commissioner of finance permits them to be destroyed.
22 c. The commissioner of finance may require amended returns to be filed
23 within twenty days after notice and to contain the information specified
24 in the notice.
25 d. If a return required by this chapter is not filed, or if a return,
26 when filed, is incorrect or insufficient on its face, the commissioner
27 of finance shall take the necessary steps to enforce the filing of such
28 a return or of a corrected return.
29 § 11-1405 Exemptions. a. The tax imposed under this chapter shall not
30 be imposed on any transaction by or with the following:
31 1. The state of New York, or any of its agencies, instrumentalities,
32 public corporations, including a public corporation created pursuant to
33 agreement or compact with another state or Canada, or political subdivi-
34 sions where it is the purchaser, user or consumer;
35 2. The United States of America, and any of its agencies and instru-
36 mentalities insofar as it is immune from taxation where it is the
37 purchaser, user or consumer;
38 3. The United Nations or other international organizations of which
39 the United States of America is a member; and
40 4. Any corporation, or association, or trust, or community chest, fund
41 or foundation, organized and operated exclusively for religious, chari-
42 table, or educational purposes, or for the prevention of cruelty to
43 children or animals, and no part of the net earnings of which inures to
44 the benefit of any private shareholder or individual, and no substantial
45 part of the activities of which is carrying on propaganda, or otherwise
46 attempting to influence legislation; provided, however, that nothing in
47 this paragraph shall include an organization operated for the primary
48 purpose of carrying on a trade or business for profit, whether or not
49 all of its profits are payable to one or more organizations described in
50 this subdivision.
51 b. The tax imposed by this chapter shall not apply to the transfer of
52 a taxicab license or interest therein by means of a lease, license or
53 other rental arrangement, where the term of such lease, license or other
54 rental arrangement, including the maximum period for which it can be
55 extended or renewed, does not exceed six months.
S. 8578 928
1 § 11-1406 Determination of tax. If a return required by this chapter
2 is not filed, or if a return when filed is incorrect or insufficient,
3 the amount of tax due shall be determined by the commissioner of finance
4 from external indices and such other information as may be obtainable.
5 Notice of such determination shall be given to the person liable for the
6 tax. Such determination shall finally and irrevocably fix the tax unless
7 the person against whom it is assessed, within ninety days after the
8 giving of notice of such determination, or, if the commissioner of
9 finance has established a conciliation procedure pursuant to section
10 11-124 of this title and the taxpayer has requested a conciliation
11 conference in accordance therewith, within ninety days from the mailing
12 of a conciliation decision or the date of the commissioner's confirma-
13 tion of the discontinuance of the conciliation proceeding, both (1)
14 serves a petition upon the commissioner of finance and (2) files a peti-
15 tion with the tax appeals tribunal for a hearing, or unless the commis-
16 sioner of finance of his or her own motion shall redetermine the same.
17 Such hearing and any appeal to the tax appeals tribunal sitting en banc
18 from the decision rendered in such hearing shall be conducted in the
19 manner and subject to the requirements prescribed by the tax appeals
20 tribunal pursuant to sections one hundred sixty-eight through one
21 hundred seventy-two of the charter of the preceding municipality as it
22 existed January first, nineteen hundred ninety-four. After such hearing
23 the tax appeals tribunal shall give notice of its decision to the person
24 against whom the tax is assessed and to the commissioner of finance. A
25 decision of the tax appeals tribunal sitting en banc shall be reviewable
26 for error, illegality or unconstitutionality or any other reason whatso-
27 ever by a proceeding under article seventy-eight of the civil practice
28 law and rules if application therefor is made to the supreme court by
29 the person against whom the tax was assessed within four months after
30 the giving of the notice of such tax appeals tribunal decision. A
31 proceeding under article seventy-eight of the civil practice law and
32 rules shall not be instituted by a taxpayer unless: (a) the amount of
33 any tax sought to be reviewed, with penalties and interest thereon, if
34 any, shall be first deposited with the commissioner of finance and there
35 shall be filed with the commissioner of finance an undertaking, issued
36 by a surety company authorized to transact business in this state and
37 approved by the superintendent of insurance of this state as to solvency
38 and responsibility, in such amount and with such sureties as a justice
39 of the supreme court shall approve, to the effect that if such proceed-
40 ing be dismissed or the tax confirmed, the taxpayer will pay all costs
41 and charges which may accrue in the prosecution of the proceeding; or
42 (b) at the option of the taxpayer such undertaking filed with the
43 commissioner of finance may be in a sum sufficient to cover the taxes,
44 penalties and interest thereon stated in such decision plus the costs
45 and charges which may accrue against it in the prosecution of the
46 proceeding, in which event the taxpayer shall not be required to deposit
47 such taxes, penalties and interest as a condition precedent to the
48 application.
49 § 11-1407 Refunds. a. In the manner provided in this section the
50 commissioner of finance shall refund or credit, without interest, any
51 tax, penalty or interest erroneously, illegally or unconstitutionally
52 collected or paid if application to the commissioner of finance for such
53 refund shall be made within one year from the payment thereof. Whenever
54 a refund is made or denied by the commissioner of finance, the commis-
55 sioner shall state his or her reason therefor and give notice thereof to
56 the taxpayer in writing. Such application may be made by the transferee
S. 8578 929
1 or transferor who has actually paid the tax. The commissioner of
2 finance may, in lieu of any refund required to be made, allow credit
3 therefor on payments due from the applicant.
4 b. Any determination of the commissioner of finance denying a refund
5 or credit pursuant to subdivision a of this section shall be final and
6 irrevocable unless the applicant for such refund or credit, within nine-
7 ty days from the mailing of notice of such determination, or, if the
8 commissioner of finance has established a conciliation procedure pursu-
9 ant to section 11-124 of this title and the applicant has requested a
10 conciliation conference in accordance therewith, within ninety days from
11 the mailing of a conciliation decision or the date of the commissioner's
12 confirmation of the discontinuance of the conciliation proceeding, both
13 (1) serves a petition upon the commissioner of finance and (2) files a
14 petition with the tax appeals tribunal for a hearing. Such petition for
15 a refund or credit, made pursuant to this section, shall be deemed an
16 application for a revision of any tax, penalty or interest complained
17 of. Such hearing and any appeal to the tax appeals tribunal sitting en
18 banc from the decision rendered in such hearing shall be conducted in
19 the manner and subject to the requirements prescribed by the tax appeals
20 tribunal pursuant to sections one hundred sixty-eight through one
21 hundred seventy-two of the charter of the preceding municipality as it
22 existed January first, nineteen hundred ninety-four. After such hearing,
23 the tax appeals tribunal shall give notice of its decision to the appli-
24 cant and to the commissioner of finance. The applicant shall be entitled
25 to review a decision of the tax appeals tribunal sitting en banc by a
26 proceeding pursuant to article seventy-eight of the civil practice law
27 and rules, provided such proceeding is instituted within four months
28 after the giving of notice of such decision, and provided, in the case
29 of an application by a taxpayer, that a final determination of tax due
30 was not previously made. Such a proceeding shall not be instituted by a
31 taxpayer unless an undertaking is filed with the commissioner of finance
32 in such amount and with such sureties as a justice of the supreme court
33 shall approve to the effect that if such proceeding be dismissed or the
34 tax confirmed, the taxpayer will pay all costs and charges which may
35 accrue in the prosecution of such proceeding.
36 c. A person shall not be entitled to a revision, refund or credit
37 under this section of a tax, or penalty which had been determined to be
38 due pursuant to the provisions of section 11-1406 of this chapter where
39 such person has had a hearing or an opportunity for a hearing, as
40 provided in said section, or has failed to avail himself or herself of
41 the remedies therein provided. No refund or credit shall be made of a
42 tax, interest or penalty paid after a determination by the commissioner
43 of finance made pursuant to section 11-1406 of this chapter unless it be
44 found that such determination was erroneous, illegal or unconstitutional
45 or otherwise improper, by the tax appeals tribunal after a hearing, or
46 on the commissioner's own motion, or, is such tax appeals tribunal
47 affirms in whole or in part the determination of the commissioner of
48 finance, in a proceeding under article seventy-eight of the civil prac-
49 tice law and rules, pursuant to the provisions of said section, in which
50 event refund or credit without interest shall be made of the tax, inter-
51 est or penalty found to be overpaid.
52 § 11-1408 Reserves. In cases where the transferee or transferor has
53 applied for a refund and has instituted a proceeding under article
54 seventy-eight of the civil practice law and rules to review a determi-
55 nation adverse to the transferee or transferor on his or her application
S. 8578 930
1 for refund, the comptroller shall set up appropriate reserves to meet
2 any decisions adverse to the city.
3 § 11-1409 Remedies exclusive. The remedies provided by sections
4 11-1406 and 11-1407 of this chapter shall be the exclusive remedies
5 available to any person for the review of tax liability imposed by this
6 chapter; and no determination or proposed determination of tax or deter-
7 mination on any application for refund by the commissioner of finance,
8 nor any decision by the tax appeals tribunal or any of its administra-
9 tive law judges shall be enjoined or reviewed by an action for declara-
10 tory judgment, an action for money had and received or by any action or
11 proceeding other than, in the case of a decision by the tax appeals
12 tribunal sitting en banc, a proceeding in the nature of a certiorari
13 proceeding under article seventy-eight of the civil practice law and
14 rules; provided, however, that a taxpayer may proceed by declaratory
15 judgment if the taxpayer institutes suit within thirty days after a
16 deficiency assessment is made and pays the amount of the deficiency
17 assessment to the commissioner of finance prior to the institution of
18 such suit and posts a bond for costs as provided in section 11-1406 of
19 this chapter.
20 § 11-1410 Proceedings to recover tax. a. Whenever any transferee or
21 transferor shall fail to pay any tax, penalty or interest imposed by
22 this chapter as herein provided, the corporation counsel shall, upon the
23 request of the commissioner of finance bring or cause to be brought an
24 action to enforce the payment of the same on behalf of the city of
25 Staten Island in any court of the state of New York or of any other
26 state or of the United States. If, however, the commissioner of finance
27 in his or her discretion believes that any such transferee or transferor
28 subject to the provisions of this chapter is about to cease business,
29 leave the state or remove or dissipate the assets out of which the tax
30 or penalty might be satisfied, and that any such tax or penalty will not
31 be paid when due, the commissioner may declare such tax or penalty to be
32 immediately due and payable and may issue a warrant immediately.
33 b. As an additional or alternate remedy, the commissioner of finance
34 may issue a warrant, directed to the city sheriff commanding the sheriff
35 to levy upon and sell the real and personal property of the transferee
36 or transferor or other person liable for the tax which may be found
37 within the city, for the payment of the amount thereof, with any penalty
38 and interest, and the cost of executing the warrant, and to return such
39 warrant to the commissioner of finance and to pay to the commissioner
40 the money collected by virtue thereof within sixty days after the
41 receipt of such warrant. The city sheriff shall within five days after
42 the receipt of the warrant file with the county clerk a copy thereof,
43 and thereupon such clerk shall enter in the judgment docket the name of
44 the person mentioned in the warrant and the amount of the tax, penalty
45 and interest for which the warrant is issued and the date when such copy
46 is filed. Thereupon the amount of such warrant so docketed shall become
47 a lien upon the title to and the interest in real and personal property
48 of the person against whom the warrant is issued. The city sheriff shall
49 then proceed upon the warrant in the same manner, and with like effect,
50 as that provided by law in respect to executions issued against property
51 upon judgments of a court of record and for services in executing the
52 warrant the sheriff shall be entitled to the same fees, which he or she
53 may collect in the same manner. In the discretion of the commissioner of
54 finance a warrant of like terms, force and effect may be issued and
55 directed to an officer or employee of the department of finance, and in
56 the execution thereof such officer or employee shall have all the powers
S. 8578 931
1 conferred by law upon sheriffs, but shall be entitled to no fee or
2 compensation in excess of the actual expenses paid in the performance of
3 such duty. If a warrant is returned not satisfied in full, the commis-
4 sioner of finance may from time to time issue new warrants and shall
5 also have the same remedies to enforce the amount due thereunder as if
6 the city had recovered judgment therefor and execution thereon had been
7 returned unsatisfied.
8 c. Whenever there is made a sale, transfer or assignment in bulk or
9 any part of the whole of a stock of merchandise or of fixtures, or
10 merchandise and of fixtures pertaining to the conducting of the business
11 of the seller, transferor or assignor, otherwise than in the ordinary
12 course of trade and in the regular prosecution of said business, the
13 purchaser, transferee or assignee shall at least ten days before taking
14 possession of such merchandise, fixtures, or merchandise and fixtures,
15 or paying therefor, notify the commissioner of finance by registered
16 mail of the proposed sale and of the price, terms and conditions thereof
17 whether or not the seller, transferor or assignor, has represented to,
18 or informed the purchaser, transferee or assignee that it owes any tax
19 pursuant to this chapter and whether or not the purchaser, transferee or
20 assignee has knowledge that such taxes are owing, and whether any such
21 taxes are in fact owing.
22 d. Whenever, the purchaser, transferee or assignee shall fail to give
23 notice to the commissioner of finance as required by subdivision c of
24 this section, or whenever the commissioner of finance shall inform the
25 purchaser, transferee or assignee that a possible claim for such tax or
26 taxes exists, any sums of money, property or choses in action, or other
27 consideration, which the purchaser, transferee or assignee is required
28 to transfer over to the seller or assignor shall be subject to a first
29 priority right and lien for any such taxes theretofore or thereafter
30 determined to be due from the seller, transferor or assignor to the
31 city, and the purchaser, transferee or assignee is forbidden to transfer
32 to the seller, transferor or assignor any such sums of money, property
33 or choses in action to the extent of the amount of the city's claim. For
34 failure to comply with the provisions of this subdivision, the purchas-
35 er, transferee or assignee shall be personally liable for the payment to
36 the city of any such taxes theretofore or thereafter determined to be
37 due to the city from the seller, transferor or assignor, and such
38 liability may be assessed and enforced in the same manner as the liabil-
39 ity for tax under this chapter.
40 e. The commissioner of finance, if he or she finds that the interests
41 of the city will not thereby be jeopardized, and upon such conditions as
42 the commissioner of finance may require, may release any property from
43 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
44 tions to tax, penalties and interest filed pursuant to subdivision b of
45 this section, and such release or vacating of the warrant may be
46 recorded in the office of any recording officer in which such warrant
47 has been filed. The clerk shall thereupon cancel and discharge as of the
48 original date of docketing the vacated warrant.
49 § 11-1411 General powers of the commissioner of finance. In addition
50 to the powers granted to the commissioner of finance in this chapter, he
51 or she is hereby authorized and empowered:
52 1. To make, adopt and amend rules and regulations appropriate to the
53 carrying out of this chapter and the purposes thereof;
54 2. To extend, for cause shown, the time for filing any return for a
55 period not exceeding ninety days; and to compromise disputed claims in
56 connection with the taxes imposed under this chapter;
S. 8578 932
1 3. To request information from the taxi and limousine commission, the
2 tax commission of the state of New York or the treasury department of
3 the United States relative to any person; and to afford returns, reports
4 and other information to such taxi and limousine commission, tax commis-
5 sion or treasury department relative to any person, any other provision
6 of this chapter to the contrary notwithstanding;
7 4. To delegate his or her functions hereunder to a deputy commissioner
8 of finance or any employee or employees of the department of finance;
9 5. To prescribe the methods for determining the consideration subject
10 to the tax, and if there is a transfer of a taxicab or other property in
11 conjunction with the transfer of a taxicab license or interest therein,
12 to prescribe rules and methods for determining the fair market value of
13 such taxicab or other property;
14 6. To require any transferee or transferor to keep such records, and
15 for such lengths of time as may be required for the proper adminis-
16 tration of this chapter and to furnish such records to the commissioner
17 of finance or the taxi and limousine commission upon request;
18 7. To assess, determine, revise and adjust the taxes imposed under
19 this chapter.
20 § 11-1412 Administration of oaths and compelling testimony. a. The
21 commissioner of finance, the employees or agents duly designated by him
22 or her, the tax appeals tribunal and any of its duly designated and
23 authorized employees or agents shall have power to administer oaths and
24 take affidavits in relation to any matter or proceeding in the exercise
25 of their powers and duties under this chapter. The commissioner of
26 finance and the tax appeals tribunal shall have power to subpoena and
27 require the attendance of witnesses and the production of books, papers
28 and documents to secure information pertinent to the performance of the
29 duties of the commissioner or of the tax appeals tribunal hereunder and
30 of the enforcement of this chapter and to examine them in relation ther-
31 eto, and to issue commissions for the examination of witnesses who are
32 out of the state or unable to attend before the commissioner or the tax
33 appeals tribunal or excused from attendance.
34 b. A justice of the supreme court either in court or at chambers shall
35 have power summarily to enforce by proper proceedings the attendance and
36 testimony of witnesses and the production and examination of books,
37 papers and documents called for by the subpoena of the commissioner of
38 finance or the tax appeals tribunal under this chapter.
39 c. Cross-reference; criminal penalties. For failure to obey subpoenas
40 or for testifying falsely, see section 11-4007 of this title; for
41 supplying false or fraudulent information, see section 11-4009 of this
42 title.
43 d. The officers who serve the summons or subpoena of the commissioner
44 of finance or the tax appeals tribunal and witnesses attending in
45 response thereto shall be entitled to the same fees as are allowed to
46 officers and witnesses in civil cases in courts of record, except as
47 herein otherwise provided. Such officers shall be the city sheriff and
48 his or her duly appointed deputies or any officers or employees of the
49 department of finance or the tax appeals tribunal, designated to serve
50 such process.
51 § 11-1413 Interest and penalties. (a) Interest on underpayments. If
52 any amount of tax is not paid on or before the last date prescribed for
53 payment, without regard to any extension of time granted for payment,
54 interest on such amount at the rate set by the commissioner of finance
55 pursuant to subdivision (g) of this section, or, if no rate is set, at
56 the rate of seven and one-half percent per annum, shall be paid for the
S. 8578 933
1 period from such last date to the date of payment. In computing the
2 amount of interest to be paid, such interest shall be compounded daily.
3 Interest under this subdivision shall not be paid if the amount thereof
4 is less than one dollar.
5 (b) (1) Failure to file return. (A) In case of failure to file a
6 return under this chapter on or before the prescribed date, determined
7 with regard to any extension of time for filing, unless it is shown that
8 such failure is due to reasonable cause and not due to willful neglect,
9 there shall be added to the amount required to be shown as tax on such
10 return five percent of the amount of such tax if the failure is for not
11 more than one month, with an additional five percent for each additional
12 month or fraction thereof during which such failure continues, not
13 exceeding twenty-five percent in the aggregate.
14 (B) In the case of a failure to file a return of tax within sixty days
15 of the date prescribed for filing of such return, determined with regard
16 to any extension of time for filing, unless it is shown that such fail-
17 ure is due to reasonable cause and not due to willful neglect, the addi-
18 tion to tax under subparagraph (A) of this paragraph shall not be less
19 than the lesser of one hundred dollars or one hundred percent of the
20 amount required to be shown as tax on such return.
21 (C) For purposes of this paragraph, the amount of tax required to be
22 shown on the return shall be reduced by the amount of any part of the
23 tax which is paid on or before the date prescribed for payment of the
24 tax and by the amount of any credit against the tax which may be claimed
25 upon the return.
26 (2) Failure to pay tax shown on return. In case of failure to pay the
27 amount shown as tax on a return required to be filed under this chapter
28 on or before the prescribed date, determined with regard to any exten-
29 sion of time for payment, unless it is shown that such failure is due to
30 reasonable cause and not due to willful neglect, there shall be added to
31 the amount shown as tax on such return one-half of one percent of the
32 amount of such tax if the failure is not for more than one month, with
33 an additional one-half of one percent for each additional month or frac-
34 tion thereof during which such failure continues, not exceeding twenty-
35 five percent in the aggregate. For the purpose of computing the addition
36 for any month the amount of tax shown on the return shall be reduced by
37 the amount of any part of the tax which is paid on or before the begin-
38 ning of such month and by the amount of any credit against the tax which
39 may be claimed upon the return. If the amount of tax required to be
40 shown on a return is less than the amount shown as tax on such return,
41 this paragraph shall be applied by substituting such lower amount.
42 (3) Failure to pay tax required to be shown on return. In case of
43 failure to pay any amount in respect of any tax required to be shown on
44 a return required to be filed under this chapter which is not so shown,
45 including a determination made pursuant to section 11-1406 of this chap-
46 ter, within ten days of the date of a notice and demand therefor, unless
47 it is shown that such failure is due to reasonable cause and not due to
48 willful neglect, there shall be added to the amount of tax stated in
49 such notice and demand one-half of one percent of such tax if the fail-
50 ure is not for more than one month, with an additional one-half of one
51 percent for each additional month or fraction thereof during which such
52 failure continues, not exceeding twenty-five percent in the aggregate.
53 For the purpose of computing the addition for any month, the amount of
54 tax stated in the notice and demand shall be reduced by the amount of
55 any part of the tax which is paid before the beginning of such month.
56 (4) Limitations on additions.
S. 8578 934
1 (A) With respect to any return, the amount of the addition under para-
2 graph one of this subdivision shall be reduced by the amount of the
3 addition under paragraph two of this subdivision for any month to which
4 an addition applies under both paragraphs one and two. In any case
5 described in subparagraph (B) of paragraph one of this subdivision, the
6 amount of the addition under such paragraph one shall not be reduced
7 below the amount provided in such subparagraph.
8 (B) With respect to any return, the maximum amount of the addition
9 permitted under paragraph three of this subdivision shall be reduced by
10 the amount of the addition under paragraph one of this subdivision,
11 determined without regard to subparagraph (B) of such paragraph one,
12 which is attributable to the tax for which the notice and demand is made
13 and which is not paid within ten days of such notice and demand.
14 (c) Underpayment due to negligence. (1) If any part of an underpay-
15 ment of tax is due to negligence or intentional disregard of this chap-
16 ter or any rules or regulations hereunder, but without intent to
17 defraud, there shall be added to the tax a penalty equal to five percent
18 of the underpayment.
19 (2) There shall be added to the tax, in addition to the amount deter-
20 mined under paragraph one of this subdivision, an amount equal to fifty
21 percent of the interest payable under subdivision (a) of this section
22 with respect to the portion of the underpayment described in such para-
23 graph one which is attributable to the negligence or intentional disre-
24 gard referred to in such paragraph one, for the period beginning on the
25 last date prescribed by law for payment of such underpayment, determined
26 without regard to any extension, and ending on the date of the assess-
27 ment of the tax, or, if earlier, the date of the payment of the tax.
28 (d) Underpayment due to fraud. (1) If any part of an underpayment of
29 tax is due to fraud, there shall be added to the tax a penalty equal to
30 fifty percent of the underpayment.
31 (2) There shall be added to the tax, in addition to the penalty deter-
32 mined under paragraph one of this subdivision, an amount equal to fifty
33 percent of the interest payable under subdivision (a) of this section
34 with respect to the portion of the underpayment described in such para-
35 graph one which is attributable to fraud, for the period beginning on
36 the last day prescribed by law for payment of such underpayment, deter-
37 mined without regard to any extension, and ending on the date of the
38 assessment of the tax, or, if earlier, the date of the payment of the
39 tax.
40 (3) The penalty under this subdivision shall be in lieu of any other
41 addition to tax imposed by subdivision (b) or (c) of this section.
42 (e) Additional penalty. Any person who, with fraudulent intent, shall
43 fail to pay any tax imposed by this chapter, or to make, render, sign or
44 certify any return, or to supply any information within the time
45 required by or under this chapter, shall be liable for a penalty of not
46 more than one thousand dollars, in addition to any other amounts
47 required under this chapter to be imposed, assessed and collected by the
48 commissioner of finance. The commissioner of finance shall have the
49 power, in his or her discretion, to waive, reduce or compromise any
50 penalty under this subdivision.
51 (f) The interest and penalties imposed by this section shall be paid
52 and disposed of in the same manner as other revenues from this chapter.
53 Unpaid interest and penalties may be enforced in the same manner as the
54 tax imposed by this chapter.
55 (g)(1) Authority to set interest rates. The commissioner of finance
56 shall set the rate of interest to be paid pursuant to subdivision (a) of
S. 8578 935
1 this section, but if no such rate of interest is set, such rate shall be
2 deemed to be set at seven and one-half percent per annum. Such rate
3 shall be the rate prescribed in paragraph two of this subdivision but
4 shall not be less than seven and one-half percent per annum. Any such
5 rate set by the commissioner of finance shall apply to taxes, or any
6 portion thereof, which remain or become due on or after the date on
7 which such rate becomes effective and shall apply only with respect to
8 interest computed or computable for periods or portions of periods
9 occurring in the period in which such rate is in effect.
10 (2) General rule. The rate of interest set under this subdivision
11 shall be the sum of (i) the federal short-term rate as provided under
12 paragraph three of this subdivision, plus (ii) seven percentage points.
13 (3) Federal short-term rate. For purposes of this subdivision:
14 (A) The federal short-term rate for any month shall be the federal
15 short-term rate determined by the United States secretary of the treas-
16 ury during such month in accordance with subsection (d) of section
17 twelve hundred seventy-four of the internal revenue code for use in
18 connection with section six thousand six hundred twenty-one of the
19 internal revenue code. Any such rate shall be rounded to the nearest
20 full percent, or, if a multiple of one-half of one percent, such rate
21 shall be increased to the next highest full percent.
22 (B) Period during which rate applies.
23 (i) In general. Except as provided in clause (ii) of this subpara-
24 graph, the federal short-term rate for the first month in each calendar
25 quarter shall apply during the first calendar quarter beginning after
26 such month.
27 (ii) Special rule for the month of September, nineteen hundred eight-
28 y-nine. The federal short-term rate for the month of April, nineteen
29 hundred eighty-nine shall apply with respect to setting the rate of
30 interest for the month of September, nineteen hundred eighty-nine.
31 (4) Publication of interest rate. The commissioner of finance shall
32 cause to be published in the City Record, and give other appropriate
33 general notice of, the interest rate to be set under this subdivision no
34 later than twenty days preceding the first day of the calendar quarter
35 during which such interest rate applies. The setting and publication of
36 such interest rate shall not be included within paragraph (a) of subdi-
37 vision five of section one thousand forty-one of the charter of the
38 preceding municipality as it existed January first, nineteen hundred
39 ninety-four relating to the definition of a rule.
40 (h) Miscellaneous. (1) The certificate of the commissioner of finance
41 to the effect that a tax has not been paid or that information has not
42 been supplied pursuant to the provisions of this chapter shall be
43 presumptive evidence thereof.
44 (2) Cross-reference: For criminal penalties, see chapter forty of this
45 title.
46 § 11-1414 Returns to be secret. a. Except in accordance with proper
47 judicial order or as otherwise provided by law, it shall be unlawful for
48 the commissioner of finance, the chairperson of the taxi and limousine
49 commission, the tax appeals tribunal or any officer or employee of the
50 department of finance or taxi and limousine commission or the tax
51 appeals tribunal, to divulge or make known in any manner any information
52 contained in or relating to any return provided for by this chapter. The
53 officers charged with the custody of such returns shall not be required
54 to produce any of them or evidence of anything contained in them in any
55 action or proceeding in any court, except on behalf of the commissioner
56 of finance in an action or proceeding under the provisions of this chap-
S. 8578 936
1 ter, or on behalf of any party to an action or proceeding under the
2 provisions of this chapter when the returns or facts shown thereby are
3 directly involved in such action or proceeding, in either of which
4 events the court may require the production of, and may admit in
5 evidence, so much of said returns or of the facts shown thereby, as are
6 pertinent to the action or proceeding and no more. Nothing in this
7 section shall be construed to prohibit the delivery to a transferee or
8 transferor or to the duly authorized representative of either of them of
9 a certified copy of any return filed in connection with the tax imposed
10 by this chapter; nor to prohibit the delivery of such a certified copy
11 of such return or of any information contained in or relating thereto to
12 the United States of America or any department thereof, the state of New
13 York or any department thereof, the city of Staten Island or any depart-
14 ment thereof provided the same is required for official business; nor to
15 prohibit the inspection for official business of such returns by the
16 chairperson of the taxi and limousine commission, the corporation coun-
17 sel or other legal representatives of the city or by the district attor-
18 ney of Richmond county; nor to prohibit the publication of statistics so
19 classified as to prevent the identification of particular returns or
20 items thereof.
21 b. (1) Any officer or employee of the city who willfully violates the
22 provisions of subdivision a of this section shall be dismissed from
23 office and be incapable of holding any public office in this city for a
24 period of five years thereafter.
25 (2) Cross-reference: For criminal penalties, see chapter forty of this
26 title.
27 c. This section shall be deemed a state statute for purposes of para-
28 graph (a) of subdivision two of section eighty-seven of the public offi-
29 cers law.
30 d. Notwithstanding anything in subdivision a of this section to the
31 contrary, if a taxpayer has petitioned the tax appeals tribunal for
32 administrative review as provided in section one hundred seventy of the
33 charter of the preceding municipality as it existed January first, nine-
34 teen hundred ninety-four, the commissioner of finance shall be author-
35 ized to present to the tribunal any report or return of such taxpayer,
36 or any information contained therein or relating thereto, which may be
37 material or relevant to the proceeding before the tribunal. The tax
38 appeals tribunal shall be authorized to publish a copy or a summary of
39 any decision rendered pursuant to section one hundred seventy-one of the
40 charter of the preceding municipality as it existed January first, nine-
41 teen hundred ninety-four.
42 § 11-1415 Notices and limitations of time. a. Any notice authorized
43 or required under the provisions of this chapter may be given by mailing
44 the same to the person for whom it is intended in a postpaid envelope
45 addressed to such person at the address given in the last return filed
46 by such person pursuant to the provisions of this chapter, in any appli-
47 cation made by such person, or in the records maintained by the taxi and
48 limousine commission, or, if no return has been filed or application
49 made or address found in the records of the taxi and limousine commis-
50 sion, then to such address as may be obtainable. The mailing of such
51 notice shall be presumptive evidence of the receipt of the same by the
52 person to whom addressed. Any period of time which is determined accord-
53 ing to the provisions of this chapter by the giving of notice shall
54 commence to run from the date of mailing of such notice.
55 b. The provisions of the civil practice law and rules or any other law
56 relative to limitations of time for the enforcement of a civil remedy
S. 8578 937
1 shall not apply to any proceeding or action taken by the city to levy,
2 appraise, assess, determine or enforce the collection of any tax or
3 penalty provided by this chapter. However, except in the case of a
4 wilfully false or fraudulent return with intent to evade the tax, no
5 assessment of additional tax shall be made after the expiration of more
6 than three years from the date of the filing of a return; provided,
7 however, that where no return has been filed as provided by law the tax
8 may be assessed at any time.
9 c. Where, before the expiration of the period prescribed herein for
10 the assessment of an additional tax, a taxpayer has consented in writing
11 that such period be extended, the amount of such additional tax due may
12 be determined at any time within such extended period. The period so
13 extended may be further extended by subsequent consents in writing made
14 before the expiration of the extended period.
15 d. If any return, claim, statement, notice, application, or other
16 document required to be filed, or any payment required to be made, with-
17 in a prescribed period or on or before a prescribed date under authority
18 of any provision of this chapter is, after such period or such date,
19 delivered by United States mail to the commissioner of finance, the tax
20 appeals tribunal, bureau, office, officer or person with which or with
21 whom such document is required to be filed, or to which or to whom such
22 payment is required to be made, the date of the United States postmark
23 stamped on the envelope shall be deemed to be the date of delivery. This
24 subdivision shall apply only if the postmark date falls within the
25 prescribed period or on or before the prescribed date for the filing of
26 such document, or for making the payment, including any extension grant-
27 ed for such filing or payment, and only if such document or payment was
28 deposited in the mail, postage prepaid, properly addressed to the
29 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
30 cer or person with which or with whom the document is required to be
31 filed or to which or to whom such payment is required to be made. If any
32 document is sent by United States registered mail, such registration
33 shall be prima facie evidence that such document was delivered to the
34 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
35 cer or person to which or to whom addressed, and the date of registra-
36 tion shall be deemed the postmark date. The commissioner of finance and,
37 where relevant, the tax appeals tribunal are authorized to provide by
38 regulation the extent to which such provisions with respect to prima
39 facie evidence of delivery and the postmark date shall apply to certi-
40 fied mail. Except as provided in subdivision f of this section, this
41 subdivision shall apply in the case of postmarks not made by the United
42 States postal service only if and to the extent provided by regulation
43 of the commissioner of finance or, where relevant, the tax appeals
44 tribunal.
45 e. When the last day prescribed under authority of this chapter,
46 including any extension of time, for performing any act falls on a
47 Saturday, Sunday or legal holiday in the state, the performance of such
48 act shall be considered timely if it is performed on the next succeeding
49 day which is not a Saturday, Sunday or legal holiday.
50 f. (1) Any reference in subdivision d of this section to the United
51 States mail shall be treated as including a reference to any delivery
52 service designated by the secretary of the treasury of the United States
53 pursuant to section seventy-five hundred two of the internal revenue
54 code and any reference in subdivision d of this section to a United
55 States postmark shall be treated as including a reference to any date
56 recorded or marked in the manner described in section seventy-five
S. 8578 938
1 hundred two of the internal revenue code by a designated delivery
2 service. If the commissioner of finance finds that any delivery service
3 designated by such secretary is inadequate for the needs of the city,
4 the commissioner of finance may withdraw such designation for purposes
5 of this title. The commissioner of finance may also designate additional
6 delivery services meeting the criteria of section seventy-five hundred
7 two of the internal revenue code for purposes of this title, or may
8 withdraw any such designation if the commissioner of finance finds that
9 a delivery service so designated is inadequate for the needs of the
10 city. Any reference in subdivision d of this section to the United
11 States mail shall be treated as including a reference to any delivery
12 service designated by the commissioner of finance and any reference in
13 subdivision d of this section to a United States postmark shall be
14 treated as including a reference to any date recorded or marked in the
15 manner described in section seventy-five hundred two of the internal
16 revenue code by a delivery service designated by the commissioner of
17 finance, provided, however, any withdrawal of designation or additional
18 designation by the commissioner of finance shall not be effective for
19 purposes of service upon the tax appeals tribunal, unless and until such
20 withdrawal of designation or additional designation is ratified by the
21 president of the tax appeals tribunal.
22 (2) Any equivalent of registered or certified mail designated by the
23 United States secretary of the treasury, or as may be designated by the
24 commissioner of finance pursuant to the same criteria used by such
25 secretary for such designations pursuant to section seventy-five hundred
26 two of the internal revenue code, shall be included within the meaning
27 of registered or certified mail as used in subdivision d of this
28 section. If the commissioner of finance finds that any equivalent of
29 registered or certified mail designated by such secretary or the commis-
30 sioner of finance is inadequate for the needs of the city, the commis-
31 sioner of finance may withdraw such designation for purposes of this
32 title, provided, however, any withdrawal of designation or additional
33 designation by the commissioner of finance shall not be effective for
34 purposes of service upon the tax appeals tribunal, unless and until such
35 withdrawal of designation or additional designation is ratified by the
36 president of the tax appeals tribunal.
37 § 11-1416 Construction and enforcement. This chapter shall be
38 construed and enforced in conformity with subdivision (j) of section
39 twelve hundred one of the tax law.
40 § 11-1417 Disposition of revenues. All revenues resulting from the
41 imposition of the tax under this chapter shall be paid into the treasury
42 of the city and shall be credited to and deposited in the general fund
43 of the city, but no part of such revenue may be expended unless appro-
44 priated in the annual budget of the city.
45 CHAPTER 16
46 TAX ON CONTAINERS
47 § 11-1601 Definitions. When used in this chapter, the following terms
48 shall mean and include:
49 1. "Person." An individual, partnership, society, association, joint-
50 stock company, corporation, estate, receiver, trustee, assignee, refer-
51 ee, or any other person acting in a fiduciary or representative capaci-
52 ty, whether appointed by a court or otherwise and any combination
53 thereof.
S. 8578 939
1 2. "Container." Any article, thing or contrivance made in whole or in
2 part of rigid or semi-rigid plastic, including, but not limited to,
3 barrels, baskets, bottles, boxes, cartons, carrying cases, crates, cups,
4 cylinders, drums, jars, jugs, pails, pots, trays, tubs, tubes, tumblers,
5 and vessels, intended for use in packing or packaging any product
6 intended for sale:
7 (a) Metal containers and paperboard or fiber containers which have
8 been impregnated, lined or coated with plastic or other materials shall
9 be considered to be classified as metal containers and paperboard
10 containers, respectively;
11 (b) Paperboard or fiber containers with fastenings, tops or bottoms
12 made of plastic shall be classified as paperboard or fiber containers;
13 (c) Plastic caps that are easily, readily, usually, and customarily
14 separated from the container before disposal shall not be considered
15 part of the container.
16 3. "Recycled material." Component materials which have been derived
17 from previously used material or from new or old scrap material.
18 4. "Taxable period." Such calendar period prescribed for filing
19 returns by this chapter or by the commissioner of finance.
20 5. "Retail sale" or "sale at retail." A sale to any person for any
21 purpose other than for resale as such or as a physical component part of
22 tangible personal property.
23 6. "Sale." The sale or furnishing of a container by a seller or
24 supplier to a retailer.
25 7. "Seller or supplier." Any person who sells containers to a retail-
26 er.
27 8. "Retailer." Any person who purchases containers, whether filled or
28 unfilled, for the purpose of using them in connection with and as part
29 of sales at retail or who receives them as containers of products
30 intended for sale at retail.
31 9. "City." The city of Staten Island.
32 10. "Commissioner of finance." The commissioner of finance of the
33 city.
34 11. "Comptroller." The comptroller of the city.
35 § 11-1602 General powers of the commissioner of finance. In addi-
36 tion to the powers granted to the commissioner of finance in this chap-
37 ter, the commissioner is hereby authorized and empowered:
38 1. To make, adopt and amend rules and regulations appropriate to the
39 carrying chapter and the purposes thereof;
40 2. To extend, for cause shown, the time of filing any return for a
41 period not exceeding thirty days; and for cause shown, to remit penal-
42 ties but not interest computed at the rate of six per cent per annum;
43 and to compromise disputed claims in connection with the taxes hereby
44 imposed;
45 3. To request information from the tax commission of the state of New
46 York or the treasury department of the United States relative to any
47 person; and to afford information to such tax commission or such treas-
48 ury department relative to any person, any other provision of this chap-
49 ter to the contrary notwithstanding;
50 4. To delegate the commissioner's functions under this section to an
51 assistant commissioner or deputy commissioner in the department of
52 finance or to any employee or employees of the commissioner of finance;
53 5. To prescribe methods for determining the containers sold or
54 supplied or purchased and to determine which are taxable and nontaxable;
55 6. To require sellers and suppliers and retailers within the city to
56 keep detailed records with respect to containers bought, sold, used,
S. 8578 940
1 manufactured or produced, and stock and production records with respect
2 to such containers whether or not subject to the tax imposed by this
3 chapter, and to furnish any information with respect thereto upon
4 request to the commissioner of finance;
5 7. To assess, determine, revise and readjust the taxes imposed under
6 this chapter.
7 § 11-1603 Administration of oaths and compelling testimony. a. The
8 commissioner of finance or the commissioner's employees or agents duly
9 designated and authorized by the commissioner shall have power to admin-
10 ister oaths and take affidavits in relation to any matter or proceeding
11 in the exercise of their powers and duties under this chapter. The
12 commissioner of finance shall have power to subpoena and require the
13 attendance of witnesses and the production of books, papers and docu-
14 ments to secure information pertinent to the performance of the commis-
15 sioner's duties hereunder and of the enforcement of this chapter and to
16 examine them in relation thereto, and to issue commissions for the exam-
17 ination of witnesses who are out of the state or unable to attend before
18 the commissioner or excused from attendance.
19 b. A justice of the supreme court either in court or at chambers shall
20 have power summarily to enforce by proper proceedings the attendance and
21 testimony of witnesses and the production and examination of books,
22 papers and documents called for by the subpoena of the commissioner of
23 finance under this chapter.
24 c. Any person who shall refuse to testify or to produce books or
25 records or who shall testify falsely in any material matter pending
26 before the commissioner of finance under this chapter shall be guilty of
27 a misdemeanor, punishment for which shall be a fine of not more than one
28 thousand dollars or imprisonment for not more than one year, or both
29 such fine and imprisonment.
30 d. The officers who serve the summons or subpoena of the commissioner
31 of finance and witnesses attending in response thereto shall be entitled
32 to the same fees as are allowed to officers and witnesses in civil cases
33 in courts of record, except as otherwise provided. Such officers shall
34 be the city sheriff and the city sheriff's duly appointed deputies or
35 any officers or employees of the commissioner of finance, designated to
36 serve such process.
37 § 11-1604 Imposition of tax. 1. On and after July first, nineteen
38 hundred seventy-one, there is hereby imposed within the city and there
39 shall be paid a tax upon every sale of a plastic container at the rate
40 of two cents for each container sold.
41 2. A credit shall be allowed against the taxes imposed by this chap-
42 ter of one cent for each taxable container if manufactured with a mini-
43 mum of thirty percent of recycled material.
44 § 11-1605 Presumptions and burden of proof. For the purpose of
45 proper administration of this chapter and to prevent evasion of the tax
46 hereby imposed, it shall be presumed that all sales of plastic contain-
47 ers are taxable, and not entitled to any credit allowed against the
48 taxes imposed. Such presumptions shall prevail until the contrary is
49 established and the burden of proving the contrary shall be upon the
50 taxpayer.
51 § 11-1606 Payment of the tax. The tax imposed pursuant to this
52 chapter shall be paid by the seller or supplier. However, where the tax
53 has not been paid on a sale by such seller or supplier, the retailer
54 shall be liable for tax thereon upon purchasing the container. Should
55 sellers and suppliers having no business situs in the city, who sell
S. 8578 941
1 containers to retailers within the city, pay the tax, the retailer
2 purchasing the containers shall not be liable for the tax.
3 § 11-1607 Records to be kept. Every seller or supplier and every
4 retailer shall keep records of all plastic containers taxed pursuant to
5 this chapter and of all purchases and sales thereof and of the taxes due
6 and payable on the sale or on the purchase thereof, in such form as the
7 commissioner of finance may by regulation require. Such records shall
8 be available for inspection and examination at any time upon demand by
9 the commissioner of finance or the commissioner's duly authorized agent
10 or employee and shall be preserved for a period of three years, except
11 that the commissioner of finance may consent to their destruction within
12 that period or may require that they be kept longer.
13 § 11-1608 Exemptions. 1. The following shall be exempt from the
14 payment of the tax imposed by this chapter:
15 (a) The state of New York, or any of its agencies, instrumentalities,
16 public corporations, including a public corporation created pursuant to
17 agreement or compact with another state or Canada, or political subdivi-
18 sions where it is the purchaser, user or consumer;
19 (b) The United States of America, and any of its agencies and instru-
20 mentalities insofar as it is immune from taxation where it is the
21 purchaser, user or consumer;
22 (c) The United Nations or other international organizations of which
23 the United States of America is a member; and
24 (d) Any corporation, or association, or trust, or community chest,
25 fund or foundation, organized and operated exclusively for religious,
26 charitable, or educational purposes, or for the prevention of cruelty to
27 children or animals, and no part of the net earnings of which inures to
28 the benefit of any private shareholder or individual, and no substantial
29 part of the activities of which is carrying on propaganda, or otherwise
30 attempting to influence legislation; provided, however, that nothing in
31 this paragraph shall include an organization operated for the primary
32 purpose of carrying on a trade or business for profit, whether or not
33 all of its profits are payable to one or more organizations described in
34 this paragraph.
35 2. The following containers shall be exempt from the tax imposed by
36 this chapter: a. Containers sold or furnished containing products
37 intended for use in manufacturing processes and not for final retail
38 sale.
39 b. Containers used as receptacles for food, food products, beverages,
40 dietary foods and health supplements, sold for human consumption but not
41 including: (i) candy and confectionery, (ii) fruit drinks which contain
42 less than seventy percent of natural fruit juice, (iii) soft drinks,
43 sodas and beverages such as are ordinarily dispensed at soda fountains
44 or in connection therewith, other than coffee, tea and cocoa, and (iv)
45 beer, wine or other alcoholic beverages.
46 § 11-1609 Returns. 1. Every seller or supplier shall file with the
47 commissioner of finance a return of containers sold and of the taxes due
48 and payable thereon for the period from July first, nineteen hundred
49 seventy-one until the last day of September, nineteen hundred seventy-
50 one and thereafter for each of the four-monthly periods ending on the
51 last day of January, May and September of each year.
52 2. Every retailer shall file with the commissioner of finance a
53 return of containers purchased by such retailer from sellers or suppli-
54 ers having no situs within the city and of the taxes due thereon for the
55 same periods provided in subdivision one of this section.
S. 8578 942
1 3. The returns shall be filed within twenty days after the end of the
2 periods covered thereby. The commissioner of finance may permit or
3 require returns to be made for other periods and upon such dates as the
4 commissioner may specify. If the commissioner of finance deems it
5 necessary in order to insure the payment of the tax imposed by this
6 chapter, the commissioner may require returns to be made for shorter
7 periods than those prescribed pursuant to the provisions of this subdi-
8 vision and upon such dates as he or she may specify.
9 4. The forms of returns shall be prescribed by the commissioner of
10 finance and shall contain such information as the commissioner may deem
11 necessary for the proper administration of this chapter. The commis-
12 sioner of finance may require amended returns to be filed within twenty
13 days after notice and to contain the information specified in the
14 notice.
15 5. If a return required by this chapter is not filed or if a return
16 when filed is incorrect or insufficient on its face the commissioner of
17 finance shall take the necessary steps to enforce the filing of such a
18 return or a corrected return.
19 § 11-1610 Determination of tax. If a return required by this chapter
20 is not filed, or if a return when filed is incorrect or insufficient,
21 the amount of tax due shall be determined by the commissioner of finance
22 from such information as may be obtainable and, if necessary, the tax
23 may be estimated on the basis of external indices, such as volume of
24 sales, inventories, purchases of containers, or of raw materials,
25 production figures, or other factors. Notice of such determination shall
26 be given to the person liable for the collection or payment of the tax.
27 Such determination shall finally and irrevocably fix the tax unless the
28 person against whom it is assessed, within thirty days after giving
29 notice of such determination, shall apply to the commissioner of finance
30 for a hearing, or unless the commissioner of finance of his or her own
31 motion shall redetermine the same. After such hearing the commissioner
32 of finance shall give notice of his or her determination to the person
33 against whom the tax is assessed. The determination of the commissioner
34 of finance shall be reviewable for error, illegality or unconstitution-
35 ality or any other reason whatsoever by a proceeding under article
36 seventy-eight of the civil practice law and rules if application there-
37 for is made to the supreme court within four months after the giving of
38 the notice of such determination. A proceeding under article seventy-
39 eight of the civil practice law and rules shall not be instituted
40 unless: (a) the amount of any tax sought to be reviewed, with penalties
41 and interest thereon, if any, shall be first deposited with the commis-
42 sioner of finance and there shall be filed with the commissioner of
43 finance an undertaking, issued by a surety company authorized to trans-
44 act business in this state and approved by the superintendent of insur-
45 ance of this state as to solvency and responsibility, in such amount as
46 a justice of the supreme court shall approve to the effect that if such
47 proceeding be dismissed or the tax confirmed, the petitioner will pay
48 all costs and charges which may accrue in the prosecution of the
49 proceeding; or (b) at the option of the applicant such undertaking filed
50 with the commissioner of finance may be in a sum sufficient to cover the
51 taxes, penalties and interest thereon stated in such determination plus
52 the costs and charges which may accrue against it in the prosecution of
53 the proceeding, in which event the applicant shall not be required to
54 deposit such taxes, penalties and interest as a condition precedent to
55 the application.
S. 8578 943
1 § 11-1611 Refunds. a. In the manner provided in this section the
2 commissioner of finance shall refund or credit, without interest, any
3 tax, penalty or interest erroneously, illegally or unconstitutionally
4 collected or paid if application to the commissioner of finance for such
5 refund shall be made within one year from the payment thereof. Whenever
6 a refund is made by the commissioner of finance, the commissioner shall
7 state his or her reasons therefor in writing. Such application may be
8 made by the seller or supplier or the retailer or other person who has
9 actually paid the tax. The commissioner of finance may, in lieu of any
10 refund required to be made, allow credit therefor on payments due from
11 the applicant.
12 b. An application for a refund or credit made as herein provided shall
13 be deemed an application for revision of any tax, penalty or interest
14 complained of. If the commissioner of finance, prior to any hearing
15 held, initially denies the application for refund, the commissioner
16 shall give notice of such determination of denial to the applicant. Such
17 determination shall be final and irrevocable unless the applicant, with-
18 in thirty days after the giving of notice of such determination, shall
19 apply to the commissioner of finance for a hearing, or unless the
20 commissioner of finance of his or her own motion shall redetermine the
21 same. After such hearing the commissioner of finance shall give notice
22 of his or her determination to the applicant, who shall be entitled to
23 review such determination by a proceeding pursuant to article seventy-
24 eight of the civil practice law and rules, provided such proceeding is
25 instituted within four months after the giving of the notice of such
26 determination, and provided that a final determination of tax was not
27 previously made. Such a proceeding shall not be instituted unless an
28 undertaking is filed with the commissioner of finance in such amount and
29 with such sureties as a justice of the supreme court shall approve to
30 the effect that if such proceeding be dismissed or the tax confirmed,
31 the petitioner shall pay all costs and charges which may accrue in the
32 prosecution of such proceeding.
33 c. A person shall not be entitled to a revision, refund or credit
34 under this section of a tax, interest or penalty which had been deter-
35 mined to be due pursuant to the provisions of section 11-1610 of this
36 chapter where such person has had a hearing or an opportunity for a
37 hearing, as provided in said section, or has failed to avail himself or
38 herself of the remedies therein provided. No refund or credit shall be
39 made of a tax, interest or penalty paid after a determination by the
40 commissioner of finance made pursuant to section 11-1609 of this chapter
41 unless it be found that such determination was erroneous, illegal or
42 unconstitutional or otherwise improper, by the commissioner of finance
43 after a hearing or of the commissioner's own motion, or in a proceeding
44 under article seventy-eight of the civil practice law and rules, pursu-
45 ant to the provisions of said section, in which event refund or credit
46 without interest shall be made of the tax, interest or penalty found to
47 have been overpaid.
48 § 11-1612 Reserves. In cases where the seller or supplier or the
49 retailer has applied for a refund and has instituted a proceeding under
50 article seventy-eight of the civil practice law and rules to review a
51 determination adverse to him or her on his or her application for
52 refund, the comptroller shall set up appropriate reserves to meet any
53 decision adverse to the city.
54 § 11-1613 Remedies exclusive. The remedies provided by sections
55 11-1610 and 11-1611 of this chapter shall be the exclusive remedies
56 available to any person for the review of tax liability imposed by this
S. 8578 944
1 chapter; and no determination or proposed determination of tax or deter-
2 mination on any application for refund shall be enjoined or reviewed by
3 an action for declaratory judgment, an action for money had and received
4 or by any action or proceeding other than a proceeding in the nature of
5 a certiorari proceeding under article seventy-eight of the civil prac-
6 tice law and rules; provided, however, that a taxpayer may proceed by
7 declaratory judgment if such taxpayer institutes suit within thirty days
8 after a deficiency assessment is made and pays the amount of the defi-
9 ciency assessment to the commissioner of finance prior to the institu-
10 tion of such suit and posts a bond for costs as provided in section
11 11-1610 of this chapter.
12 § 11-1614 Proceedings to recover tax. a. Whenever any seller or
13 supplier or retailer or other person shall fail to pay any tax, penalty
14 or interest imposed by this chapter, the corporation counsel shall, upon
15 the request of the commissioner of finance bring or cause to be brought
16 an action to enforce the payment of the same on behalf of the city of
17 Staten Island in any court of the state of New York or of any other
18 state or of the United States. If, however, the commissioner of finance
19 in his or her discretion believes that any such seller or supplier or
20 retailer or other person is about to cease business, leave the state or
21 remove or dissipate the assets out of which the tax, penalties or inter-
22 est might be satisfied, and that any such tax, penalty or interest will
23 not be paid when due, the commissioner of finance may declare such tax,
24 penalty or interest to be immediately due and payable and may issue a
25 warrant immediately.
26 b. As an additional or alternate remedy, the commissioner of finance
27 may issue a warrant, directed to the city sheriff commanding the city
28 sheriff to levy upon and sell the real and personal property of the
29 seller or supplier or retailer or other person liable for the tax, which
30 may be found within the city, for the payment of the amount thereof,
31 with any penalties and interest, and the cost of executing the warrant,
32 and to return such warrant to the commissioner of finance and to pay to
33 the commissioner of finance the money collected by virtue thereof within
34 sixty days after the receipt of such warrant. The city sheriff shall
35 within five days after the receipt of the warrant file with the county
36 clerk a copy thereof, and thereupon such clerk shall enter in the judg-
37 ment docket the name of the person mentioned in the warrant and the
38 amount of the tax, penalties and interest for which the warrant is
39 issued and the date when such copy is filed. Thereupon the amount of
40 such warrant so docketed shall become a lien upon the title to and
41 interest in real and personal property of the person against whom the
42 warrant is issued. The city sheriff shall then proceed upon the warrant,
43 in the same manner, and with like effect, as that provided by law in
44 respect to executions issued against property upon judgments of a court
45 of record, and for services in executing the warrant the city sheriff
46 shall be entitled to the same fees, which he or she may collect in the
47 same manner. In the discretion of the commissioner of finance a warrant
48 of like terms, force and effect may be issued and directed to any offi-
49 cer or employee of the department of finance, and in the execution ther-
50 eof such officer or employee shall have all the powers conferred by law
51 upon sheriffs, but shall be entitled to no fee or compensation in excess
52 of the actual expenses paid in the performance of such duty. If a
53 warrant is returned not satisfied in full, the commissioner of finance
54 may from time to time issue new warrants and shall also have the same
55 remedies to enforce the amount due thereunder as if the city had recov-
S. 8578 945
1 ered judgment therefor and execution thereon had been returned unsatis-
2 fied.
3 c. Whenever a seller or supplier or the retailer shall make a sale,
4 transfer, or assignment in bulk of any part of the whole of his or her
5 fixtures, or of his or her stock of merchandise, or of stock or merchan-
6 dise and of fixtures pertaining to the conduct or operation of business
7 of the seller or supplier or the retailer, otherwise than in the ordi-
8 nary course of trade and regular prosecution of business, the purchaser,
9 transferee or assignee shall at least ten days before taking possession
10 of the subject of said sale, transfer or assignment, or paying therefor,
11 notify the commissioner of finance by registered mail of the proposed
12 sale and of the price, terms and conditions thereof whether or not the
13 seller, transferor or assignor, has represented to, or informed the
14 purchaser, transferee or assignee that it owes any tax pursuant to this
15 chapter, and whether or not the purchaser, transferee or assignee has
16 knowledge that such taxes are owing, and whether any such taxes are in
17 fact owing.
18 Whenever the purchaser, transferee or assignee shall fail to give
19 notice to the commissioner of finance as required by the opening para-
20 graph of this subdivision, or whenever the commissioner of finance shall
21 inform the purchaser, transferee or assignee that a possible claim for
22 such tax or taxes exists, any sums of money, property or chooses in
23 action, or other consideration, which the purchaser, transferee or
24 assignee is required to transfer over to the seller, transferor or
25 assignor shall be subject to a first priority right and lien for any
26 such taxes theretofore or thereafter determined to be due from the sell-
27 er, transferor or assignor to the city, and the purchaser, transferee or
28 assignee is forbidden to transfer to the seller, transferor or assignor
29 any such sums of money, property or chooses in action to the extent of
30 the amount of the city's claim. For failure to comply with the
31 provisions of this subdivision, the purchaser, transferee or assignee,
32 in addition to being subject to the liabilities and remedies imposed
33 under the provisions of article six of the uniform commercial code,
34 shall be personally liable for the payment to the city of any such taxes
35 theretofore or thereafter determined to be due to the city from the
36 seller, transferor or assignor, and such liability may be assessed and
37 enforced in the same manner as the liability for tax under this chapter.
38 d. The commissioner of finance, if he or she finds that the interests
39 of the city will not thereby be jeopardized, and upon such conditions as
40 the commissioner of finance may require, may release any property from
41 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
42 tions to tax, penalties and interest filed pursuant to subdivision b of
43 this section, and such release or vacating of the warrant may be
44 recorded in the office of any recording officer in which such warrant
45 has been filed. The clerk shall thereupon cancel and discharge as of the
46 original date of docketing the vacated warrant.
47 § 11-1615 Penalties and interest. a. Any person failing to file a
48 return or to pay any tax to the commissioner of finance within the time
49 required by this chapter shall be subject to a penalty of five percent
50 of the amount of tax due; plus interest at the rate of one percent of
51 such tax for each month of delay excepting the first month after such
52 return was required to be filed or such tax became due; but the commis-
53 sioner of finance if satisfied that the delay was excusable, may remit
54 all or any part of such penalty, but not interest at the rate of six
55 percent per year. Such penalties and interest shall be paid and disposed
56 of in the same manner as other revenues from this chapter. Unpaid penal-
S. 8578 946
1 ties and interest may be enforced in the same manner as the tax imposed
2 by this chapter.
3 b. Any seller or supplier or any retailer or any officer of a corpo-
4 rate seller or supplier or retailer, failing to file a return as
5 required by this chapter, or filing or causing to be filed or making or
6 causing to be made or given or causing to be given any return, certif-
7 icate, affidavit, representation, information, testimony or statement
8 required or authorized by this chapter which is willfully false, and any
9 seller or supplier or any retailer or any officer of a corporate seller
10 or supplier or retailer failing to keep the records required by subdivi-
11 sion six of section 11-1602 of this chapter, shall, in addition to the
12 penalties under this subdivision or elsewhere prescribed, be guilty of a
13 misdemeanor, punishment for which shall be a fine of not more than one
14 thousand dollars or imprisonment for not more than one year, or both
15 such fine and imprisonment. It shall not be any defense to a prosecution
16 under this subdivision that the failure to file a return or that the
17 actions or failures to act mentioned in this subdivision was uninten-
18 tional or not willful.
19 c. The certificate of the commissioner of finance to the effect that a
20 tax has not been paid, that a return has not been filed, or that infor-
21 mation has not been supplied pursuant to the provisions of this chapter,
22 shall be presumptive evidence thereof.
23 § 11-1616 Return to be secret. a. Except in accordance with proper
24 judicial order, or as otherwise provided by law, it shall be unlawful
25 for the commissioner of finance, any officer or employee of the depart-
26 ment of finance, any person engaged or retained on an independent
27 contract basis or any person who, pursuant to this section is permitted
28 to inspect any return or to whom a copy, an abstract or a portion of any
29 return is furnished, or to whom any information contained in any return
30 is furnished, to divulge or make known in any manner any information
31 contained in or relating to any return required under this chapter. The
32 officers charged with the custody of such returns shall not be required
33 to produce any of them or evidence of anything contained in them in any
34 action or proceeding in any court, except on behalf of the commissioner
35 of finance in an action or proceeding under the provisions of this chap-
36 ter, or on behalf of any party to any action or proceeding under the
37 provisions of this chapter, when the returns or facts shown thereby are
38 directly involved in such action or proceeding, in either of which
39 events the court may require the production of, and may admit in
40 evidence, so much of said returns or of the facts shown thereby, as are
41 pertinent to the action or proceeding and no more. Nothing under this
42 subdivision shall be construed to prohibit the delivery to a taxpayer or
43 such taxpayer's duly authorized representative of a certified copy of
44 any return filed in connection with such taxpayer's tax; nor to prohibit
45 the delivery of such a certified copy of such return or of any informa-
46 tion contained in or relating thereto, the United States of America or
47 any department thereof, to the state of New York or any department ther-
48 eof, or to any agency or department of the city of Staten Island,
49 provided the same is requested for official business; nor to prohibit
50 the inspection for official business of such returns by the corporation
51 counsel or other legal representatives of the city or by the district
52 attorney of Richmond county; nor to prohibit the publication of statis-
53 tics so classified as to prevent the identification of particular
54 returns and the items thereof. Returns shall be preserved for three
55 years and thereafter until the commissioner of finance permits them to
56 be destroyed.
S. 8578 947
1 b. Any violation of subdivision a of this section shall be punishable
2 by a fine not exceeding one thousand dollars, or by imprisonment not
3 exceeding one year, or both, in the discretion of the court, and if the
4 offender be an officer or employee of the city he or she shall be
5 dismissed from office and be incapable of holding any public office for
6 a period of five years thereafter.
7 § 11-1617 Notices and limitations of time. a. Any notice author-
8 ized or required under the provisions of this chapter may be given by
9 mailing the same to the person for whom it is intended in a postpaid
10 envelope addressed to such person at the address given in the last
11 return filed by such person pursuant to the provisions of this chapter
12 or in any application made by such person or, if no return has been
13 filed or application made, then to such address as may be obtainable.
14 The mailing of such notice shall be presumptive evidence of the receipt
15 of the same by the person to whom addressed. Any period of time which
16 is determined according to the provisions of this chapter by the giving
17 of notice shall commence to run from the date of mailing of such notice.
18 b. The provisions of the civil practice law and rules or any other
19 law relative to limitations of time for the enforcement of a civil reme-
20 dy shall not apply to any proceeding or action taken by the city to
21 levy, appraise, assess, determine or enforce the collection of any tax
22 or penalty provided by this chapter. However, except in the case of a
23 willfully false or fraudulent return with intent to evade the tax, no
24 assessment of additional tax shall be made after the expiration of more
25 than three years from the date of the filing of a return; provided,
26 however, that where no return has been filed as provided by law the tax
27 may be assessed at any time.
28 c. Where, before the expiration of the period prescribed under this
29 section for assessment of an additional tax, a taxpayer has consented in
30 writing that such period be extended, the amount of such additional tax
31 due may be determined at any time within such extended period. The
32 period so extended may be further extended by subsequent consents in
33 writing made before the expiration of the extended period.
34 § 11-1618 Construction and enforcement. This chapter shall be
35 construed and enforced in conformity with chapter three hundred ninety-
36 nine of the laws of nineteen hundred seventy-one, pursuant to which it
37 is enacted.
38 CHAPTER 17
39 CITY PERSONAL INCOME TAX ON RESIDENTS
40 SUBCHAPTER 1
41 GENERAL
42 § 11-1701 Imposition of tax. General. A tax is hereby imposed on the
43 city taxable income of every city resident individual, estate and trust
44 determined in accordance with the rates set forth in subdivision (a) of
45 this section for taxable years beginning before two thousand twenty-sev-
46 en, and in accordance with the rates set forth in subdivision (b) of
47 this section for taxable years beginning after two thousand twenty-six.
48 Provided, however, that if, for any taxable year beginning after two
49 thousand twenty-six, the rates set forth in such subdivision (b) are
50 rendered inapplicable and the rates set forth in such subdivision (a)
51 are rendered applicable, then the tax for such taxable year shall be at
52 the rates provided under subparagraph (A) of paragraphs one, two and
53 three of such subdivision (a).
S. 8578 948
1 Notwithstanding the opening paragraph of this section, for taxable
2 years beginning after two thousand two and before two thousand six, a
3 tax is hereby imposed on the city taxable income of every city resident
4 individual, estate and trust determined in accordance with the rates set
5 forth in subdivision (g) of this section and in accordance with the
6 provisions of subdivision (h) of this section. During any taxable year
7 beginning after two thousand two and before two thousand six, in which
8 the tax imposed pursuant to this section is determined in accordance
9 with subdivisions (g) and (h) of this section, the rates set forth in
10 subdivisions (a) and (b) of this section shall be inapplicable, and the
11 tax imposed pursuant to section 11-1704.1 of this chapter shall be
12 suspended.
13 (a) Rate of tax. A tax imposed pursuant to this section shall be
14 determined as follows:
15 (1) Resident married individuals filing joint returns and resident
16 surviving spouses. The tax under this section for each taxable year on
17 the city taxable income of every city resident married individual who
18 makes a single return jointly with his or her spouse under subdivision
19 (b) of section 11-1751 of this chapter and on the city taxable income of
20 every city resident surviving spouse shall be determined in accordance
21 with the following tables:
22 (A) For taxable years beginning after two thousand sixteen:
23 If the city taxable income is: The tax is:
24 Not over $21,600 2.7% of the city taxable income
25 Over $21,600 but not $583 plus 3.3% of excess
26 over $45,000 over $21,600
27 Over $45,000 but not $1,355 plus 3.35% of excess
28 over $90,000 over $45,000
29 Over $90,000 $2,863 plus 3.4% of excess
30 over $90,000
31 (B) For taxable years beginning after two thousand fourteen and before
32 two thousand seventeen:
33 If the city taxable income is: The tax is:
34 Not over $21,600 2.55% of the city taxable income
35 Over $21,600 but not $551 plus 3.1% of excess
36 over $45,000 over $21,600
37 Over $45,000 but not $1,276 plus 3.15% of excess
38 over $90,000 over $45,000
39 Over $90,000 but not $2,694 plus 3.2% of excess
40 over $500,000 over $90,000
41 Over $500,000 $16,803 plus 3.4% of excess
42 over $500,000
43 (C) For taxable years beginning after two thousand nine and before two
44 thousand fifteen:
45 If the city taxable income is: The tax is:
46 Not over $21,600 2.55% of the city taxable income
47 Over $21,600 but not $551 plus 3.1% of excess
48 over $45,000 over $21,600
49 Over $45,000 but not $1,276 plus 3.15% of excess
50 over $90,000 over $45,000
S. 8578 949
1 Over $90,000 but not $2,694 plus 3.2% of excess
2 over $500,000 over $90,000
3 Over $500,000 $15,814 plus 3.4% of excess
4 over $500,000
5 (2) Resident heads of households. The tax under this section for each
6 taxable year on the city taxable income of every city resident head of a
7 household shall be determined in accordance with the following tables:
8 (A) For taxable years beginning after two thousand sixteen:
9 If the city taxable income is: The tax is:
10 Not over $14,400 2.7% of the city taxable income
11 Over $14,400 but not $389 plus 3.3% of excess
12 over $30,000 over $14,400
13 Over $30,000 but not $904 plus 3.35% of excess
14 over $60,000 over $30,000
15 Over $60,000 $1,909 plus 3.4% of excess
16 over $60,000
17 (B) For taxable years beginning after two thousand fourteen and before
18 two thousand seventeen:
19 If the city taxable income is: The tax is:
20 Not over $14,400 2.55% of the city taxable income
21 Over $14,400 but not $367 plus 3.1% of excess
22 over $30,000 over $14,400
23 Over $30,000 but not $851 plus 3.15% of excess
24 over $60,000 over $30,000
25 Over $60,000 but not $1,796 plus 3.2% of excess
26 over $500,000 over $60,000
27 Over $500,000 $16,869 plus 3.4% of excess
28 over $500,000
29 (C) For taxable years beginning after two thousand nine and before two
30 thousand fifteen:
31 If the city taxable income is: The tax is:
32 Not over $14,400 2.55% of the city taxable income
33 Over $14,400 but not $367 plus 3.1% of excess
34 over $30,000 over $14,400
35 Over $30,000 but not $851 plus 3.15% of excess
36 over $60,000 over $30,000
37 Over $60,000 but not $1,796 plus 3.2% of excess
38 over $500,000 over $60,000
39 Over $500,000 $15,876 plus 3.4% of excess
40 over $500,000
41 (3) Resident unmarried individuals, resident married individuals
42 filing separate returns and resident estates and trusts. The tax under
43 this section for each taxable year on the city taxable income of every
44 city resident individual who is not a married individual who makes a
45 single return jointly with his or her spouse under subdivision (b) of
46 section 11-1751 of this chapter or a city resident head of a household
47 or a city resident surviving spouse, and on the city taxable income of
48 every city resident estate and trust shall be determined in accordance
49 with the following tables:
S. 8578 950
1 (A) For taxable years beginning after two thousand sixteen:
2 If the city taxable income is: The tax is:
3 Not over $12,000 2.7% of the city taxable income
4 Over $12,000 but not $324 plus 3.3% of excess
5 over $25,000 over $12,000
6 Over $25,000 but not $753 plus 3.35% of excess
7 over $50,000 over $25,000
8 Over $50,000 $1,591 plus 3.4% of excess
9 over $50,000
10 (B) For taxable years beginning after two thousand fourteen and before
11 two thousand seventeen:
12 If the city taxable income is: The tax is:
13 Not over $12,000 2.55% of the city taxable income
14 Over $12,000 but not $306 plus 3.1% of excess
15 over $25,000 over $12,000
16 Over $25,000 but not $709 plus 3.15% of excess
17 over $50,000 over $25,000
18 Over $50,000 but not $1,497 plus 3.2% of excess
19 over $500,000 over $50,000
20 Over $500,000 $16,891 plus 3.4% of excess
21 over $500,000
22 (C) For taxable years beginning after two thousand nine and before two
23 thousand fifteen:
24 If the city taxable income is: The tax is:
25 Not over $12,000 2.55% of the city taxable income
26 Over $12,000 but not $306 plus 3.1% of excess
27 over $25,000 over $12,000
28 Over $25,000 but not $709 plus 3.15% of excess
29 over $50,000 over $25,000
30 Over $50,000 but not $1,497 plus 3.2% of excess
31 over $500,000 over $50,000
32 Over $500,000 $15,897 plus 3.4% of excess
33 over $500,000
34 (b) Rate of tax. A tax imposed pursuant to this section shall be
35 determined as follows:
36 (1) Resident married individuals filing joint returns and resident
37 surviving spouses. The tax under this section for each taxable year on
38 the city taxable income of every city resident married individual who
39 makes a single return jointly with his or her spouse under subdivision
40 (b) of section 11-1751 of this chapter and on the city taxable income of
41 every city resident surviving spouse shall be determined in accordance
42 with the following table:
43 For taxable years beginning after two thousand twenty-six:
44 If the city taxable income is: The tax is:
45 Not over $21,600 1.18% of the city taxable income
46 Over $21,600 but not $255 plus 1.435% of excess
47 over $45,000 over $21,600
48 Over $45,000 but not $591 plus 1.455% of excess
S. 8578 951
1 over $90,000 over $45,000
2 Over $90,000 $1,245 plus 1.48% of excess
3 over $90,000
4 (2) Resident heads of households. The tax under this section for each
5 taxable year on the city taxable income of every city resident head of a
6 household shall be determined in accordance with the following table:
7 For taxable years beginning after two thousand twenty-six:
8 If the city taxable income is: The tax is:
9 Not over $14,400 1.18% of the city taxable income
10 Over $14,400 but not $170 plus 1.435% of excess
11 over $30,000 over $14,400
12 Over $30,000 but not $394 plus 1.455% of excess
13 over $60,000 over $30,000
14 Over $60,000 $830 plus 1.48% of excess
15 over $60,000
16 (3) Resident unmarried individuals, resident married individuals
17 filing separate returns and resident estates and trusts. The tax under
18 this section for each taxable year on the city taxable income of every
19 city resident individual who is not a married individual who makes a
20 single return jointly with his or her spouse under subdivision (b) of
21 section 11-1751 of this chapter or a city resident head of a household
22 or a city resident surviving spouse, and on the city taxable income of
23 every city resident estate and trust shall be determined in accordance
24 with the following table:
25 For taxable years beginning after two thousand twenty-six:
26 If the city taxable income is: The tax is:
27 Not over $12,000 1.18% of the city taxable income
28 Over $12,000 but not $142 plus 1.435% of excess
29 over $25,000 over $12,000
30 Over $25,000 but not $328 plus 1.455% of excess
31 over $50,000 over $25,000
32 Over $50,000 $692 plus 1.48% of excess
33 over $50,000
34 (c) Partners and partnerships. A partnership as such shall not be
35 subject to tax under this chapter. Persons carrying on business as part-
36 ners shall be liable for tax under this chapter only in their separate
37 or individual capacities. As used in this chapter, the term "partner-
38 ship" shall include, unless a different meaning is clearly required, a
39 subchapter K limited liability company. The term "subchapter K limited
40 liability company" shall mean a limited liability company classified as
41 a partnership for federal income tax purposes. The term "limited liabil-
42 ity company" means a domestic limited liability company or a foreign
43 limited liability company, as defined in section one hundred two of the
44 limited liability company law, a limited liability investment company
45 formed pursuant to section five hundred seven of the banking law, or a
46 limited liability company formed pursuant to section one hundred two-a
47 of the banking law.
48 (d) Associations taxable as corporations. An association, trust or
49 other unincorporated organization which is taxable as a corporation for
50 federal income tax purposes shall not be subject to tax under this chap-
51 ter.
S. 8578 952
1 (e) Exempt trusts and organizations. A trust or other unincorporated
2 organization which by reason of its purposes or activities is exempt
3 from federal income tax shall be exempt from tax under this chapter,
4 regardless of whether subject to federal and state income tax on unre-
5 lated business taxable income.
6 (f) Cross references. For definitions of city taxable income of:
7 (1) City resident individual, see section 11-1711 of this chapter.
8 (2) City resident estate or trust, see section 11-1718 of this chap-
9 ter.
10 (g) Rate of tax. For taxable years beginning after two thousand two
11 and before two thousand six, the tax imposed pursuant to this section
12 shall be determined as follows:
13 (1) Resident married individuals filing joint returns and resident
14 surviving spouses. The tax under this section for each taxable year on
15 the city taxable income of every city resident married individual who
16 makes a single return jointly with his or her spouse under subdivision
17 (b) of section 11-1751 of this chapter and on the city taxable income of
18 every city resident surviving spouse shall be determined in accordance
19 with the following tables:
20 (A) For taxable years beginning in two thousand five:
21 If the city taxable income is: The tax is:
22 Not over $21,600 2.907% of the city taxable income
23 Over $21,600 but not over $45,000 $628 plus 3.534% of excess over
24 $21,600
25 Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over
26 $45,000
27 Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over
28 $90,000
29 Over $150,000 but not over $500,000 $5,260 plus 4.05% of excess over
30 $150,000
31 Over $500,000 $19,435 plus 4.45% of excess over
32 $500,000
33 (B) For taxable years beginning in two thousand four:
34 If the city taxable income is: The tax is:
35 Not over $21,600 2.907% of the city taxable income
36 Over $21,600 but not over $45,000 $628 plus 3.534% of excess over
37 $21,600
38 Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over
39 $45,000
40 Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over
41 $90,000
42 Over $150,000 but not over $500,000 $5,260 plus 4.175% of excess over
43 $150,000
44 Over $500,000 $19,872 plus 4.45% of excess over
45 $500,000
46 (C) For taxable years beginning in two thousand three:
47 If the city taxable income is: The tax is:
48 Not over $21,600 2.907% of the city taxable income
49 Over $21,600 but not over $45,000 $628 plus 3.534% of excess over
S. 8578 953
1 $21,600
2 Over $45,000 but not over $90,000 $1,455 plus 3.591% of excess over
3 $45,000
4 Over $90,000 but not over $150,000 $3,071 plus 3.648% of excess over
5 $90,000
6 Over $150,000 but not over $500,000 $5,260 plus 4.25% of excess over
7 $150,000
8 Over $500,000 $20,135 plus 4.45% of excess over
9 $500,000
10 (2) Resident heads of households. The tax under this section for each
11 taxable year on the city taxable income of every city resident head of a
12 household shall be determined in accordance with the following tables:
13 (A) For taxable years beginning in two thousand five:
14 If the city taxable income is: The tax is:
15 Not over $14,400 2.907% of the city taxable income
16 Over $14,400 but not over $30,000 $419 plus 3.534% of excess over
17 $14,400
18 Over $30,000 but not over $60,000 $970 plus 3.591% of excess over
19 $30,000
20 Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over
21 $60,000
22 Over $125,000 but not over $500,000 $4,418 plus 4.05% of excess over
23 $125,000
24 Over $500,000 $19,606 plus 4.45% of excess over
25 $500,000
26 (B) For taxable years beginning in two thousand four:
27 If the city taxable income is: The tax is:
28 Not over $14,400 2.907% of the city taxable income
29 Over $14,400 but not over $30,000 $419 plus 3.534% of excess over
30 $14,400
31 Over $30,000 but not over $60,000 $970 plus 3.591% of excess over
32 $30,000
33 Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over
34 $60,000
35 Over $125,000 but not over $500,000 $4,418 plus 4.175% of excess over
36 $125,000
37 Over $500,000 $20,075 plus 4.45% of excess over
38 $500,000
39 (C) For taxable years beginning in two thousand three:
40 If the city taxable income is: The tax is:
41 Not over $14,400 2.907% of the city taxable income
42 Over $14,400 but not over $30,000 $419 plus 3.534% of excess over
43 $14,400
44 Over $30,000 but not over $60,000 $970 plus 3.591% of excess over
45 $30,000
46 Over $60,000 but not over $125,000 $2,047 plus 3.648% of excess over
47 $60,000
48 Over $125,000 but not over $500,000 $4,418 plus 4.25% of excess over
S. 8578 954
1 $125,000
2 Over $500,000 $20,356 plus 4.45% of excess over
3 $500,000
4 (3) Resident unmarried individuals, resident married individuals
5 filing separate returns and resident estates and trusts. The tax under
6 this section for each taxable year on the city taxable income of every
7 city resident individual who is not a married individual who makes a
8 single return jointly with his or her spouse under subdivision (b) of
9 section 11-1751 of this chapter or a city resident head of household or
10 a city resident surviving spouse, and on the city taxable income of
11 every city resident estate and trust shall be determined in accordance
12 with the following tables:
13 (A) For taxable years beginning in two thousand five:
14 If the city taxable income is: The tax is:
15 Not over $12,000 2.907% of the city taxable income
16 Over $12,000 but not over $25,000 $349 plus 3.534% of excess over
17 $12,000
18 Over $25,000 but not over $50,000 $808 plus 3.591% of excess over
19 $25,000
20 Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over
21 $50,000
22 Over $100,000 but not over $500,000 $3,530 plus 4.05% of excess over
23 $100,000
24 Over $500,000 $19,730 plus 4.45% of excess over
25 $500,000
26 (B) For taxable years beginning in two thousand four:
27 If the city taxable income is: The tax is:
28 Not over $12,000 2.907% of the city taxable income
29 Over $12,000 but not over $25,000 $349 plus 3.534% of excess over
30 $12,000
31 Over $25,000 but not over $50,000 $808 plus 3.591% of excess over
32 $25,000
33 Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over
34 $50,000
35 Over $100,000 but not over $500,000 $3,530 plus 4.175% of excess over
36 $100,000
37 Over $500,000 $20,230 plus 4.45% of excess over
38 $500,000
39 (C) For taxable years beginning in two thousand three:
40 If the city taxable income is: The tax is:
41 Not over $12,000 2.907% of the city taxable income
42 Over $12,000 but not over $25,000 $349 plus 3.534% of excess over
43 $12,000
44 Over $25,000 but not over $50,000 $808 plus 3.591% of excess over
45 $25,000
46 Over $50,000 but not over $100,000 $1,706 plus 3.648% of excess over
47 $50,000
48 Over $100,000 but not over $500,000 $3,530 plus 4.25% of excess over
S. 8578 955
1 $100,000
2 Over $500,000 $20,530 plus 4.45% of excess over
3 $500,000
4 (h) Tax table benefit recapture. For taxable years beginning after two
5 thousand two and before two thousand six, there is hereby imposed a
6 supplemental tax, in addition to the tax imposed under the opening para-
7 graph of this section, for the purpose of recapturing the benefit of the
8 tax tables contained in subdivision (g) of this section. The supple-
9 mental tax shall be an amount equal to the sum of the tax table benefits
10 in paragraphs one and two of this subdivision multiplied by their
11 respective fractions in such paragraphs provided, however, that para-
12 graph one of this subdivision shall not apply to taxpayers who are not
13 subject to the second highest rate of tax.
14 (1) Resident married individuals filing joint returns, surviving
15 spouses, resident heads of households, resident unmarried individuals,
16 resident married individuals filing separate returns and resident
17 estates and trusts. (A) The tax table benefit is the difference between
18 (i) the amount of taxable income set forth in the tax table in subdivi-
19 sion (g) of this section not subject to the second highest rate of tax
20 for the taxable year multiplied by such rate and (ii) the second highest
21 dollar denominated tax for such amount of taxable income set forth in
22 the tax table applicable to the taxable year in subdivision (g) of this
23 section.
24 (B) The fraction is computed as follows: the numerator is the lesser
25 of fifty thousand dollars or the excess of New York adjusted gross
26 income for the taxable year over one hundred fifty thousand dollars and
27 the denominator is fifty thousand dollars.
28 (C) This paragraph shall only apply to taxable years beginning after
29 two thousand two and before two thousand six.
30 (2) Resident married individuals filing joint returns, surviving
31 spouses, resident heads of households, resident unmarried individuals,
32 resident married individuals filing separate returns and resident
33 estates and trusts. (A) The tax table benefit is the difference between
34 (i) the amount of taxable income set forth in the tax table in subdivi-
35 sion (g) of this section not subject to the highest rate of tax for the
36 taxable year multiplied by such rate and (ii) the highest dollar denomi-
37 nated tax for such amount of taxable income set forth in the tax table
38 applicable to the taxable year in subdivision (g) of this section less
39 the sum of the tax table benefits in paragraph one of this subdivision.
40 (B) For such taxpayers with adjusted gross income over five hundred
41 thousand dollars, the fraction is one. Provided, however, that the total
42 tax prior to the application of any tax credits shall not exceed the
43 highest rate of tax set forth in the tax table in subdivision (g) of
44 this section multiplied by the taxpayer's taxable income.
45 (C) This paragraph shall only apply to taxable years beginning after
46 two thousand two and before two thousand six.
47 § 11-1703 Separate tax on the ordinary income portion of lump sum
48 distributions. (a) Imposition of separate tax. In addition to any other
49 tax imposed by this chapter, there is hereby imposed for each taxable
50 year a separate tax on the ordinary income portion of a lump sum
51 distribution of every city resident individual, estate and trust which
52 has made an election of lump sum treatment under subsection (e) of
53 section four hundred two of the internal revenue code. The recipient of
54 a lump sum distribution shall be liable for the tax imposed by this
55 section. The credits against tax under this chapter, except for the
S. 8578 956
1 credit under section 11-1773, shall not be allowed against the tax
2 imposed by this section.
3 (b) Cross reference. For computation of tax, see section 11-1724 of
4 this chapter.
5 § 11-1704 Tax surcharge. (a) In addition to the taxes imposed by
6 sections 11-1701 and 11-1703 of this subchapter, there is hereby imposed
7 for each taxable year beginning after nineteen hundred eighty-nine but
8 before nineteen hundred ninety-nine, a tax surcharge on the city taxable
9 income of every city resident individual, estate and trust.
10 (b) The tax surcharge imposed pursuant to this section shall be deter-
11 mined as follows:
12 (1) Resident married individuals filing joint returns and resident
13 surviving spouses. The tax surcharge under this section on the city
14 taxable income of every city resident married individual who makes a
15 single return jointly with his or her spouse under subdivision (b) of
16 section 11-1751 of this chapter and on the city taxable income of every
17 city resident surviving spouse shall be determined in accordance with
18 the following tables:
19 (A) For taxable years beginning after nineteen hundred eighty-nine and
20 before nineteen hundred ninety-five:
21 If the city taxable income is: The tax surcharge is:
22 Not over $15,500 0
23 Over $15,500 but not over $27,000 0.51% of city taxable income in
24 excess of $15,500
25 Over $27,000 but not over $45,000 $59 plus 0.55% of excess over
26 $27,000
27 Over $45,000 but not over $108,000 $158 plus 0.51% of excess over
28 $45,000
29 Over $108,000 $479 plus 0.51% of excess over
30 $108,000
31 (B) For taxable years beginning after nineteen hundred ninety-four but
32 before nineteen hundred ninety-nine:
33 If the city taxable income is: The tax surcharge is:
34 Not over $14,400 0
35 Over $14,400 but not over $27,000 0.51% of city taxable income in
36 excess of $14,400
37 Over $27,000 but not over $45,000 $64 plus 0.55% of excess over
38 $27,000
39 Over $45,000 but not over $108,000 $162 plus 0.51% of excess over
40 $45,000
41 Over $108,000 $484 plus 0.51% of excess over
42 $108,000
43 (2) Resident heads of households. The tax surcharge under this section
44 on the city taxable income of every city resident head of household
45 shall be determined in accordance with the following tables:
46 (A) For taxable years beginning after nineteen hundred eighty-nine and
47 before nineteen hundred ninety-five:
48 If the city taxable income is: The tax surcharge is:
49 Not over $8,800 0
50 Over $8,800 but not over $16,500 0.51% of city taxable income in
S. 8578 957
1 excess of $8,800
2 Over $16,500 but not over $27,500 $39 plus 0.55% of excess over
3 $16,500
4 Over $27,500 but not over $66,000 $100 plus 0.51% of excess over
5 $27,500
6 Over $66,000 $296 plus 0.51% of excess over
7 $66,000
8 (B) For taxable years beginning after nineteen hundred ninety-four but
9 before nineteen hundred ninety-nine:
10 If the city taxable income is: The tax surcharge is:
11 Not over $7,350 0
12 Over $7,350 but not over $9,200 0.42% of city taxable income in
13 excess of $7,350
14 Over $9,200 but not over $17,250 $7 plus 0.51% of excess over
15 $9,200
16 Over $17,250 but not over $28,750 $48 plus 0.55% of excess over
17 $17,250
18 Over $28,750 but not over $69,000 $111 plus 0.51% of excess over
19 $28,750
20 Over $69,000 $317 plus 0.51% of excess over
21 $69,000
22 (3) Resident unmarried individuals, resident married individuals
23 filing separate returns and resident estates and trusts. The tax
24 surcharge under this section on the city taxable income of every city
25 resident individual who is not a city resident married individual who
26 makes a single return jointly with his or her spouse under subdivision
27 (b) of section 11-1751 of this chapter or a city resident head of house-
28 hold or a city resident surviving spouse, and on the city taxable income
29 of every city resident estate and trust shall be determined in accord-
30 ance with the following tables:
31 (A) For taxable years beginning after nineteen hundred eighty-nine and
32 before nineteen hundred ninety-five:
33 If the city taxable income is: The tax surcharge is:
34 Not over $9,000 0
35 Over $9,000 but not over $15,000 0.51% of city taxable income in
36 excess of $9,000
37 Over $15,000 but not over $25,000 $31 plus 0.55% of excess over
38 $15,000
39 Over $25,000 but not over $60,000 $86 plus 0.51% of excess over
40 $25,000
41 Over $60,000 $264 plus 0.51% of excess over
42 $60,000
43 (B) For taxable years beginning after nineteen hundred ninety-four but
44 before nineteen hundred ninety-nine:
45 If the city taxable income is: The tax surcharge is:
46 Not over $8,400 0
47 Over $8,400 but not over $15,000 0.51% of city taxable income in
48 excess of $8,400
49 Over $15,000 but not over $25,000 $33 plus 0.55% of excess over
S. 8578 958
1 $15,000
2 Over $25,000 but not over $60,000 $88 plus 0.51% of excess over
3 $25,000
4 Over $60,000 $266 plus 0.51% of excess over
5 $60,000
6 (c) The tax surcharge imposed pursuant to this section shall be admin-
7 istered, collected and distributed by the commissioner of taxation and
8 finance in the same manner as the taxes imposed pursuant to sections
9 11-1701 and 11-1703 of this subchapter, and all of the provisions of
10 this chapter, including sections 11-1706, 11-1721 and 11-1773 of this
11 chapter, shall apply to the tax surcharge imposed by this section.
12 (d) (1) Notwithstanding subdivision (b) of this section, with respect
13 to taxable years beginning in nineteen hundred ninety-three, nineteen
14 hundred ninety-four, nineteen hundred ninety-five and nineteen hundred
15 ninety-six, the mayor shall, by August first of nineteen hundred nine-
16 ty-two, nineteen hundred ninety-four and nineteen hundred ninety-five,
17 and by September fifteenth of nineteen hundred ninety-three, transmit to
18 the commissioner of taxation and finance a certification setting forth
19 the percentage of non-achievement regarding the combined police
20 uniformed staffing level with respect to the fiscal year of the city
21 ending on the immediately preceding June thirtieth, provided, however,
22 that for the city fiscal year ending in nineteen hundred ninety-three
23 the percentage of non-achievement shall be determined by the combined
24 police uniformed staffing level existing on August thirtieth, nineteen
25 hundred ninety-three, and further provided for all such fiscal years
26 that the percentage of non-achievement shall be calculated according to
27 the procedure specified in a memorandum of understanding relating to the
28 New York city safe streets-safe city program and to the enactment of
29 this subdivision dated February eleventh, nineteen hundred ninety-one,
30 as amended, and executed by the governor, the temporary president of the
31 senate, the speaker of the assembly, the minority leader of the senate,
32 the minority leader of the assembly, the mayor and the speaker of the
33 city council, any modification of such memorandum of understanding
34 subsequently agreed upon by all such signatories in a single subsequent
35 memorandum of understanding. If such percentage of non-achievement is
36 equal to or exceeds twenty-five percent with respect to the fiscal year
37 of the city of New York ending in nineteen hundred ninety-two, twenty
38 percent with respect to the city fiscal year ending in nineteen hundred
39 ninety-three or five percent with respect to the city fiscal years
40 ending in nineteen hundred ninety-four and nineteen hundred ninety-five,
41 then the rates of the tax surcharge imposed by this section for taxable
42 years beginning in the calendar year beginning on January first next
43 succeeding such August first or September fifteenth shall be the
44 products of the rates set forth in subdivision (b) of this section and a
45 percentage equal to the difference between one hundred percent and such
46 percentage of non-achievement, such products computed to the nearest
47 hundredth of a percent, and the dollar denominated amounts of the tax
48 surcharge set forth in subdivision (b) of this section shall be reduced
49 conformably.
50 (2) Notwithstanding subdivision (b) of this section, with respect to
51 the taxable year beginning in nineteen hundred ninety-eight, the mayor
52 shall, by August first of nineteen hundred ninety-seven, transmit to the
53 state commissioner of taxation and finance a certification setting forth
54 the percentage of non-achievement regarding the police uniformed staff-
55 ing level with respect to the fiscal year ending on the immediately
S. 8578 959
1 preceding June thirtieth, provided, however, that such percentage of
2 non-achievement shall be calculated according to the procedure specified
3 in a new memorandum of understanding relating to the enactment of this
4 paragraph dated no later than thirty days after such enactment, as
5 executed by the governor, the temporary president of the senate, the
6 speaker of the assembly, the minority leader of the senate, the minority
7 leader of the assembly, the mayor and the speaker of the city council
8 and any modifications of such new memorandum of understanding subse-
9 quently agreed upon by all such signatories in a single subsequent memo-
10 randum of understanding. If such percentage of non-achievement exceeds
11 two percent with respect to the fiscal year of the city ending in nine-
12 teen hundred ninety-seven, then the rates of the tax surcharge author-
13 ized by this section for the taxable years beginning in the calendar
14 year beginning on January first, nineteen hundred ninety-eight shall be
15 the products of the rates set forth in subdivision (b) of this section
16 and a percentage equal to the difference between one hundred percent and
17 the portion of the percentage of non-achievement that is in excess of
18 two percent, such products computed to the nearest hundredth of a
19 percent, and the dollar denominated amounts of the tax surcharge set
20 forth in subdivision (b) of this section shall be reduced conformably.
21 (3) If the rates of the surcharge imposed by this section are modified
22 pursuant to paragraph one or paragraph two of this subdivision, the
23 state commissioner of taxation and finance shall promulgate regulations
24 stating the modified rates.
25 (e) Notwithstanding anything in this section or section 11-1798 of
26 this chapter to the contrary, of the total revenue, including interest
27 and penalties, from the tax surcharge imposed by this section which the
28 state comptroller is required to pay, after June thirtieth, nineteen
29 hundred ninety-two, to the chief fiscal officer of the city for payment
30 into the treasury of the city, one hundred ten million dollars thereof
31 paid to the chief fiscal officer during the fiscal year of the city
32 commencing July first, nineteen hundred ninety-two, two hundred million
33 dollars thereof paid to the chief fiscal officer during the fiscal year
34 of the city commencing July first, nineteen hundred ninety-three, one
35 hundred sixty-seven million dollars thereof paid to the chief fiscal
36 officer during the fiscal year of the city commencing July first, nine-
37 teen hundred ninety-four, and one hundred eighty-five million dollars
38 thereof paid to the chief fiscal officer during the fiscal year of the
39 city commencing July first, nineteen hundred ninety-five, shall be cred-
40 ited to and deposited in the criminal justice account established within
41 the general fund of the city for the implementation of the safe streets-
42 safe city program. The balance of such revenue shall be credited to the
43 general fund of the city and shall be applied exclusively to or in aid
44 or support of the city's provision of criminal justice and fire
45 protection services.
46 (f) Notwithstanding anything in this article to the contrary, of the
47 total revenue, including interest and penalties, from the tax surcharge
48 imposed pursuant to the authority of this section which the state comp-
49 troller is required to pay to the chief fiscal officer of the city for
50 payment into the treasury of the city, ninety million dollars thereof
51 paid to such chief fiscal officer during the fiscal year of the city
52 commencing during calendar year nineteen hundred ninety-six, and one
53 hundred eighty-five million dollars thereof paid to such chief fiscal
54 officer during the fiscal year of the city commencing during calendar
55 year nineteen hundred ninety-seven, shall be credited to and deposited
56 in a criminal justice account established by the city within its general
S. 8578 960
1 fund. The balance of such revenue from such tax surcharge which the
2 state comptroller is required to pay to such chief fiscal officer for
3 payment into the treasury of the city for the taxable years beginning in
4 the calendar years beginning on January first, nineteen hundred ninety-
5 seven and January first, nineteen hundred ninety-eight shall be credited
6 to the general fund of the city to be applied exclusively to or in aid
7 or support of the city's provision of criminal justice and fire
8 protection services; provided however, that, notwithstanding the forego-
9 ing, such balance shall be applied to implementation of the capital
10 program for public schools within the city and a supplemental capital
11 rehabilitation program for such schools, to the extent that such appli-
12 cation is necessary for the timely implementation of such programs in
13 accordance with the memorandum of understanding executed pursuant to
14 paragraph two of subdivision (d) of this section and any modifications
15 thereto.
16 § 11-1704.1 Additional tax. (a) (1) In addition to any other taxes
17 imposed by this chapter, there is hereby imposed for each taxable year
18 beginning after nineteen hundred ninety but before two thousand twenty-
19 seven, an additional tax on the city taxable income of every city resi-
20 dent individual, estate and trust, to be calculated for each taxable
21 year as follows: (i) for each taxable year beginning after nineteen
22 hundred ninety but before nineteen hundred ninety-nine, at the rate of
23 fourteen percent of the sum of the taxes for each such taxable year
24 determined pursuant to section 11-1701 and section 11-1704 of this
25 subchapter; and (ii) for each taxable year beginning after nineteen
26 hundred ninety-eight, at the rate of fourteen percent of the tax for
27 such taxable year determined pursuant to such section 11-1701 of this
28 subchapter.
29 (2) Notwithstanding paragraph one of this subdivision, for each taxa-
30 ble year beginning after two thousand but before two thousand two, the
31 additional tax shall be calculated as follows: (i) Resident married
32 individuals filing joint returns and resident surviving spouses. The
33 additional tax under this section for each taxable year on the tax
34 determined pursuant to section 11-1701 of this subchapter of every city
35 resident married individual who makes a single return jointly with his
36 or her spouse under subdivision (b) of section 11-1751 of this chapter
37 and on the tax determined pursuant to section 11-1701 of this subchapter
38 of every city resident surviving spouse shall be determined as follows:
39 (A) If the tax determined pursuant to section 11-1701 of this subchapter
40 is based on city taxable income equal to or less than ninety thousand
41 dollars, then the additional tax shall be 5.25% of such tax; (B) If the
42 tax determined pursuant to section 11-1701 of this subchapter is based
43 on city taxable income over ninety thousand dollars, then the additional
44 tax shall be the sum of 5.25% of such tax on city taxable income up to
45 and including ninety thousand dollars and 12.25% of such tax on city
46 taxable income in excess of ninety thousand dollars.
47 (ii) Resident heads of households. The additional tax under this
48 section for each taxable year on the tax determined pursuant to section
49 11-1701 of this subchapter of every city resident head of a household
50 shall be determined as follows: (A) If the tax determined pursuant to
51 section 11-1701 of this subchapter is based on city taxable income equal
52 to or less than sixty thousand dollars, then the additional tax shall be
53 5.25% of such tax; (B) If the tax determined pursuant to section 11-1701
54 of this subchapter is based on city taxable income over sixty thousand
55 dollars, then the additional tax shall be the sum of 5.25% of such tax
56 on city taxable income up to and including sixty thousand dollars and
S. 8578 961
1 12.25% of such tax on city taxable income in excess of sixty thousand
2 dollars.
3 (iii) Resident unmarried individuals, resident married individuals
4 filing separate returns and resident estates and trusts. The additional
5 tax under this section for each taxable year on the tax determined
6 pursuant to section 11-1701 of this subchapter of every city resident
7 individual who is not a married individual who makes a single return
8 jointly with his or her spouse under subdivision (b) of section 11-1751
9 of this chapter or a city resident head of a household or a city resi-
10 dent surviving spouse, and on the tax determined pursuant to section
11 11-1701 of this subchapter of every city resident estate and trust shall
12 be determined as follows: (A) If the tax determined pursuant to section
13 11-1701 of this subchapter is based on city taxable income equal to or
14 less than fifty thousand dollars, then the additional tax shall be 5.25%
15 of such tax; (B) If the tax determined pursuant to section 11-1701 of
16 this subchapter is based on city taxable income over fifty thousand
17 dollars, then the additional tax shall be the sum of 5.25% of such tax
18 on city taxable income up to and including fifty thousand dollars and
19 12.25% of such tax on city taxable income in excess of fifty thousand
20 dollars.
21 (b) The additional tax imposed pursuant to this section shall be
22 administered, collected and distributed by the commissioner of taxation
23 and finance in the same manner as the other taxes imposed pursuant to
24 this chapter, and all of the provisions of this chapter, including
25 sections 11-1706, 11-1721 and 11-1773, shall apply to the additional tax
26 imposed by this section.
27 § 11-1705 General provisions and definitions. (a) Accounting periods
28 and methods. (1) Accounting periods. A taxpayer's taxable year under
29 this chapter shall be the same as his or her taxable year for federal
30 income tax purposes.
31 (2) Change of accounting periods. If a taxpayer's taxable year is
32 changed for federal income tax purposes, his or her taxable year for
33 purposes of this chapter shall be similarly changed. If a taxable year
34 of less than twelve months results from a change of taxable year, the
35 city standard deduction and the city exemptions shall be prorated under
36 regulations of the tax commission.
37 (3) Accounting methods. A taxpayer's method of accounting under this
38 chapter shall be the same as his or her method of accounting for federal
39 income tax purposes. In the absence of any method of accounting for
40 federal income tax purposes, city taxable income shall be computed under
41 such method as in the opinion of the tax commission clearly reflects
42 income.
43 (4) Change of accounting methods. (A) If a taxpayer's method of
44 accounting is changed for federal income tax purposes, his or her method
45 of accounting for purposes of this chapter shall be similarly changed.
46 (B) If a taxpayer's method of accounting is changed, other than from
47 an accrual to an installment method, any additional tax which results
48 from adjustments determined to be necessary solely by reason of the
49 change shall not be greater than if such adjustments were ratably allo-
50 cated and included for the taxable year of the change and the preceding
51 taxable years, not in excess of two, during which the taxpayer used the
52 method of accounting from which the change is made.
53 (C) If a taxpayer's method of accounting is changed from an accrual to
54 an installment method, any additional tax for the year of such change of
55 method and for any subsequent year which is attributable to the receipt
56 of installment payments properly accrued in a prior year, shall be
S. 8578 962
1 reduced by the portion of tax for any prior taxable year attributable to
2 the accrual of such installment payments, in accordance with regulations
3 of the tax commission.
4 (b) City resident and city nonresident defined. (1) City resident
5 individual. A city resident individual means an individual:
6 (A) who is domiciled in this city, unless (i) the taxpayer maintains
7 no permanent place of abode in this city, maintains a permanent place of
8 abode elsewhere, and spends in the aggregate not more than thirty days
9 of the taxable year in this city, or (ii) (I) within any period of five
10 hundred forty-eight consecutive days the taxpayer is present in a
11 foreign country or countries for at least four hundred fifty days, and
12 (II) during the period of five hundred forty-eight consecutive days the
13 taxpayer, the taxpayer's spouse, unless such spouse is legally sepa-
14 rated, and the taxpayer's minor children are not present in this city
15 for more than ninety days, and (III) during any period of less than
16 twelve months, which would be treated as a separate taxable period
17 pursuant to section 11-1754 of this chapter, and which period is
18 contained within the period of five hundred forty-eight consecutive
19 days, the taxpayer is present in this city for a number of days which
20 does not exceed an amount which bears the same ratio to ninety as the
21 number of days contained in that period of less than twelve months bears
22 to five hundred forty-eight, or
23 (B) who maintains a permanent place of abode in this city and spends
24 in the aggregate more than one hundred eighty-three days of the taxable
25 year in this city, whether or not domiciled in this city for any portion
26 of the taxable year, unless such individual is in active service in the
27 armed forces of the United States.
28 (2) City nonresident individual. A city nonresident individual means
29 an individual who is not a city resident.
30 (3) City resident estate or trust. A city resident estate or trust
31 means:
32 (A) the estate of a decedent who at his or her death was domiciled in
33 this city,
34 (B) a trust, or a portion of a trust, consisting of property trans-
35 ferred by will of a decedent who at his or her death was domiciled in
36 this city, or
37 (C) a trust, or portion of a trust, consisting of the property of:
38 (i) a person domiciled in this city at the time such property was
39 transferred to the trust, if such trust or portion of a trust was then
40 irrevocable, or if it was then revocable and has not subsequently become
41 irrevocable; or
42 (ii) a person domiciled in this city at the time such trust, or
43 portion of a trust, became irrevocable, if it was revocable when such
44 property was transferred to the trust but has subsequently become irrev-
45 ocable.
46 For the purposes of this paragraph, a trust or portion of a trust is
47 revocable if it is subject to a power, exercisable immediately or at any
48 future time, to revest title in the person whose property constitutes
49 such trust or portion of a trust, and a trust or portion of a trust
50 becomes irrevocable when the possibility that such power may be exer-
51 cised has been terminated.
52 (D) (i) Provided, however, a resident trust is not subject to tax
53 under this article if all of the following conditions are satisfied:
54 (I) all the trustees are domiciled outside the city of New York; (II)
55 the entire corpus of the trusts, including real and tangible property,
56 is located outside the city of New York; and (III) all income and gains
S. 8578 963
1 of the trust are derived from or connected with sources outside of the
2 city of New York, determined as if the trust were a non-resident trust.
3 (ii) For purposes of item (II) of clause (i) of this subparagraph,
4 intangible property shall be located in this city if one or more of the
5 trustees are domiciled in the city of New York.
6 (iii) Provided further, that for the purposes of item (I) of clause
7 (i) of this subparagraph, a trustee which is a banking corporation as
8 defined in subdivision (a) of section 11-640 of this title and which is
9 domiciled outside the city of New York at the time it becomes a trustee
10 of the trust shall be deemed to continue to be a trustee domiciled
11 outside the city of New York notwithstanding that it thereafter other-
12 wise becomes a trustee domiciled in the city of New York by virtue of
13 being acquired by, or becoming an office or branch of, a corporate trus-
14 tee domiciled within the city of New York.
15 For the purposes of this subparagraph, a trust or portion of a trust
16 is revocable if it is subject to a power, exercisable immediately or at
17 any future time, to revest title in the person whose property consti-
18 tutes such trust or portion of a trust, and a trust or portion of a
19 trust becomes irrevocable when the possibility that such power may be
20 exercised has been terminated.
21 (4) City nonresident estate or trust. A city nonresident estate or
22 trust means an estate or trust which is not a city resident estate or
23 trust.
24 (5) Cross reference. For effect of a change of resident status, see
25 section 11-1754 of this chapter.
26 § 11-1706 Credits against tax. (a) Credit relating to net capital
27 gain. For taxable years beginning in nineteen hundred eighty-seven, a
28 credit against the tax imposed under section 11-1701 of this subchapter
29 shall be allowed. The amount of the credit shall be one-half of one
30 percent of net capital gain includible in city adjusted gross income for
31 the taxable year. The credit allowed by this subdivision shall not
32 exceed the tax imposed by section 11-1701 of this subchapter reduced by
33 the credits permitted under section 11-1721 of this chapter and subdivi-
34 sion (b) of this section.
35 (b) Household credit. (1) For taxable years beginning after nineteen
36 hundred eighty-six, a credit against the city personal income tax
37 imposed by section 11-1701 of this subchapter shall be allowed. The
38 credit, computed as described in paragraph two of this subdivision,
39 shall not exceed the tax imposed by section 11-1701 of this subchapter,
40 reduced by the credit permitted under section 11-1721 of this chapter.
41 (2) (A) For any individual who is not married nor the head of a house-
42 hold nor a surviving spouse, the amount of the credit shall be deter-
43 mined in accordance with the following table:
44 ------------------------------------------------------------------------
45 If household gross The credit shall be:
46 income is:
47 For taxable years For taxable years
48 beginning after beginning after
49 1986 and before 1995
50 1996
51 ------------------------------------------------------------------------
52 Not over $7,500 $15 $15
53 Over $7,500 but not over
54 $10,000 $10 $15
S. 8578 964
1 Over $10,000 but not over
2 $12,500 $0 $10
3 (B) For any husband and wife, head of household or surviving spouse,
4 the amount of the credit shall be determined by multiplying the number
5 of exemptions for which the taxpayer, or in the case of a husband and
6 wife, taxpayers, is entitled to a deduction for the taxable year for
7 federal income tax purposes under subsections (b) and (c) of section one
8 hundred fifty-one of the internal revenue code by the credit factor for
9 the taxable year as specified in the following table:
10 ------------------------------------------------------------------------
11 If household gross The credit factor is:
12 income is:
13 For taxable years
14 beginning in
15 1987 1988
16 1989 For taxable years
17 through beginning after
18 1995 1995
19 ------------------------------------------------------------------------
20 Not over $12,500 $30 $50 $50 $30
21 Over $12,500 but not
22 over $15,000 $20 $40 $50 $30
23 Over $15,000 but not
24 over $17,500 $10 $20 $25 $25
25 Over $17,500 but not
26 over $20,000 $0 $15 $15 $15
27 Over $20,000 but not
28 over $22,500 $0 $0 $0 $10
29 (3) For purposes of this subdivision:
30 (A) "Household gross income" shall mean the aggregate federal adjusted
31 gross income of a household, as the term household is defined in subpar-
32 agraph (B) of this paragraph, for the taxable year.
33 (B) "Household" means a husband and wife, a head of household, a
34 surviving spouse, or an individual who is not married nor the head of a
35 household nor a surviving spouse nor a taxpayer with respect to whom a
36 deduction under subsection (c) of section one hundred fifty-one of the
37 internal revenue code is allowable to another taxpayer for the taxable
38 year.
39 (C) "Household gross income of a husband and wife" shall be the aggre-
40 gate of their federal adjusted gross incomes for the taxable year irre-
41 spective of whether joint or separate city income tax returns are filed.
42 Provided, however, that a husband or wife who is required to file a
43 separate city income tax return shall be permitted one-half the credit
44 otherwise allowed his or her household, except as limited by paragraph
45 one of this subdivision.
46 (D) "Household gross income" shall be computed in all cases as if each
47 member of the household were a resident for the entire taxable year.
48 (E) If a taxpayer changes his or her status during his or her taxable
49 year from resident to nonresident, or from nonresident to resident, the
50 household credit shall be prorated according to the number of months in
51 the period of residence. In the case of a husband and wife, if either or
S. 8578 965
1 both changes his or her status from resident to nonresident or from
2 nonresident to resident and separate returns are filed, the credit
3 computed for the entire year shall be divided first as provided in
4 subparagraph (C) of this paragraph and then prorated according to the
5 number of months in the period of residence.
6 (c) State school tax reduction credit.
7 (1) For taxable years beginning after nineteen hundred ninety-seven
8 and ending before two thousand sixteen, a state school tax reduction
9 credit shall be allowed as provided in the following tables. The credit
10 shall be allowed against the taxes authorized by this article reduced by
11 the credits permitted by this article. If the credit exceeds the tax as
12 so reduced, the taxpayer may receive, and the comptroller, subject to a
13 certificate of the commissioner, shall pay as an overpayment, without
14 interest, the amount of such excess. For purposes of this subdivision,
15 no credit shall be granted to an individual with respect to whom a
16 deduction under subsection (c) of section one hundred fifty-one of the
17 internal revenue code is allowable to another taxpayer for the taxable
18 year.
19 (2) The amount of the credit under this paragraph shall be determined
20 based upon the taxpayer's income as defined in subparagraph (ii) of
21 paragraph (b) of subdivision four of section four hundred twenty-five of
22 the real property tax law. For purposes of this paragraph, any taxpayer
23 under subparagraphs (A) and (B) of this paragraph with income of more
24 than two hundred fifty thousand dollars shall not receive a credit.
25 Beginning in the two thousand ten tax year and each tax year thereaft-
26 er through two thousand fifteen, the "more than two hundred fifty thou-
27 sand dollar" income limitation shall be adjusted by applying the
28 inflation factor set forth herein, and rounding each result to the near-
29 est multiple of one hundred dollars. The department shall establish the
30 income limitation to be associated with each subsequent tax year by
31 applying the inflation factor set forth herein to the figures that
32 define the income limitation that were applicable to the preceding tax
33 year, as determined pursuant to this subdivision, and rounding each
34 result to the nearest multiple of one hundred dollars. Such determi-
35 nation shall be made no later than March first, two thousand ten and
36 each year thereafter.
37 (A) Married individuals filing joint returns and surviving spouses. In
38 the case of a husband and wife who make a single return jointly and of a
39 surviving spouse:
40 For taxable years beginning: The credit shall be:
41 in 2001-2005 $125
42 in 2006 $230
43 in 2007-2008 $290
44 in 2009-2015 $125
45 (B) All others. In the case of an unmarried individual, a head of a
46 household or a married individual filing a separate return:
47 For taxable years beginning: The credit shall be:
48 in 2001-2005 $62.50
49 in 2006 $115
50 in 2007-2008 $145
51 in 2009-2015 $62.50
52 (4) Husband and wife who make a joint return. If a husband and wife
53 make a single return jointly, the credit under this subdivision shall be
54 determined under paragraph two of this subdivision, if either of them
55 has attained the age of sixty-five on or before the close of the taxable
56 year.
S. 8578 966
1 (5) Part-year residents. If a taxpayer changes status during the taxa-
2 ble year from resident to nonresident, or from nonresident to resident,
3 the state school tax reduction credit shall be prorated according to the
4 number of months in the period of residence.
5 (c) Credit for unincorporated business taxes paid. (1) A city resident
6 individual, estate or trust whose city adjusted gross income includes
7 income, gain, loss or deductions from one or more unincorporated busi-
8 nesses conducted by such city resident individual, estate or trust that
9 are subject to the tax imposed by chapter five of this title, or a
10 distributive share of income, gain, loss and deductions of, or guaran-
11 teed payments from, one or more partnerships that are subject to the tax
12 imposed by such chapter, shall be allowed a credit as provided in para-
13 graph two of this subdivision against the tax otherwise due under
14 sections 11-1701, 11-1703, 11-1704 and 11-1704.1 of this subchapter.
15 (2) (A) Subject to the limitation set forth in subparagraph (B) of
16 this paragraph, the credit allowed to a taxpayer for a taxable year
17 under this subdivision shall be determined as follows:
18 (i) For taxable years beginning on or after January first, nineteen
19 hundred ninety-seven and before January first, two thousand seven:
20 (I) If the city taxable income is forty-two thousand dollars or less,
21 the credit shall be sixty-five percent of the amount determined in para-
22 graph three of this subdivision.
23 (II) If the city taxable income is greater than forty-two thousand
24 dollars but not greater than one hundred forty-two thousand dollars, the
25 amount of the credit shall be a percentage of the amount determined in
26 paragraph three of this subdivision, such percentage to be determined by
27 subtracting from sixty-five percent, one-tenth of a percentage point
28 (.001) for every increment of two hundred dollars, or fractional part
29 thereof, of city taxable income in excess of forty-two thousand dollars.
30 (III) If the city taxable income is greater than one hundred forty-two
31 thousand dollars, the credit shall be fifteen percent of the amount
32 determined in paragraph three of this subdivision.
33 (ii) For taxable years beginning on or after January first, two thou-
34 sand seven:
35 (I) If the city taxable income is forty-two thousand dollars or less,
36 the credit shall be one hundred percent of the amount determined in
37 paragraph three of this subdivision.
38 (II) If the city taxable income is greater than forty-two thousand
39 dollars but less than one hundred forty-two thousand dollars, the amount
40 of the credit shall be a percentage of the amount determined in para-
41 graph three of this subdivision, such percentage to be determined by
42 subtracting from one hundred percent, a percentage determined by
43 subtracting forty-two thousand dollars from city taxable income, divid-
44 ing the result by one hundred thousand dollars and multiplying by seven-
45 ty-seven percent.
46 (III) If the city taxable income is one hundred forty-two thousand
47 dollars or greater, the credit shall be twenty-three percent of the
48 amount determined in paragraph three of this subdivision.
49 (B) Notwithstanding anything to the contrary in subparagraph (A) of
50 this paragraph, the credit allowed to a taxpayer for a taxable year
51 under this subdivision shall not exceed the sum of the taxes that would
52 otherwise be imposed by sections 11-1701, 11-1703, 11-1704 and 11-1704.1
53 of this subchapter on such taxpayer for such taxable year after the
54 allowance of any other credits allowed by this section or section
55 11-1721 of this chapter.
S. 8578 967
1 (3) Subject to the provisions of subparagraph (C) of this paragraph,
2 the amount determined in this paragraph is the sum of:
3 (A) for each unincorporated business conducted by the taxpayer, the
4 tax imposed by chapter five of this title on such unincorporated busi-
5 ness for its taxable year ending with the taxable year of the taxpayer
6 and paid by the unincorporated business; and
7 (B) for each unincorporated business in which the taxpayer is a part-
8 ner, the product of:
9 (i) the sum of (I) the tax imposed by chapter five of this title on
10 such unincorporated business for its taxable year ending within or with
11 the taxable year of the partner and paid by the unincorporated business
12 and (II) the amount of any credit or credits taken by the unincorporated
13 business under subdivision (j) of section 11-503 of this title for its
14 taxable year ending within or with the taxable year of the partner; and
15 (ii) a fraction, the numerator of which is the net total of the part-
16 ner's distributive share of income, gain, loss and deductions of, and
17 guaranteed payments from, the unincorporated business for such taxable
18 year, and the denominator of which is the sum, for such taxable year, of
19 the net total distributive shares of income, gain, loss and deductions
20 of, and guaranteed payments to, all partners in the unincorporated busi-
21 ness for whom or which such net total, as separately determined for each
22 partner, is greater than zero.
23 (C) For a taxpayer that changes its status from a city resident to a
24 city nonresident or from a city nonresident to a city resident during
25 the taxable year:
26 (i) the amount determined in subparagraph (A) of this paragraph shall
27 be, with respect to each unincorporated business conducted by the
28 taxpayer, the tax imposed by chapter five of this title on such unincor-
29 porated business for its taxable year ending with the taxable year of
30 the taxpayer and paid by the unincorporated business, multiplied by a
31 fraction, the numerator of which is that portion of the income, gain,
32 loss and deductions of the unincorporated business included in the
33 taxpayer's adjusted gross income for the portion of the taxable year
34 during which the taxpayer was a city resident, and the denominator of
35 which is the total, for such taxable year, of the income, gain, loss and
36 deductions of the unincorporated business, and
37 (ii) the amount determined in clause (ii) of subparagraph (B) of this
38 paragraph shall be a fraction, the numerator of which is that portion of
39 the taxpayer's net total distributive share of income, gain, loss and
40 deductions of, and that portion of guaranteed payments from, the unin-
41 corporated business included in the taxpayer's city adjusted gross
42 income for the portion of the taxable year during which the taxpayer was
43 a city resident, and the denominator of which is the sum, for such taxa-
44 ble year, of the net total distributive shares of income, gain, loss and
45 deductions of, and guaranteed payments to, all partners in the unincor-
46 porated business, for whom or which such net total, as separately deter-
47 mined for each partner, is greater than zero.
48 (4) For purposes of subdivision (c) of section 11-1902 of this title,
49 in determining the amount of tax that a nonresident would be required to
50 pay if such nonresident were a resident of the city and subject to the
51 tax on personal income of residents, the credit allowed by this subdivi-
52 sion shall be taken into account.
53 (d) Earned income tax credit. (1) For taxable years beginning after
54 two thousand three, a credit against the city personal income tax shall
55 be allowed, equal to five percent of the earned income credit allowed
56 under section thirty-two of the internal revenue code for the same taxa-
S. 8578 968
1 ble year, and, for taxable years beginning after two thousand twenty-
2 one, a credit against the city personal income tax shall be allowed,
3 equal to a percentage determined pursuant to subparagraphs (A) through
4 (I) of this paragraph, of the earned income credit allowed under section
5 thirty-two of the internal revenue code for the same taxable year. For
6 purposes of this paragraph, "adjusted gross income" means New York
7 adjusted gross income as determined pursuant to article twenty-two of
8 the tax law. The percentage shall be:
9 (A) thirty percent, where the taxpayer's adjusted gross income for
10 such taxable year is less than five thousand dollars;
11 (B) thirty percent reduced by the product of two-tenths of a percent-
12 age point (0.002) and the amount of the taxpayer's adjusted gross income
13 for such taxable year in excess of four thousand nine hundred ninety-
14 nine dollars, where such taxpayer's adjusted gross income for such taxa-
15 ble year is equal to or greater than five thousand dollars and less than
16 seven thousand five hundred dollars;
17 (C) twenty-five percent, where the taxpayer's adjusted gross income
18 for such taxable year is equal to or greater than seven thousand five
19 hundred dollars and less than fifteen thousand dollars;
20 (D) twenty-five percent reduced by the product of two-tenths of a
21 percentage point (0.002) and the amount of the taxpayer's adjusted gross
22 income for such taxable year in excess of fourteen thousand nine hundred
23 ninety-nine dollars, where such taxpayer's adjusted gross income for
24 such taxable year is equal to or greater than fifteen thousand dollars
25 and less than seventeen thousand five hundred dollars;
26 (E) twenty percent, where the taxpayer's adjusted gross income for
27 such taxable year is equal to or greater than seventeen thousand five
28 hundred dollars and less than twenty thousand dollars;
29 (F) twenty percent reduced by the product of two-tenths of a percent-
30 age point (0.002) and the amount of such taxpayer's adjusted gross
31 income for such taxable year in excess of nineteen thousand nine hundred
32 ninety-nine dollars, where the taxpayer's adjusted gross income for such
33 taxable year is equal to or greater than twenty thousand dollars and
34 less than twenty-two thousand five hundred dollars;
35 (G) fifteen percent, where the taxpayer's adjusted gross income for
36 such taxable year is equal to or greater than twenty-two thousand five
37 hundred dollars and less than forty thousand dollars;
38 (H) fifteen percent reduced by the product of two-tenths of a percent-
39 age point (0.002) and the amount of the taxpayer's adjusted gross income
40 for such taxable year in excess of thirty-nine thousand nine hundred
41 ninety-nine dollars, where such taxpayer's adjusted gross income for
42 such taxable year is equal to or greater than forty thousand dollars and
43 less than forty-two thousand five hundred dollars; and
44 (I) ten percent where the taxpayer's adjusted gross income for such
45 taxable year is equal to or greater than forty-two thousand five hundred
46 dollars.
47 (2) In the case of a resident taxpayer, the credit provided by this
48 subdivision shall be allowed against the taxes authorized by this chap-
49 ter for the taxable year reduced by the credits permitted by this chap-
50 ter. If the credit exceeds the tax as so reduced, the taxpayer may
51 receive, and the state comptroller, subject to a certificate of the
52 commissioner of the state department of taxation and finance, shall pay
53 as an overpayment, without interest, the amount of such excess.
54 (3) If a taxpayer changes his or her status during the taxable year
55 from city resident to city nonresident, or from city nonresident to city
56 resident, the credit determined under this subdivision shall be limited
S. 8578 969
1 to the amount determined by multiplying the amount of such credit by a
2 fraction, the numerator of which is such taxpayer's city adjusted gross
3 income, for the period of residence, and the denominator of which is
4 such taxpayer's city adjusted gross income determined as if he or she
5 were a city resident for the entire taxable year. City adjusted gross
6 income shall be adjusted as provided in section 11-1754 of this chapter.
7 The credit as so limited shall be applied as provided in paragraph two
8 of this subdivision.
9 (4) Subject to the provisions of paragraph three of this subdivision,
10 in the case of a husband and wife who file a joint return, but who are
11 required to determine their city personal income taxes separately, the
12 credit authorized pursuant to this subdivision may be applied against
13 the tax of either or divided between them as they may elect. In the case
14 of a husband and wife who are not required to file a federal return, the
15 credit under this subsection shall be allowed only if such taxpayers
16 file a joint city personal income tax return.
17 (5) If the state commissioner of taxation and finance determines that
18 the taxpayer is eligible to receive the credit provided under this
19 subdivision but has not claimed such credit on his or her return, the
20 state commissioner of taxation and finance shall compute and issue any
21 refund for the allowable credit amount provided under this subdivision.
22 Any refund paid pursuant to this paragraph shall be deemed to be a
23 refund of an overpayment of tax as provided in section 11-1786 of this
24 chapter, provided, however, that no interest shall be paid thereon.
25 (e) Credit for certain household and dependent care services necessary
26 for gainful employment. (1) For taxable years beginning on or after
27 January first, two thousand seven, a taxpayer shall be allowed a credit
28 as provided herein equal to the applicable percentage of the credit
29 allowed under subsection (c) of section six hundred six of the tax law
30 with respect to qualifying individuals as defined in paragraph one of
31 subsection (b) of section twenty-one of the internal revenue code, with-
32 out regard to whether the taxpayer in fact claimed the credit under such
33 section twenty-one for the taxable year, who are dependents of the
34 taxpayer and who have not attained the age of four as of the end of the
35 taxable year. The applicable percentage shall be determined as follows:
36 (A) If household gross income as defined in subparagraph (A) of para-
37 graph three of subdivision (b) of this section is twenty-five thousand
38 dollars or less, the applicable percentage shall be seventy-five
39 percent.
40 (B) If such household gross income is greater than twenty-five thou-
41 sand dollars but not greater than thirty thousand dollars, the applica-
42 ble percentage shall be seventy-five percent multiplied by one minus a
43 fraction, the numerator of which is such household gross income less
44 twenty-five thousand dollars and the denominator of which is five thou-
45 sand dollars.
46 (C) If such household gross income is greater than thirty thousand
47 dollars, the applicable percentage shall be zero.
48 (2) The credit under this subdivision shall be allowed against the
49 taxes imposed by this chapter reduced by the credits permitted by this
50 chapter. If the credit exceeds the tax as so reduced, the taxpayer may
51 receive, and the state comptroller, subject to the certificate of the
52 state commissioner of taxation and finance, shall pay as an overpayment,
53 without interest, the amount of such excess, provided, however, in the
54 case of a taxpayer who is a part-year resident of New York city any such
55 overpayment under this paragraph shall be limited to the amount of such
56 excess multiplied by a fraction, the numerator of which is federal
S. 8578 970
1 adjusted gross income for the period of residence, computed as if the
2 taxable year for federal income tax purposes were limited to the period
3 of residence, and the denominator of which is federal adjusted gross
4 income for the taxable year.
5 (3) In the case of a husband and wife who filed a joint federal
6 return, but who are required to determine their New York city taxes
7 separately, the credit allowed pursuant to this subdivision may only be
8 applied against the tax imposed on the spouse with the lower taxable
9 income, computed without regard to such credit, provided, however, if
10 the spouse with the lower taxable income is a nonresident of the city,
11 no credit shall be allowed under this subdivision. In the case of a
12 husband and wife who are not required to file a federal return, the
13 credit under this subdivision shall be allowed only if such taxpayers
14 file a joint New York city income tax return.
15 (f) Credit for general corporation tax paid. (1) A city resident indi-
16 vidual, estate or trust whose city adjusted gross income includes a pro
17 rata share of income, loss and deductions described in paragraph one of
18 subsection (a) of section thirteen hundred sixty-six of the internal
19 revenue code, from one or more New York S corporations as defined in
20 subdivision one-A of section two hundred eight of the tax law, or from
21 one or more QSSSs as defined in subdivision one-B of section two hundred
22 eight of the tax law, that are exempt QSSSs by reason of clause (A) of
23 subparagraph one of paragraph (k) of subdivision nine of section two
24 hundred eight of the tax law, on which a tax is imposed by subchapter
25 two of chapter six of this title, shall be allowed a credit as provided
26 in paragraph two of this subdivision against the tax otherwise due under
27 sections 11-1701, 11-1703, 11-1704 and 11-1704.1 of this chapter.
28 (2) (A) Subject to the limitations set forth in subparagraphs (B) and
29 (C) of this paragraph, the credit allowed to a taxpayer for a taxable
30 year under this subdivision shall be determined as follows:
31 (i) For taxable years beginning on or after January first, two thou-
32 sand fourteen and before July first, two thousand nineteen:
33 (I) If the city taxable income is thirty-five thousand dollars or
34 less, the amount of the credit shall be one hundred percent of the
35 amount determined in paragraph three of this subdivision.
36 (II) If the city taxable income is greater than thirty-five thousand
37 dollars but less than one hundred thousand dollars, the amount of the
38 credit shall be a percentage of the amount determined in paragraph three
39 of this subdivision, such percentage to be determined by subtracting
40 from one hundred percent, a percentage determined by subtracting thir-
41 ty-five thousand dollars from city taxable income, dividing the result
42 by sixty-five thousand dollars and multiplying by one hundred percent.
43 (III) If the city taxable income is one hundred thousand dollars or
44 greater, no credit shall be allowed.
45 (IV) Provided further that for any taxable year of a taxpayer for
46 which this credit is effective that encompasses days occurring after
47 June thirtieth, two thousand nineteen, the amount of the credit deter-
48 mined in item (I) or (II) of this clause shall be multiplied by a frac-
49 tion, the numerator of which is the number of days in the taxpayer's
50 taxable year occurring on or before June thirtieth, two thousand nine-
51 teen, and the denominator of which is the number of days in the taxpay-
52 er's taxable year.
53 (B) Notwithstanding anything to the contrary in subparagraph (A) of
54 this paragraph, the credit allowed to a taxpayer for a taxable year
55 under this subdivision shall not exceed the sum of the taxes that would
56 otherwise be imposed by sections 11-1701, 11-1703, 11-1704 and 11-1704.1
S. 8578 971
1 of this subchapter on such taxpayer for such taxable year after the
2 allowance of any other credits allowed by subdivisions (a), (b) and (c)
3 of this section, and section 11-1721 of this chapter.
4 (C) Notwithstanding anything to the contrary in subparagraph (A) of
5 this paragraph, no credit shall be allowed for any amount of tax
6 imposed, or credit allowed, by subchapter two of chapter six of this
7 title on, or to, a combined group of corporations including a New York S
8 corporation or an exempt QSSS, except where the combined group consists
9 exclusively of one or more New York S corporations and one or more
10 exempt QSSSs of such corporations as described in paragraph one of this
11 subdivision, provided that each of the New York S corporations included
12 in the group is wholly owned by the same interests and in the same
13 proportions as each other New York S corporation included in the group.
14 (3) Subject to the provisions of subparagraph (B) of this paragraph
15 and subparagraph (C) of paragraph two of this subdivision, the amount
16 determined in this paragraph is the sum of the taxpayer's pro rata share
17 of the amounts determined in subparagraph (A) of this paragraph for each
18 New York S corporation, or exempt QSSS, described in paragraph one of
19 this subdivision, a pro rata share of whose income, loss and deductions
20 described in paragraph one of subsection (a) of section thirteen hundred
21 sixty-six of the internal revenue code, is included in the taxpayer's
22 city adjusted gross income.
23 (A) The amount determined in this subparagraph is the sum of:
24 (i) the taxes imposed by subchapter two of chapter six of this title
25 on such corporation, or a combined group including such corporation, for
26 its taxable year ending within or with the taxable year of the taxpayer
27 and paid by such corporation, or combined group; and
28 (ii) the amount of any credit or credits taken by such corporation, or
29 a combined group including such corporation, under subdivision eighteen
30 of section 11-604 of this title for its taxable year ending within or
31 with the taxable year of the taxpayer.
32 (B) For purposes of this subdivision, the taxpayer's pro rata share of
33 the amount in subparagraph (A) of this paragraph for the taxable year
34 shall be the amount determined with respect to the taxpayer:
35 (i) by assigning an equal portion of the amount in subparagraph (A) of
36 this paragraph to each day of the corporation's taxable year on which
37 the corporation has shares outstanding,
38 (ii) then by dividing that portion pro rata among the shares outstand-
39 ing on that day; provided, however,
40 (iii) if the taxable year of such corporation for purposes of chapter
41 six of this title is different from its New York S year or S short year
42 as defined in subdivision one-A of section two hundred eight of the tax
43 law, only those portions that are assigned to days of the taxable year
44 that are also days of the New York S year or S short year shall be taken
45 into account in determining the shareholder's pro rata share of the
46 amount determined in subparagraph (A) of this paragraph.
47 (g) Credit for city pass-through entity tax. (1) A taxpayer who is a
48 partner or member of an electing city partnership and a taxpayer share-
49 holder of an electing city resident S corporation subject to tax under
50 article twenty-four-B of the tax law shall be entitled to a credit
51 against the tax imposed by such article. For purposes of this subdivi-
52 sion, the terms "electing city partnership," "electing city resident S
53 corporation," "city pass-through entity tax," and "direct share of city
54 pass-through entity tax" shall have the same meanings as used in article
55 twenty-four-B of the tax law.
S. 8578 972
1 (2) The amount of the credit shall be equal to the partner's, member's
2 or shareholder's direct share of the city pass-through entity tax.
3 (3) If a taxpayer is a partner, member or shareholder in more than one
4 electing city partnership and/or electing city resident S corporation
5 that is subject to tax pursuant to article twenty-four-B of the tax law,
6 the amount of the credit of such taxpayer shall be equal to the sum of
7 the amounts of such credits calculated pursuant to paragraph two of this
8 subdivision with regard to each entity in which such taxpayer has a
9 direct ownership interest.
10 (4) If the amount of the credit allowable pursuant to this subdivision
11 for any taxable year exceeds the tax due for such year pursuant to arti-
12 cle twenty-four-B of the tax law, the excess amount shall be treated as
13 an overpayment, to be credited or refunded, without interest.
14 (5) Limitation on credit. No credit shall be allowed to a taxpayer
15 under this subdivision unless the electing city partnership or electing
16 city resident S corporation provided sufficient information to identify
17 such taxpayer on its city pass-through entity tax return as required
18 under paragraph two of subsection (c) of section eight hundred seventy-
19 two of the tax law for an electing city partnership or paragraph two of
20 subsection (d) of section eight hundred seventy-two of the tax law for
21 an electing city resident S corporation. The credit allowed to a taxpay-
22 er under this subdivision shall not exceed the direct share of city
23 pass-through entity tax reported by such electing city partnership or
24 electing city resident S corporation attributable to such taxpayer on
25 such electing city partnership's or such electing city resident S corpo-
26 ration's return filed pursuant to section eight hundred seventy-two of
27 the tax law.
28 § 11-1707 Meaning of terms. (a) General. Any term used in this chap-
29 ter shall have the same meaning as when used in a comparable context in
30 the laws of the United States relating to federal income taxes, unless a
31 different meaning is clearly required but such meaning shall be subject
32 to the exceptions or modifications prescribed in this chapter or by
33 statute. Any reference in this chapter to the laws of the United States
34 shall mean the provisions of the internal revenue code of nineteen
35 hundred eighty-six, unless a reference to the internal revenue code of
36 nineteen hundred fifty-four is clearly intended, and amendments thereto,
37 and other provisions of the laws of the United States relating to feder-
38 al income taxes, as the same may be or become effective at any time or
39 from time to time for the taxable year, as included and quoted in the
40 appendices, including any supplements and additions thereto, to this
41 chapter. Provided however, for taxable years beginning before January
42 first, two thousand twenty-two, any amendments made to the internal
43 revenue code of nineteen hundred eighty-six after March first, two thou-
44 sand twenty shall not apply to this chapter. Such quotation of the
45 aforesaid laws of the United States is intended to make them a part of
46 this chapter and to avoid constitutional uncertainties which might
47 result if such laws were merely incorporated by reference. The quotation
48 of a provision of the internal revenue code or of any other law of the
49 United States in such appendices shall not necessarily mean that it is
50 applicable or has relevance to this chapter.
51 (b) Marital or other status. An individual's marital or other status
52 under section 11-1701 of this chapter and section 11-1714 of this chap-
53 ter shall be the same as his or her marital or other status for purposes
54 of establishing the applicable federal income tax rates.
55 (c) "City" and "this city" as used in this chapter means the city of
56 Staten Island; "tax commission" as used in this chapter means the tax
S. 8578 973
1 commission of the state of New York; and "state" or "this state" as used
2 in this chapter means the state of New York.
3 SUBCHAPTER 2
4 RESIDENTS
5 § 11-1711 City taxable income of a city resident individual. (a)
6 General. The city taxable income of a city resident individual shall be
7 his or her city adjusted gross income less his or her city deduction and
8 city exemptions, as determined under this chapter.
9 (b) Husband and wife.
10 (1) If the federal taxable income of husband or wife, both of whom
11 are residents, is determined on a separate federal return, their city
12 taxable incomes shall be separately determined.
13 (2) If the federal taxable income of husband and wife, both of whom
14 are residents, is determined on a joint federal return, their city taxa-
15 ble income shall be determined jointly.
16 (3) If neither husband or wife, both of whom are residents, files a
17 federal return:
18 (A) their tax shall be determined on their joint city taxable income,
19 or
20 (B) separate taxes may be determined on their separate city taxable
21 incomes if they both so elect.
22 (4) If either husband or wife is a resident and the other is a nonres-
23 ident, a separate tax shall be determined on the city taxable income of
24 the resident spouse on a separate form unless such husband and wife
25 determine their federal taxable income jointly and both elect to deter-
26 mine their joint city taxable income as if both were residents.
27 § 11-1712 City adjusted gross income of a city resident individual.
28 (a) General. The city adjusted gross income of a city resident indi-
29 vidual means his or her federal adjusted gross income as defined in the
30 laws of the United States for the taxable year, with the modifications
31 specified in this section.
32 (b) Modifications increasing federal adjusted gross income. There
33 shall be added to federal adjusted gross income: (1) Interest income
34 on obligations of any state other than this state, or of a political
35 subdivision of any other such state unless created by compact or agree-
36 ment to which this state is a party, to the extent not properly includi-
37 ble in federal adjusted gross income;
38 (2) Interest or dividend income on obligations or securities of any
39 authority, commission, or instrumentality of the United States, which
40 the laws of the United States exempt from federal income tax but not
41 from state income taxes;
42 (3) Income taxes. (A) General. Income taxes imposed by this state or
43 any other taxing jurisdiction, to the extent deductible in determining
44 federal adjusted gross income and not credited against federal income
45 tax.
46 (B) Shareholders of S corporations. In the case of a shareholder of an
47 S corporation, with respect to taxes imposed upon or payable by the
48 corporation, the term "income taxes" in subparagraph (A) of this para-
49 graph shall also include the tax imposed under article nine-A of the tax
50 law, regardless of the measure of such tax, but shall not otherwise
51 include taxes imposed by this or any other state of the United States,
52 or any political subdivision of this or any other state, or the District
53 of Columbia.
S. 8578 974
1 (4) Interest on indebtedness incurred or continued to purchase or
2 carry obligations or securities the interest on which is exempt from tax
3 under this chapter, to the extent deductible in determining federal
4 adjusted gross income.
5 (5) Expenses paid or incurred during the taxable year for: (i) the
6 production or collection of income which is exempt from tax under this
7 chapter, or (ii) the management, conservation or maintenance of property
8 held for the production of such income, and the amortizable bond premium
9 for the taxable year on any bond the interest on which is exempt from
10 tax under this chapter, to the extent that such expenses and premiums
11 are deductible in determining federal adjusted gross income.
12 (6) In the case of a taxpayer who has exercised the election permit-
13 ted by subdivision (g) or (h) of this section, the amount or amounts
14 required by said subdivisions to be added to federal adjusted gross
15 income.
16 (7) In the case of a taxpayer who is a shareholder of a corporation
17 organized under article fifteen or authorized to do business in this
18 state under article fifteen-A of the business corporation law, for the
19 taxpayer's taxable years beginning before nineteen hundred eighty-eight,
20 the amount which is deductible by such corporation under paragraph one,
21 two or three of subsection (a) of section four hundred four of the
22 internal revenue code for its taxable year ending in or with such
23 taxpayer's taxable year for contributions paid on behalf of such taxpay-
24 er minus the lesser of fifteen thousand dollars or fifteen percent of
25 the earned income derived by such taxpayers from such corporation during
26 such taxpayer's taxable year. In the case of a taxpayer on whose behalf
27 contributions are paid under more than one plan to which this paragraph
28 applies or under a plan, contributions to which on his or her behalf are
29 subject to the limitations provided in subsection (e) of section four
30 hundred four of the internal revenue code, this paragraph shall apply
31 with respect to the aggregate of the contributions paid on his or her
32 behalf under all such plans.
33 (8) In the case of a taxpayer who is a shareholder of a corporation
34 organized under article fifteen or authorized to do business in this
35 state under article fifteen-A of the business corporation law, the
36 amount which is required to be paid as a tax by such corporation pursu-
37 ant to subsection (a) of section thirty-one hundred eleven of the inter-
38 nal revenue code with respect to the wages of such taxpayer for the
39 calendar year ending in or with such taxpayer's taxable year.
40 (10) The amount required to be added to federal adjusted gross income
41 pursuant to subdivision (i) of this section.
42 (14) The amount required to be added to federal adjusted gross income
43 pursuant to subdivision (1) of this section.
44 (15) The amount allowed as an exclusion or deduction for the special
45 additional mortgage recording taxes imposed by subdivision one-a of
46 section two hundred fifty-three of the tax law in determining federal
47 adjusted gross income for such taxable year.
48 (16) Unless the credit allowed pursuant to subsection (f) of section
49 six hundred six of the tax law is reflected in the computation of the
50 gain or loss so as to result in an increase in such gain or decrease in
51 such loss, for federal income tax purposes, from the sale or other
52 disposition of the property with respect to which the special additional
53 mortgage recording tax imposed pursuant to subdivision one-a of section
54 two hundred fifty-three of such law was paid, the amount of the special
55 additional mortgage recording tax imposed by subdivision one-a of
56 section two hundred fifty-three of such law which was paid and which is
S. 8578 975
1 reflected in the computation of the basis of the property so as to
2 result in a decrease in such gain or increase in such loss for federal
3 income tax purposes from the sale or other disposition of the property
4 with respect to which such tax was paid.
5 (17) The amount required to be added to federal adjusted gross income
6 pursuant to subdivision (r) of this section.
7 (18) In the case of a shareholder of an S corporation: (A) where the
8 election provided for in subsection (a) of section six hundred sixty of
9 the tax law is in effect with respect to such corporation, an amount
10 equal to his or her pro rata share of the corporation's reductions for
11 taxes described in paragraphs two and three of subsection (f) of section
12 thirteen hundred sixty-six of the internal revenue code, and
13 (B) in the case of a New York S termination year, subparagraph (A) of
14 this paragraph shall apply to the amount of reductions for taxes deter-
15 mined under subdivision (s) of this section.
16 (19) In the case of a shareholder of an S corporation: (A) where the
17 election provided for in subsection (a) of section six hundred sixty of
18 the tax law has not been made with respect to such corporation, any item
19 of loss or deduction of the corporation included in federal gross income
20 pursuant to section thirteen hundred sixty-six of the internal revenue
21 code, and
22 (B) in the case of a New York S termination year, subparagraph (A) of
23 this paragraph shall apply to the amounts of loss or deduction deter-
24 mined under subdivision (s) of this section.
25 (20) S corporation distributions to the extent not included in federal
26 gross income for the taxable year because of the application of section
27 thirteen hundred sixty-eight, subsection (e) of section thirteen hundred
28 seventy-one or subsection (c) of section thirteen hundred seventy-nine
29 of the internal revenue code which represent income not previously
30 subject to tax under this chapter because the election provided for in
31 subsection (a) of section six hundred sixty of the tax law had not been
32 made. Any such distribution treated in the manner described in paragraph
33 two of subsection (b) of section thirteen hundred sixty-eight of the
34 internal revenue code for federal income tax purposes shall be treated
35 as ordinary income for purposes of this chapter.
36 (21) In relation to the disposition of stock or indebtedness of a
37 corporation which elected under subchapter s of chapter one of the
38 internal revenue code for any taxable year of such corporation begin-
39 ning, in the case of a corporation taxable under article nine-A of the
40 tax law, after December thirty-first, nineteen hundred eighty, the
41 amount required to be added to federal adjusted gross income pursuant to
42 subdivision (n) of this section.
43 (22) The amounts required to be added to federal adjusted gross income
44 pursuant to subdivision (q) of this section.
45 (23) For taxable years beginning after December thirty-first, nineteen
46 hundred eighty-one, except with respect to property which is a qualified
47 mass commuting vehicle described in subparagraph (D) of paragraph eight
48 of subsection (f) of section one hundred sixty-eight of the internal
49 revenue code, relating to qualified mass commuting vehicles, any amount
50 which the taxpayer claimed as a deduction in computing its federal
51 adjusted gross income solely as a result of an election made pursuant to
52 the provisions of such paragraph eight as it was in effect for agree-
53 ments entered into prior to January first, nineteen hundred eighty-four;
54 (24) For taxable years beginning after December thirty-first, nineteen
55 hundred eighty-one, except with respect to property which is a qualified
56 mass commuting vehicle described in subparagraph (D) of paragraph eight
S. 8578 976
1 of subsection (f) of section one hundred sixty-eight of the internal
2 revenue code, relating to qualified mass commuting vehicles, any amount
3 which the taxpayer would have been required to include in the computa-
4 tion of its federal adjusted gross income had it not made the election
5 permitted pursuant to such paragraph eight as it was in effect for
6 agreements entered into prior to January first, nineteen hundred eight-
7 y-four;
8 (25) For taxable years beginning after December thirty-first, nineteen
9 hundred eighty-one, except with respect to recovery property subject to
10 the provisions of section two hundred eighty-F of the internal revenue
11 code and recovery property placed in service in this state in taxable
12 years beginning after December thirty-first, nineteen hundred eighty-
13 four, the amount allowable as a deduction under section one hundred
14 sixty-eight of the internal revenue code;
15 (25) In the case of property placed in service in taxable years begin-
16 ning before nineteen hundred ninety-four, for taxable years beginning
17 after December thirty-first, nineteen hundred eighty-one, except with
18 respect to property subject to the provisions of section two hundred
19 eighty-F of the internal revenue code and property subject to the
20 provisions of section one hundred sixty-eight of the internal revenue
21 code which is placed in service in this state in taxable years beginning
22 after December thirty-first, nineteen hundred eighty-four, the amount
23 allowable as a deduction determined under section one hundred sixty-
24 eight of the internal revenue code.
25 (26) The amount of member or employee contributions to a retirement
26 system or pension fund picked up or paid by the employer pursuant to
27 subdivision f of section five hundred seventeen or subdivision d of
28 section six hundred thirteen of the retirement and social security law
29 or section 13-225.1, 13-327.1, 13-125.1, 13-125.2 or 13-521.1 of title
30 thirteen of the code of the preceding municipality or subdivision nine-
31 teen of section twenty-five hundred seventy-five of the education law.
32 (26-a) The amount of member or employee contributions to a retirement
33 system or pension fund picked up or paid by the employer for members of
34 the Manhattan and Bronx surface transportation authority pension plan
35 and treated as employer contributions in determining income tax treat-
36 ment under subdivision (h) of section four hundred fourteen of the
37 Internal Revenue Code.
38 (27) Upon the disposition of recovery property to which paragraph
39 twenty-six of subdivision (c) of this section applies, the amount, if
40 any, by which the aggregate of the modifications described in such para-
41 graph twenty-six attributable to such property exceeds the aggregate of
42 the modifications described in paragraph twenty-five of this subdivision
43 attributable to such property; and
44 (27) Upon the disposition of property to which paragraph twenty-six of
45 subdivision (c) of this section applies, the amount, if any, by which
46 the aggregate of the modifications described in such paragraph twenty-
47 six attributable to such property exceeds the aggregate of the modifica-
48 tions described in paragraph twenty-five of this subdivision attribut-
49 able to such property.
50 (29) When gain from the sale or other disposition of property is
51 included in federal gross income, the amount of reduction in the basis
52 of such property attributable to credit for solar and wind energy
53 systems pursuant to paragraph nine of subsection (g) of section six
54 hundred six of the tax law; but for taxable years beginning before nine-
55 teen hundred eighty-seven, if such gain affects the determination of a
S. 8578 977
1 net capital gain for federal income tax purposes, forty percent of such
2 amount.
3 (31) The amount deducted or deferred from an employee's salary under a
4 flexible benefits program established pursuant to section twenty-three
5 of the general municipal law or section one thousand two hundred ten-a
6 of the public authorities law.
7 (32) The amount by which an employee's salary is reduced pursuant to
8 the provisions of subdivision b of section 12-126.1 and subdivision b of
9 section 12-126.2 of the code of the preceding municipality.
10 (33) Real property taxes paid on qualified agricultural property and
11 deducted in determining federal adjusted gross income, to the extent of
12 the amount of the agricultural property tax credit allowed under
13 subsection (n) or (i) of section six hundred six of the tax law.
14 (34) The amount of any deduction allowed pursuant to section one
15 hundred ninety-nine of the internal revenue code.
16 (35) The amount of any federal deduction for taxes imposed under arti-
17 cle twenty-three of the tax law.
18 (36) In the case of a beneficiary of a trust that, in any tax year
19 after its creation including its first tax year, was not subject to tax
20 pursuant to subparagraph (D) of paragraph three of subdivision (b) of
21 section 11-1705 of this chapter, except for an incomplete gift non-gran-
22 tor trust, as defined by paragraph thirty-seven of this subdivision, the
23 amount described in the first sentence of section six hundred sixty-sev-
24 en of the internal revenue code for the tax year to the extent not
25 already included in federal gross income for the tax year, except that,
26 in computing the amount to be added under this paragraph, such benefici-
27 ary shall disregard (i) subsection (c) of section six hundred sixty-five
28 of the internal revenue code; (ii) the income earned by such trust in
29 any tax year in which the trust was subject to tax under this article;
30 and (iii) the income earned by such trust in a taxable year prior to
31 when the beneficiary first became a resident of the city or in any taxa-
32 ble year starting before January first, two thousand fourteen. Except
33 as otherwise provided in this paragraph, all of the provisions of the
34 internal revenue code that are relevant to computing the amount
35 described in the first sentence of subsection (a) of section six hundred
36 sixty-seven of the internal revenue code shall apply to the provisions
37 of this paragraph with the same force and effect as if the language of
38 those internal revenue code provisions had been incorporated in full
39 into this paragraph, except to the extent that any such provision is
40 either inconsistent with or not relevant to this paragraph.
41 (37) In the case of a taxpayer who transferred property to an incom-
42 plete gift non-grantor trust, the income of the trust, less any
43 deductions of such trust, to the extent such income and deductions of
44 such trust would be taken into account in computing the taxpayer's
45 federal taxable income if such trust in its entirety were treated as a
46 grantor trust for federal tax purposes. For purposes of this paragraph,
47 an "incomplete gift non-grantor trust" means a resident trust that meets
48 the following conditions: (i) the trust does not qualify as a grantor
49 trust under section six hundred seventy-one through six hundred seven-
50 ty-nine of the internal revenue code, and (ii) the grantor's transfer of
51 assets to the trust is treated as an incomplete gift under section twen-
52 ty-five hundred eleven of the internal revenue code, and the regulations
53 thereunder.
54 (38) The amount contributed to any or all of the following accounts
55 within the charitable gifts trust fund set forth in section ninety-two-
56 gg of the state finance law, to the extent the amount is claimed as an
S. 8578 978
1 itemized deduction pursuant to section six hundred fifteen of the tax
2 law: the health charitable account established by paragraph a of subdi-
3 vision four of section ninety-two-gg of the state finance law, or the
4 elementary and secondary education charitable account established by
5 paragraph b of subdivision four of section ninety-two-gg of the state
6 finance law.
7 (39) The amount of any gain excluded from federal gross income for the
8 taxable year by subparagraph (A) of paragraph (1) of subsection (a) of
9 section one thousand four hundred-Z-two of the internal revenue code.
10 (c) Modifications reducing federal adjusted gross income. There
11 shall be subtracted from federal adjusted gross income:
12 (1) Interest income on obligations of the United States and its
13 possessions to the extent includible in gross income for federal income
14 tax purposes; such interest income shall include the amount received as
15 dividends from a regulated investment company, as defined in section
16 eight hundred fifty-one of the internal revenue code, which has been
17 designated as the amount of such interest income in a written notice to
18 shareholders not later than sixty days following the close of its taxa-
19 ble year; provided that, at the close of each quarter of the taxable
20 year of such regulated investment company, at least fifty percent of the
21 value of its total assets, as defined in subsection (c) of section eight
22 hundred fifty-one of the internal revenue code, consists of obligations
23 of the United States and its possessions. The aggregate amount so desig-
24 nated by the regulated investment company for its taxable year shall not
25 exceed the amount determined by multiplying the total distributions paid
26 by such regulated investment company to its shareholders with respect to
27 that taxable year, attributable to income earned in that year, including
28 any such distributions paid after the close of the taxable year, as
29 described in section eight hundred fifty-five of the internal revenue
30 code, by the ratio that the interest income received in that taxable
31 year on obligations of the United States and its possessions, after
32 reduction for the deductions and expenses directly or indirectly attrib-
33 utable thereto, bears to the investment company taxable income of such
34 regulated investment company for such taxable year, determined without
35 regard to subparagraph (D) of paragraph two of subsection (b) of section
36 eight hundred fifty-two of the internal revenue code;
37 (2) Interest or dividend income on obligations or securities of any
38 authority, commission or instrumentality of the United States to the
39 extent includible in gross income for federal income tax purposes but
40 exempt from state income taxes under the laws of the United States;
41 (3) (i) Pensions to officers and employees of this state, its subdivi-
42 sions and agencies, to the extent includible in gross income for federal
43 income tax purposes;
44 (ii) Pensions to officers and employees of the United States of Ameri-
45 ca, any territory or possession or political subdivision of such terri-
46 tory or possession, the District of Columbia, or any agency or instru-
47 mentality of such, to the extent includible in gross income for federal
48 income tax purposes;
49 (3-a) Pensions and annuities received by an individual who has
50 attained the age of fifty-nine and one-half, not otherwise excluded
51 pursuant to paragraph three of this subdivision, to the extent includi-
52 ble in gross income for federal income tax purposes, but not in excess
53 of twenty thousand dollars, which are periodic payments attributable to
54 personal services performed by such individual prior to his or her
55 retirement from employment, which arise: (i) from an employer-employee
56 relationship or (ii) from contributions to a retirement plan which are
S. 8578 979
1 deductible for federal income tax purposes. However, the term "pensions
2 and annuities" shall also include distributions received by an individ-
3 ual who has attained the age of fifty-nine and one-half from an individ-
4 ual retirement account or an individual retirement annuity, as defined
5 in section four hundred eight of the internal revenue code, and distrib-
6 utions received by an individual who has attained the age of fifty-nine
7 and one-half from self-employed individual and owner-employee retirement
8 plans which qualify under section four hundred one of the internal
9 revenue code, whether or not the payments are periodic in nature. Never-
10 theless, the term "pensions and annuities" shall not include any lump
11 sum distribution, as defined in subparagraph (A) of paragraph four of
12 subsection (e) of section four hundred two of the internal revenue code
13 and taxed under section six hundred three of the tax law. Where a
14 husband and wife file a joint city personal income tax return, the
15 modification provided for in this paragraph shall be computed as if they
16 were filing separate city personal income tax returns. Where a payment
17 would otherwise come within the meaning of the term "pensions and annui-
18 ties" as set forth in this paragraph except that such individual is
19 deceased, such payment shall, nevertheless, be treated as a pension or
20 annuity for purposes of this paragraph if such payment is received by
21 such individual's beneficiary.
22 (3-b) (i) Disability income included in federal gross income, to the
23 extent that such disability income would have been excluded from federal
24 gross income pursuant to the provisions of subsection (d) of section one
25 hundred five of the internal revenue code of nineteen hundred fifty-four
26 had such provisions continued in effect for taxable years commencing
27 after December thirty-first, nineteen hundred eighty-three as they were
28 in effect immediately prior to the repeal of such subsection. Notwith-
29 standing the provisions of this subparagraph, the sum of disability
30 income excluded pursuant to this paragraph, and pension and annuity
31 income excluded pursuant to paragraph three-a of this subdivision, shall
32 not exceed twenty thousand dollars.
33 (ii) Notwithstanding subdivision (f) of this section, if a husband and
34 wife determine their federal income tax on a joint return but are
35 required to determine their city income taxes separately, the amounts of
36 exclusion allowed under subparagraph (i) of this paragraph shall be
37 determined in the same joint manner as such amounts would have been
38 determined under the provisions of paragraph five of subsection (d) of
39 section one hundred five of the internal revenue code as such provisions
40 were in effect immediately prior to the repeal of such subsection, but
41 shall be attributed for city income tax purposes to the spouse who would
42 have been required to report any such amount as income if the spouses
43 had determined their federal income taxes separately.
44 (iii) Where a husband and wife file a joint city income tax return,
45 the twenty thousand dollar limitation provided in subparagraph (i) of
46 this paragraph shall be applied as if they were filing separate city
47 income tax returns.
48 (3-c) Social security benefits to the extent includible in gross
49 income for federal income tax purposes pursuant to section eighty-six of
50 the internal revenue code.
51 (4) The portion of any gain, from the sale or other disposition of
52 property having a higher adjusted basis for New York state income tax
53 purposes than for federal income tax purposes on the last day of the
54 last taxable year for which article sixteen of the tax law imposes tax,
55 that does not exceed such difference in basis.
S. 8578 980
1 (5) The amount necessary to prevent the taxation under this chapter
2 of any annuity or other amount of income or gain which was properly
3 included in income or gain and was taxable under article sixteen of the
4 tax law to the taxpayer, or to a decedent by reason of whose death the
5 taxpayer acquired the right to receive the income or gain, or to a trust
6 or estate from which the taxpayer received the income or gain.
7 (6) Interest or dividend income on obligations or securities to the
8 extent exempt from income tax under the laws of this state authorizing
9 the issuance of such obligations on securities but includible in gross
10 income for federal income tax purposes.
11 (7) The amount of any refund or credit for overpayment of income
12 taxes imposed by this city, any other taxing jurisdiction, or any taxes
13 imposed by article twenty-three of the tax law to the extent properly
14 included in gross income for federal income tax purposes.
15 (8) Compensation received for active service in the armed forces of
16 the United States on or after October first, nineteen hundred sixty-one,
17 and prior to September first, nineteen hundred sixty-two; provided,
18 however, that the amount of such compensation to be deducted shall not
19 exceed one hundred dollars for each month of the taxable year, subse-
20 quent to September, nineteen hundred sixty-one, during any part of which
21 month the taxpayer was engaged in such service. For the purposes of
22 this paragraph, the words "active service in the armed forces of the
23 United States" shall mean active duty, other than for training, in the
24 army, navy, including the marine corps, air force or coast guard of the
25 United States as defined in title ten of the United States Code.
26 (8-a) Compensation and bonuses received for active service in the
27 armed forces of the United States while a prisoner of war or missing in
28 action during the hostilities in Vietnam, to the extent includible in
29 gross income for federal income tax purposes.
30 (9) Interest on indebtedness incurred or continued to purchase or
31 carry obligations or securities the interest on which is subject to tax
32 under this chapter but exempt from federal income tax, to the extent
33 that such interest on indebtedness is not deductible in determining
34 federal adjusted gross income and is attributable to a trade or business
35 carried on by the taxpayer.
36 (10) Ordinary and necessary expenses paid or incurred during the
37 taxable year for: (i) the production or collection of income which is
38 subject to tax under this chapter but exempt from federal income tax, or
39 (ii) the management, conservation or maintenance of property held for
40 the production of such income, and the amortizable bond premium for the
41 taxable year on any bond the interest on which is subject to tax under
42 this chapter but exempt from federal income tax, to the extent that such
43 expenses and premiums are not deductible in determining federal adjusted
44 gross income and are attributable to a trade or business carried on by
45 the taxpayer.
46 (11) In the case of a taxpayer who has exercised the election permit-
47 ted by subdivision (g) or (h) of this section, the amount or amounts
48 required by said subdivisions to be subtracted from federal adjusted
49 gross income.
50 (12) The amount necessary to prevent the taxation of amounts properly
51 included in New York adjusted gross income in prior taxable years in
52 accordance with paragraph seven of subdivision (b) of this section.
53 (13) The amount required to be subtracted from federal adjusted gross
54 income pursuant to subdivision (i) of this section.
55 (14) The amount that may be subtracted from federal adjusted gross
56 income pursuant to subdivision (j) of this section.
S. 8578 981
1 (15) That portion of wages or salaries paid or incurred for the taxa-
2 ble year for which a deduction is not allowed pursuant to the provisions
3 of section two hundred eighty-C of the internal revenue code.
4 (19) The amount which may be subtracted from federal adjusted gross
5 income pursuant to subdivision (r) of this section.
6 (20) The amounts which may be subtracted from federal adjusted gross
7 income pursuant to subdivision (o) of this section.
8 (21) In relation to the disposition of stock or indebtedness of a
9 corporation which elected under subchapter s of chapter one of the
10 internal revenue code for any taxable year of such corporation begin-
11 ning, in the case of a corporation taxable under article nine-A of the
12 tax law, after December thirty-first, nineteen hundred eighty, the
13 amounts required to be subtracted from federal adjusted gross income
14 pursuant to subdivision (n) of this section.
15 (22) In the case of a shareholder of an S corporation: (A) where the
16 election provided for in subsection (a) of section six hundred sixty of
17 the tax law has not been made with respect to such corporation, any item
18 of income of the corporation included in federal gross income pursuant
19 to section thirteen hundred sixty-six of the internal revenue code, and
20 (B) in the case of a New York S termination year, subparagraph (A) of
21 this paragraph shall apply to the amounts of income determined under
22 subdivision (s) of this section.
23 (23) The amounts which may be subtracted from federal adjusted gross
24 income pursuant to subdivision (p) of this section.
25 (24) For taxable years beginning after December thirty-first, nineteen
26 hundred eighty-one, except with respect to property which is a qualified
27 mass commuting vehicle described in subparagraph (D) of paragraph eight
28 of subsection (f) of section one hundred sixty-eight of the internal
29 revenue code, relating to qualified mass commuting vehicles, any amount
30 which is included in the taxpayer's federal adjusted gross income solely
31 as a result of an election made pursuant to the provisions of such para-
32 graph eight as it was in effect for agreements entered into prior to
33 January first, nineteen hundred eighty-four;
34 (25) For taxable years beginning after December thirty-first, nineteen
35 hundred eighty-one, except with respect to property which is a qualified
36 mass commuting vehicle described in subparagraph (D) of paragraph eight
37 of subsection (f) of section one hundred sixty-eight of the internal
38 revenue code, relating to qualified mass commuting vehicles, any amount
39 which the taxpayer could have excluded from federal adjusted gross
40 income had it not made the election provided for in such paragraph eight
41 as it was in effect for agreements entered into prior to January first,
42 nineteen hundred eighty-four;
43 (26) For taxable years beginning after December thirty-first, nineteen
44 hundred eighty-one, except with respect to recovery property subject to
45 the provisions of section two hundred eighty-F of the internal revenue
46 code and recovery property placed in service in this state in taxable
47 years beginning after December thirty-first, nineteen hundred eighty-
48 four, the amount allowable as the depreciation deduction under section
49 one hundred sixty-seven of the internal revenue code as such section
50 would have applied to property placed in service on December thirty-
51 first, nineteen hundred eighty;
52 (26) In the case of property placed in service in taxable years begin-
53 ning before nineteen hundred ninety-four, for taxable years beginning
54 after December thirty-first, nineteen hundred eighty-one, except with
55 respect to property subject to the provisions of section two hundred
56 eighty-F of the internal revenue code and property subject to the
S. 8578 982
1 provisions of section one hundred sixty-eight of the internal revenue
2 code which is placed in service in this state in taxable years beginning
3 after December thirty-first, nineteen hundred eighty-four, an amount
4 with respect to property which is subject to the provisions of section
5 one hundred sixty-eight of the internal revenue code equal to the amount
6 allowable as the depreciation deduction under section one hundred
7 sixty-seven of the internal revenue code as such section would have
8 applied to property placed in service on December thirty-first, nineteen
9 hundred eighty.
10 (28) Upon the disposition of recovery property to which paragraph
11 twenty-six of this subdivision applies, the amount, if any, by which the
12 aggregate of the modifications described in paragraph twenty-five of
13 subdivision (b) of this section attributable to such property exceeds
14 the aggregate of the modifications described in paragraph twenty-six of
15 this subdivision attributable to such property.
16 (28) Upon the disposition of property to which paragraph twenty-six of
17 this subdivision applies, the amount, if any, by which the aggregate of
18 the modifications described in paragraph twenty-five of subdivision (b)
19 of this section attributable to such property exceeds the aggregate of
20 the modifications described in paragraph twenty-six of this subdivision
21 attributable to such property.
22 (29) Deduction for two-earner married couples. (A) For the taxable
23 year beginning in nineteen hundred eighty-seven, in the case of a
24 husband and wife who each have qualified earned income and who have
25 filed a joint return under subdivision (b) of section 11-1751 of this
26 chapter for the taxable year, an amount equal to ten percent of the
27 lesser of:
28 (i) thirty thousand dollars or
29 (ii) the qualified earned income of the spouse with the lower quali-
30 fied earned income for such taxable year.
31 (B) For purposes of this paragraph, eligibility for the deduction
32 provided for herein and the term qualified earned income shall be deter-
33 mined in the manner such eligibility and such qualified earned income
34 would have been determined pursuant to the provisions of section two
35 hundred twenty-one of the internal revenue code of nineteen hundred
36 fifty-four had such provisions continued in effect for taxable years
37 commencing after December thirty-first, nineteen hundred eighty-six as
38 they were in effect immediately prior to the repeal of such section.
39 Provided, however, the determination of such qualified earned income
40 shall be made with regard only to the items therein included in city
41 adjusted gross income, with such adjusted gross income determined with-
42 out regard to this paragraph, and only with regard to the deductions and
43 exclusions which are of the type properly allowable to or chargeable
44 against such qualified earned income in such taxable year.
45 (30) The amount received by any person as an accelerated payment or
46 payments of part or all of the death benefit or special surrender value
47 under a life insurance policy as a result of any of the diagnoses speci-
48 fied in subparagraph (A) or (B) of paragraph one of subsection (a) of
49 section one thousand one hundred thirteen of the insurance law, and the
50 amount received by any person as a viatical settlement pursuant to the
51 provisions of article seventy-eight of the insurance law, to the extent
52 includible in gross income for federal income tax purposes.
53 (32) The portion of the fees paid during the taxable year by a taxpay-
54 er who is a resident of a continuing care retirement community, issued a
55 certificate of authority pursuant to article forty-six of the public
56 health law, attributable to the cost of providing long term care bene-
S. 8578 983
1 fits pursuant to a continuing care contract. The portion of the fees so
2 attributable shall be determined in accordance with regulations promul-
3 gated by the superintendent of insurance. The deduction may not exceed
4 the limitation that would be applicable to the taxpayer for the taxable
5 year, with respect to eligible long term care premiums, determined under
6 paragraph ten of subsection (d) of section two hundred thirteen of the
7 internal revenue code.
8 (33) Distributions, to the extent includible in adjusted gross income
9 for federal income tax purposes, made to the taxpayer because of his or
10 her status as a victim of Nazi persecution, as defined in P.L. 103-286,
11 or as a spouse or a descendant in need of such victim.
12 (34) Items of income, to the extent includible in gross income for
13 federal income tax purposes, attributable to, derived from or in any way
14 related to assets stolen from, hidden from or otherwise lost to a victim
15 of Nazi persecution, as defined in P.L. 103-286, immediately prior to,
16 during and immediately after World War II, including, but not limited to
17 interest on the proceeds receivable as insurance under policies issued
18 to a victim of Nazi persecution, as defined in P.L. 103-286, by European
19 insurance companies immediately prior to and during World War II.
20 Provided, however, this subtraction from federal adjusted income does
21 not apply to assets acquired with such assets or with the proceeds from
22 the sale of such assets. Provided, further, this paragraph is only
23 applicable to a taxpayer who was the first recipient of such assets
24 after their recovery and who is a victim of Nazi persecution, as defined
25 in P.L. 103-286, or a spouse or a descendant of such victim.
26 (35) As provided in section thirty-eight of the tax law, any income or
27 gain, to the extent it is included in federal adjusted gross income of
28 an individual who is the sole proprietor of a qualified entity or a
29 member of a limited liability company, a partner in a partnership or a
30 shareholder in a New York subchapter S corporation that is a qualified
31 entity as defined in section sixteen-v of the New York state urban
32 development corporation act attributable to the operations of such qual-
33 ified entity at its location in or as part of a New York state inno-
34 vation hot spot, as defined in paragraph (a) of subdivision one of
35 section sixteen-v of the New York state urban development corporation
36 act.
37 (36) (A) In the case of a taxpayer who is a small business or a
38 taxpayer who is a member, partner, or shareholder of a limited liability
39 company, partnership, or New York S corporation, respectively, that is a
40 small business, who or which has business income and/or farm income as
41 defined in the laws of the United States, an amount equal to fifteen
42 percent of the net items of income, gain, loss and deduction attribut-
43 able to such business or farm entering into federal adjusted gross
44 income, but not less than zero.
45 (B) (i) For the purposes of this paragraph, the term small business
46 shall mean: (I) a sole proprietor who employs one or more persons during
47 the taxable year and who has net business income or net farm income of
48 greater than zero but less than two hundred fifty thousand dollars;
49 (II) a limited liability company, partnership, or New York S corpo-
50 ration that during the taxable year employs one or more persons and has
51 net farm income that is greater than zero but less than two hundred
52 fifty thousand dollars; or
53 (III) a limited liability company, partnership, or New York S corpo-
54 ration that during the taxable year employs one or more persons and has
55 New York gross business income attributable to a non-farm business that
S. 8578 984
1 is greater than zero but less than one million five hundred thousand
2 dollars.
3 (ii) For purposes of this paragraph, the term New York gross business
4 income shall mean: (I) in the case of a limited liability company or a
5 partnership, New York source gross income as defined in subparagraph (b)
6 or paragraph three of subsection (c) of section six hundred fifty-eight
7 of the tax law, and, (II) in the case of a New York S corporation, New
8 York receipts included in the numerator of the apportionment factor
9 determined under section two hundred ten-A of the tax law for the taxa-
10 ble year.
11 (C) To qualify for this modification in relation to a non-farm small
12 business that is a limited liability company, partnership, or New York S
13 corporation, the taxpayer's income attributable to the net business
14 income from its ownership interests in non-farm limited liability compa-
15 nies, partnerships, or New York S corporations must be less than two
16 hundred fifty thousand dollars.
17 (37) Any wages received by an individual as an employee of a business
18 located within a tax-free NY area during the first five years of such
19 business's ten year taxable period specified in subdivision (a) of
20 section thirty-nine of the tax law to the extent included in federal
21 adjusted gross income and allowed under section thirty-nine of the tax
22 law. During the second five years of such business's ten year taxable
23 period, the first two hundred thousand dollars of such wages in the case
24 of a taxpayer filing as a single individual, the first two hundred fifty
25 thousand dollars of such wages in the case of a taxpayer filing as a
26 head of household, and three hundred thousand dollars of such wages in
27 the case of a taxpayer filing a joint return, to the extent included in
28 federal adjusted gross income and allowed under section thirty-nine of
29 the tax law.
30 (38) The amount of any award paid to a volunteer firefighter or volun-
31 teer ambulance worker from a length of service defined contribution plan
32 or defined benefit plan as provided for in articles eleven-A, eleven-AA,
33 eleven-AAA and eleven-AAAA of the general municipal law, to the extent
34 that such award is includable in gross income for federal income tax
35 purposes; provided, however, that such award is not distributed in the
36 form of a lump sum distribution, as defined in subparagraph (D) of para-
37 graph four of subsection (e) of section four hundred two of the internal
38 revenue code and taxed under section six hundred three of the tax law;
39 and provided, further, that such award is not distributed to a taxpayer
40 who has not attained the age of fifty-nine and one-half years.
41 (39) The amount of any gain added back to federal adjusted gross
42 income in a previous taxable year pursuant to paragraph thirty-nine of
43 subdivision (b) of this section that is included in federal gross income
44 for the taxable year.
45 (d) Modification for city fiduciary adjustment. There shall be added
46 to or subtracted from federal adjusted gross income, as the case may be,
47 the taxpayer's share, as beneficiary of an estate or trust, of the city
48 fiduciary adjustment determined under section 11-1719 of this subchap-
49 ter.
50 (e) Modifications of partners and shareholders of S corporations. (1)
51 Partners and shareholders of S corporations which are not New York C
52 corporations. The amounts of modifications required to be made under
53 this section by a partner or by a shareholder of an S corporation, other
54 than an S corporation which is a New York C corporation, which relate to
55 partnership or S corporation items of income, gain, loss or deduction
56 shall be determined under section 11-1717 of this subchapter and, in the
S. 8578 985
1 case of a partner of a partnership doing an insurance business as
2 members of the New York insurance exchange described in section six
3 thousand two hundred one of the insurance law, under section 11-1717.1
4 of this subchapter.
5 (2) Shareholders of S corporations which are New York C corporations.
6 In the case of a shareholder of an S corporation which is a New York C
7 corporation, the modifications under this section which relate to the
8 corporation's items of income, loss and deduction shall not apply,
9 except for the modifications provided under paragraph nineteen of subdi-
10 vision (b) and paragraph twenty-two of subdivision (c) of this section.
11 (3) New York S termination year. In the case of a New York S termi-
12 nation year, the amounts of the modifications required under this
13 section which relate to the S corporation's items of income, loss,
14 deduction and reductions for taxes, as described in paragraphs two and
15 three of subsection (f) of section thirteen hundred sixty-six of the
16 internal revenue code, shall be adjusted in the same manner that the S
17 corporation's items are adjusted under subdivision (s) of this section.
18 (f) Husband and wife. If husband and wife determine their federal
19 income tax on a joint return but are required to determine their city
20 income taxes separately, they shall determine their city adjusted gross
21 incomes separately as if their federal adjusted gross incomes had been
22 determined separately.
23 (g) Optional modifications. Subject to the conditions provided in
24 paragraphs three and four of this subdivision, at the election of the
25 taxpayer there shall also be subtracted from federal adjusted gross
26 income either or both of the items set forth in paragraphs one and two
27 of this subdivision, except that only one of such items shall be
28 subtracted with respect to any one item of property, and except that a
29 subtraction of the item set forth in such paragraph two may not be taken
30 with respect to taxable years commencing on or after January first,
31 nineteen hundred eighty-nine.
32 (1) Depreciation with respect to any property such as described in
33 paragraph three or four of this subdivision, and subject to the condi-
34 tions provided therein, not exceeding twice the depreciation allowed
35 with respect to the same property for federal income tax purposes. Such
36 modification shall be allowed only upon condition that any depreciation
37 or amortization allowed with respect to the same property in determining
38 federal adjusted gross income shall be added to federal adjusted gross
39 income pursuant to paragraph six of subdivision (b) of this section.
40 The total of all deductions allowed pursuant to this paragraph in any
41 taxable year or years with respect to any property described in para-
42 graph three of this subdivision shall not exceed its cost or other basis
43 and, with respect to property described in paragraph four of this subdi-
44 vision, which is used in a business carried on both within and without
45 the state shall not exceed its cost or other basis multiplied by a
46 percentage of the excess of the taxpayer's business income over its
47 business deductions allocated to this state for the first year such
48 depreciation is deducted. Such percentage shall be determined by appor-
49 tionment and allocation under regulations of the tax commission.
50 (2) Expenditures paid or incurred during the taxable year for the
51 construction, reconstruction, erection or acquisition of any property
52 such as described in paragraph three or four of this subdivision, and
53 subject to the conditions provided therein, which is used or to be used
54 for purposes of research and development in the experimental or labora-
55 tory sense. Such purposes shall not be deemed to include the ordinary
56 testing or inspection of materials or products for quality control,
S. 8578 986
1 efficiency surveys, management studies, consumer surveys, advertising,
2 promotions or research in connection with literary, historical or simi-
3 lar projects. Such modification shall be allowed only on condition
4 that, with respect to property described in paragraph four of this
5 subdivision, which is used in a business carried on both within and
6 without the state the deduction shall not exceed the expenditures multi-
7 plied by a percentage of the excess of the taxpayer's business income
8 over its business deductions allocated to this state for the first year
9 such expenditures are deducted. Such percentage shall be determined by
10 apportionment and allocation under regulations of the tax commission,
11 and for the taxable year and all succeeding taxable years, any
12 deductions allowed for federal income tax purposes on account of such
13 expenditures or on account of depreciation of the same property, except
14 to the extent that its basis may be attributable to factors other than
15 such expenditures, shall be added to federal adjusted gross income
16 pursuant to paragraph six of subdivision (b) of this section, or in case
17 a modification is allowable pursuant to this paragraph for only a part
18 of such expenditures, on condition that a proportionate part of any such
19 deductions allowed for federal income tax purposes be added to federal
20 adjusted gross income. With respect to property which is used or to be
21 used for research and development only in part, or during only part of
22 its useful life, the modification allowable pursuant to this paragraph
23 shall be limited to a proportionate part of the expenditures relating
24 thereto. If a modification shall have been allowed pursuant to this
25 paragraph for all or part of such expenditures with respect to any prop-
26 erty, and such property is used for purposes other than research and
27 development to a greater extent than originally reported, the taxpayer
28 shall report such use in his or her return for the first taxable year
29 during which it occurs, and the tax commission may recompute the tax for
30 the year or years for which such deduction was allowed, and may assess
31 any additional tax resulting from such recomputation within the time
32 fixed by subdivision (c) of section 11-1783 of this chapter.
33 (3) For purposes of this paragraph, such modifications shall be
34 allowed only with respect to tangible property which is depreciable
35 pursuant to section one hundred sixty-seven of the internal revenue
36 code, having a situs in this state and used in the taxpayer's trade or
37 business: (A) constructed, reconstructed or erected after December thir-
38 ty-first, nineteen hundred sixty-three, pursuant to a contract which
39 was, on or before December thirty-first, nineteen hundred sixty-seven,
40 and at all times thereafter, binding on the taxpayer or, property, the
41 physical construction, reconstruction or erection of which began on or
42 before December thirty-first, nineteen hundred sixty-seven or which
43 began after such date pursuant to an order placed on or before December
44 thirty-first, nineteen hundred sixty-seven, and then only with respect
45 to that portion of the basis thereof or the expenditures relating there-
46 to which is properly attributable to such construction, reconstruction
47 or erection after December thirty-first, nineteen hundred sixty-three,
48 or (B) acquired after December thirty-first, nineteen hundred sixty-
49 three, pursuant to a contract which was, on or before December thirty-
50 first, nineteen hundred sixty-seven, and at all times thereafter, bind-
51 ing on the taxpayer or pursuant to an order placed on or before December
52 thirty-first, nineteen hundred sixty-seven, by purchase as defined in
53 subsection (d) of section one hundred seventy-nine of the internal
54 revenue code, if the original use of such property commenced with the
55 taxpayer, commenced in this state and commenced after December thirty-
56 first, nineteen hundred sixty-three, or (C) acquired, constructed,
S. 8578 987
1 reconstructed, or erected subsequent to December thirty-first, nineteen
2 hundred sixty-seven, if such acquisition, construction, reconstruction
3 or erection is pursuant to a plan of the taxpayer which was in existence
4 December thirty-first, nineteen hundred sixty-seven and not thereafter
5 substantially modified, and such acquisition, construction, recon-
6 struction or erection would qualify under the rules in paragraph four,
7 five or six of subdivision (h) of section forty-eight of the internal
8 revenue code provided all references in such paragraphs four, five and
9 six to the dates October nine, nineteen hundred sixty-six, and October
10 ten, nineteen hundred sixty-six, shall be read as December thirty-first,
11 nineteen hundred sixty-seven. A taxpayer shall be allowed a deduction
12 under clause (A), (B) or (C) of this paragraph only if the tangible
13 property shall be delivered or the construction, reconstruction or
14 erection shall be completed on or before December thirty-first, nineteen
15 hundred sixty-nine, except in the case of tangible property which is
16 acquired, constructed, reconstructed or erected pursuant to a contract
17 which was, on or before December thirty-first, nineteen hundred sixty-
18 seven, and at all times thereafter, binding on the taxpayer. However,
19 for any taxable year beginning on or after January first, nineteen
20 hundred sixty-eight, a taxpayer shall not be allowed a modification
21 under paragraph one of this subdivision with respect to tangible
22 personal property leased to any other person or corporation, provided,
23 any contract or agreement to lease or rent or for a license to use such
24 property shall be considered a lease. With respect to property which a
25 taxpayer uses for purposes other than leasing for part of a taxable year
26 and leases for a part of a taxable year, a modification under paragraph
27 one of this subdivision shall be allowed in proportion to the part of
28 the year such property is used by the taxpayer.
29 (4) For purposes of this paragraph, such modifications shall be
30 allowed only with respect to tangible property which is depreciable
31 pursuant to section one hundred sixty-seven of the internal revenue
32 code, having a situs in this state and used in the taxpayer's trade or
33 business. The modifications provided for in paragraph one of this
34 subdivision shall be allowed only with respect to tangible property
35 which is: (A) constructed, reconstructed or erected after December thir-
36 ty-first, nineteen hundred sixty-seven, pursuant to a contract which
37 was, on or before December thirty-first, nineteen hundred sixty-eight,
38 and at all times thereafter, binding on the taxpayer or, property, the
39 physical construction, reconstruction or erection of which began on or
40 before December thirty-first, nineteen hundred sixty-eight or which
41 began after such date pursuant to an order placed on or before December
42 thirty-first, nineteen hundred sixty-eight, and then only with respect
43 to that portion of the basis thereof or the expenditures relating there-
44 to which is properly attributable to such construction, reconstruction
45 or erection after December thirty-first, nineteen hundred sixty-three,
46 or (B) acquired after December thirty-first, nineteen hundred sixty-sev-
47 en, pursuant to a contract which was, on or before December thirty-
48 first, nineteen hundred sixty-eight, and at all times thereafter, bind-
49 ing on the taxpayer or pursuant to an order placed on or before December
50 thirty-first, nineteen hundred sixty-eight, by purchase as defined in
51 section one hundred seventy-nine (d) of the internal revenue code, if
52 the original use of such property commenced with the taxpayer, commenced
53 in this state and commenced after December thirty-first, nineteen
54 hundred sixty-seven, or (C) acquired, constructed, reconstructed, or
55 erected subsequent to December thirty-first, nineteen hundred sixty-
56 eight, if such acquisition, construction, reconstruction or erection is
S. 8578 988
1 pursuant to a plan of the taxpayer which was in existence December thir-
2 ty-first, nineteen hundred sixty-eight, and not thereafter substantially
3 modified, and such acquisition, construction, reconstruction or erection
4 would qualify under the rules in paragraph four, five or six of subdivi-
5 sion (h) of section forty-eight of the internal revenue code provided
6 all references in such paragraphs four, five and six to the dates Octo-
7 ber nine, nineteen hundred sixty-six, and October ten, nineteen hundred
8 sixty-six, shall be read as December thirty-first, nineteen hundred
9 sixty-eight. A taxpayer shall be allowed a deduction under clause (A),
10 (B) or (C) of the preceding sentence of this paragraph only if the
11 tangible property shall be delivered or the construction, reconstruction
12 or erection shall be completed on or before December thirty-first, nine-
13 teen hundred seventy, except in the case of tangible property which is
14 acquired, constructed, reconstructed or erected pursuant to a contract
15 which was, on or before December thirty-first, nineteen hundred sixty-
16 eight, and at all times thereafter binding on the taxpayer. The modifi-
17 cation provided for in paragraph two of this subdivision shall be
18 allowed only with respect to tangible property: (A) the construction,
19 reconstruction or erection of which is completed after December thirty-
20 first, nineteen hundred sixty-seven, and then only with respect to that
21 portion of the basis thereof or the expenditures relating thereto which
22 is properly attributable to such construction, reconstruction or
23 erection after December thirty-first, nineteen hundred sixty-three, or
24 (B) acquired after December thirty-first, nineteen hundred sixty-seven,
25 by purchase as defined in section one hundred seventy-nine (d) of the
26 internal revenue code, if the original use of such property commenced
27 with the taxpayer, commenced in this state and commenced after December
28 thirty-first, nineteen hundred sixty-three. Provided, however, a
29 modification under paragraph one of this subdivision shall be allowed
30 with respect to property described in this paragraph only on condition
31 that such property shall be principally used by the taxpayer in the
32 production of goods by manufacturing; processing; assembling; refining;
33 mining; extracting; farming; agriculture; horticulture; floriculture;
34 viticulture; or commercial fishing. Manufacturing shall mean the proc-
35 ess of working raw materials into wares suitable for use or which gives
36 new shapes, new qualities or new combinations to matter which already
37 has gone through some artificial process by the use of machinery, tools,
38 appliances and other similar equipment. Property used in the production
39 of goods shall include machinery, equipment or other tangible property
40 which is principally used in the repair and service of other machinery,
41 equipment or other tangible property used principally in the production
42 of goods and shall include all facilities used in the manufacturing
43 operation, including storage of material to be used in manufacturing and
44 of the products that are manufactured. At the option of the taxpayer,
45 air and water pollution control facilities which qualify for elective
46 deductions under subdivision (h) of this section may be treated, for
47 purposes of this paragraph, as tangible property principally used in the
48 production of goods by manufacturing; processing; assembling; refining;
49 mining; extracting; farming; agriculture; horticulture; floriculture;
50 viticulture; or commercial fishing, in which event, a deduction shall
51 not be allowed under such subdivision (h). However, for any taxable
52 year beginning on or after January first, nineteen hundred sixty-eight,
53 a taxpayer shall not be allowed a modification under paragraph one of
54 this subdivision with respect to tangible personal property leased to
55 any other person or corporation, provided, any contract or agreement to
56 lease or rent or for a license to use such property shall be considered
S. 8578 989
1 a lease. With respect to property which a taxpayer uses for purposes
2 other than leasing for part of a taxable year and leases for a part of a
3 taxable year, a modification under paragraph one of this subdivision
4 shall be allowed in proportion to the part of the year such property is
5 used by the taxpayer.
6 (5) If the modifications allowable for any taxable year pursuant to
7 this subdivision exceed the taxpayer's city adjusted gross income,
8 determined without the allowance of such modifications, the excess may
9 be carried over to the following taxable year or years and may be
10 subtracted from federal adjusted gross income for such year or years.
11 (6) In any taxable year when property is sold or otherwise disposed
12 of, with respect to which a modification has been allowed pursuant to
13 paragraph one or two of this subdivision, the basis of such property
14 shall be adjusted to reflect the modifications so allowed, and if the
15 basis as so adjusted is lower than the adjusted basis of the same prop-
16 erty for federal income tax purposes, there shall be added to federal
17 adjusted gross income the amount of the difference between such adjusted
18 bases.
19 (h) Optional modification for waste treatment facility expenditures.
20 For taxable years commencing prior to January first, nineteen hundred
21 eighty-nine, at the election of the taxpayer, there shall also be
22 subtracted from federal adjusted gross income expenditures paid or
23 incurred during the taxable year for the construction, reconstruction,
24 erection or improvement of industrial waste treatment facilities and air
25 pollution control facilities.
26 (1)(A) The term "industrial waste treatment facilities" shall mean
27 facilities for the treatment, neutralization, or stabilization of indus-
28 trial waste, as the term "industrial waste" is defined in section
29 17-0105 of the environmental conservation law, from a point immediately
30 preceding the point of such treatment, neutralization or stabilization
31 to the point of disposal, including the necessary pumping and transmit-
32 ting facilities, but excluding such facilities installed for the primary
33 purpose of salvaging materials which are usable in the manufacturing
34 process or are marketable.
35 (B) The term "air pollution control facilities" shall mean facilities
36 which remove, reduce, or render less noxious air contaminants emitted
37 from an air contamination source, as the terms "air contaminant" and
38 "air contamination source" are defined in section 19-0107 of the envi-
39 ronmental conservation law, from a point immediately preceding the point
40 of such removal, reduction or rendering to the point of discharge of
41 air, meeting emission standards as established by the air pollution
42 control board, but excluding such facilities installed for the primary
43 purpose of salvaging materials which are usable in the manufacturing
44 process or are marketable and excluding those facilities which rely for
45 their efficacy on dilution, dispersion or assimilation of air contam-
46 inants in the ambient air after emission.
47 (2) Such modifications shall be allowed only:
48 (A) with respect to tangible property which is depreciable, pursuant
49 to section one hundred sixty-seven of the internal revenue code, having
50 a situs in this state and used in the taxpayer's trade or business, the
51 construction, reconstruction, erection or improvement of which, in the
52 case of industrial waste treatment facilities, is initiated on or after
53 January first, nineteen hundred sixty-five, or which, in the case of air
54 pollution control facilities, is initiated on or after January first,
55 nineteen hundred sixty-six, and
S. 8578 990
1 (B) on condition that such facilities have been certified by the
2 commissioner of environmental conservation or his or her designated
3 representative, in the same manner as provided for in section 17-0707 or
4 19-0309 of the environmental conservation law, as applicable, as comply-
5 ing with the provisions of such environmental conservation law, the
6 state sanitary code and regulations, permits or orders promulgated
7 pursuant thereto, and
8 (C) on condition that for the taxable year and all succeeding taxable
9 years, any deductions allowed for federal income tax purposes for such
10 expenditures or for depreciation or amortization of the same property,
11 except to the extent that its basis may be attributable to factors other
12 than such expenditures, be added to federal adjusted gross income pursu-
13 ant to paragraph five of subdivision (b) of this section, or in case a
14 modification is allowable pursuant to this paragraph for only a part of
15 such expenditures, on condition that a proportionate amount of any such
16 deductions allowed for federal income tax purposes be added to federal
17 adjusted gross income, and
18 (D) where the election provided for in subdivision (g) of this
19 section has not been exercised in respect to the same property.
20 (3)(A) If expenditures in respect to an industrial waste treatment
21 facility or an air pollution control facility have been allowed as a
22 modification as provided herein and if within ten years from the end of
23 the taxable year in which such modification was allowed such property or
24 any part thereof is used for the primary purpose of salvaging materials
25 which are usable in the manufacturing process or are marketable, the
26 taxpayer shall report such change of use in its return for the first
27 taxable year during which it occurs, and the tax commission may recom-
28 pute the tax for the year or years for which such modification was
29 allowed, and may assess any additional tax resulting from such recompu-
30 tation within the time fixed by paragraph eight of subdivision (c) of
31 section 11-1783 of this chapter.
32 (B) If a modification is allowed as herein provided for expenditures
33 paid or incurred during any taxable year on the basis of a temporary
34 certificate of compliance issued pursuant to the environmental conserva-
35 tion law, and if the taxpayer fails to obtain a permanent certificate of
36 compliance upon completion of the facilities with respect to which such
37 temporary certificate was issued, the taxpayer shall report such failure
38 in its report for the taxable year during which such facilities are
39 completed, and the tax commission may recompute the tax for the year or
40 years for which such modification was allowed, and may assess any addi-
41 tional tax resulting from such recomputation within the time fixed by
42 paragraph eight of subdivision (c) of section 11-1783 of this chapter.
43 (C) If a modification is allowed as herein provided for expenditures
44 paid or incurred during any taxable year in respect to an air pollution
45 control facility on the basis of a certificate of compliance issued
46 pursuant to the environmental conservation law and the certificate is
47 revoked pursuant to section 19-0309 of the environmental conservation
48 law, the tax commission may recompute the tax for the year or years for
49 which the facility is not or was not in compliance with the applicable
50 provisions of the environmental conservation law, the state sanitary
51 code or codes, rules, regulations, permits or orders issued pursuant
52 thereto, and for which a modification was allowed, and may assess any
53 additional tax resulting from such recomputation within the time fixed
54 by paragraph eight of subdivision (c) of section 11-1783 of this chap-
55 ter.
S. 8578 991
1 (4) In any taxable year when property is sold or otherwise disposed
2 of, with respect to which a modification has been allowed pursuant to
3 this paragraph, such modification shall be disregarded in computing gain
4 or loss, and the gain or loss on the sale or other disposition of such
5 property shall be the gain or loss entering into the computation of
6 federal adjusted gross income for such taxable year.
7 (i) In the case of mines, oil and gas wells and other natural depos-
8 its, any allowance for percentage depletion pursuant to section six
9 hundred thirteen or section six hundred thirteen-A of the internal
10 revenue code, shall be added to federal adjusted gross income. However,
11 with respect to the property as to which such addition to federal
12 adjusted gross income is required, an allowance for depletion shall be
13 subtracted from federal adjusted gross income in the amount that would
14 be deductible under section six hundred eleven of such code if the
15 deduction for an allowance for depletion were computed without reference
16 to such section six hundred thirteen or section six hundred thirteen-A.
17 With respect to the computation of depletion pursuant to this subdivi-
18 sion, the basis for such computation shall be the basis for state income
19 tax purposes provided for in subsection (i) of section six hundred
20 twelve of the tax law. The portion of any gain from the sale or other
21 disposition of such property having a higher adjusted basis for city
22 income tax purposes than for federal income tax purposes, that does not
23 exceed such difference in basis, shall be subtracted from federal
24 adjusted gross income.
25 (j) Modification for nonpublic school tuition. (1) General. An indi-
26 vidual shall be entitled to subtract from his or her federal adjusted
27 gross income an amount shown in the table set forth in this paragraph
28 for his or her city adjusted gross income for the taxable year, computed
29 without the benefit of this modification, multiplied by the number of
30 his or her dependents, not exceeding three, attending a nonpublic school
31 on a full-time basis for at least four months during the regular school
32 year for the education of such dependent in grades one through twelve,
33 provided such individual is allowed an exemption under section 11-1716
34 of this chapter for such dependent. Provided, further, that the modifi-
35 cation under this paragraph may be taken only if such individual has
36 paid at least fifty dollars for each such dependent in tuition to such
37 nonpublic school for such education of such dependent. No taxpayer
38 shall be entitled to the modification provided for in this paragraph if
39 he or she claims a tuition reimbursement payment pursuant to article
40 twelve-A of the education law.
41 If city adjusted The amount allowable
42 gross income is: for each dependent is:
43 Less than $9,000 $1,000
44 9,000 -- 10,999 850
45 11,000 -- 12,999 700
46 13,000 -- 14,999 550
47 15,000 -- 16,999 400
48 17,000 -- 18,999 250
49 19,000 -- 20,999 150
50 21,000 -- 22,999 125
51 23,000 -- 24,999 100
52 25,000 and over -0-
53 (2) Husband and wife. In determining the applicable city adjusted
54 gross income of a husband and wife for purposes of the table set forth
S. 8578 992
1 in paragraph one of this subdivision, the city adjusted gross income of
2 a husband and wife shall be the aggregate of their city adjusted gross
3 incomes for the taxable year, determined without the benefit of the
4 modification provided for in this subdivision, and the number of depen-
5 dents with respect to which this modification may be claimed shall be no
6 more than three in the aggregate.
7 (3) Definitions. (A) "Tuition", as used in this subdivision, shall
8 mean the amount actually paid during the taxable year by the taxpayer
9 for the enrollment of a dependent during the regular school year at a
10 nonpublic school.
11 (B) "Nonpublic school", as used in this subdivision, shall mean any
12 non-profit elementary or secondary school in the state of New York,
13 other than a public school, which: (i) is providing instruction in
14 accordance with article seventeen and section thirty-two hundred four of
15 the education law, (ii) has not been found to be in violation of title
16 VI of the civil rights act of nineteen hundred sixty-four, 78 Stat. 252,
17 42 U.S.C. § 2000(d) and (iii) which is entitled to a tax exemption under
18 sections five hundred one (a) and five hundred one (c) (3) of the feder-
19 al internal revenue code of nineteen hundred fifty-four, as amended.
20 The commissioner of education shall furnish to the tax commission by
21 February first of each year, a certified list of nonpublic schools which
22 comply with clause (i) of this subparagraph for the preceding calendar
23 year and shall provide such other assistance with respect to whether
24 nonpublic schools come within clause (i) as the tax commission may
25 require.
26 (C) "Regular school year", as used in this subdivision, shall mean the
27 months of the taxable year exclusive of July and August.
28 (4) Additional information. Any claim for a modification under this
29 subdivision shall be accompanied by such information as the tax commis-
30 sion may require.
31 (k) Modification for contributions to a qualified higher education
32 fund. (1) A taxpayer may subtract from his or her federal adjusted
33 gross income amounts which during the taxable year are contributed by
34 him or her to a qualified higher education fund, as defined in paragraph
35 three of this subdivision, established by him or her, limited to the
36 product of seven hundred fifty dollars and the number of eligible bene-
37 ficiaries, as defined in subparagraph (C) of paragraph three of this
38 subdivision, as of the first or last day of the taxable year, whichever
39 yields the higher limit. Provided, however, that a taxpayer whose taxa-
40 ble year began on January first, nineteen hundred seventy-eight may
41 subtract from his or her federal adjusted gross income for such taxable
42 year, amounts contributed by him or her to a qualified higher education
43 fund during the fifteen month period beginning January first, nineteen
44 hundred seventy-eight and ending April fifteenth, nineteen hundred
45 seventy-nine. Contributions to a qualified higher education fund made
46 during the period beginning January first, nineteen hundred seventy-nine
47 and ending April fifteenth, nineteen hundred seventy-nine and subtracted
48 from a taxpayer's federal adjusted gross income for the taxable year
49 beginning January first, nineteen hundred seventy-eight shall be deemed
50 to have been made during such taxable year. However, such number of
51 eligible beneficiaries shall not include any individual who was a
52 student at an institution of higher education during the previous taxa-
53 ble year. For purposes of this paragraph, the term "student" shall have
54 the same meaning as that ascribed to it by paragraph four of subsection
55 (e) of section one hundred fifty-one of the internal revenue code,
S. 8578 993
1 except that the reference therein to "5 calendar months" shall be deemed
2 to be a reference to "3 calendar months."
3 (2) A taxpayer who establishes a qualified higher education fund may
4 subtract from his or her federal adjusted gross income amounts included
5 in gross income for federal income tax purposes by reason of any income
6 realized by the fund or because of any payment by the fund to, or on
7 behalf of, an eligible beneficiary for the purpose specified in clause
8 (i) of subparagraph (A) of paragraph three of this subdivision.
9 (3) For purposes of this subdivision, a qualified higher education
10 fund is a fund established pursuant to a written plan described in
11 subparagraph (A) of this paragraph, but only if the fund meets the
12 requirements of subparagraph (B) of this paragraph.
13 (A) For purposes of this subdivision a "plan" means a plan estab-
14 lished:
15 (i) solely for the purpose of defraying costs associated with attend-
16 ance subsequent to graduation or separation from secondary school at an
17 institution of higher education, as defined in subparagraph (F) of this
18 paragraph, of one or more eligible beneficiaries, as defined in subpara-
19 graph (C) of this paragraph, such costs to include: (I) applicable
20 tuition and fees, exclusive of fees levied as a penalty for laboratory
21 breakage, dormitory damage and similar fees, (II) room and board as
22 charged by the institution pursuant to a contract entered into by the
23 institution and a student or, if no such contract is entered into, an
24 amount not exceeding one thousand five hundred dollars per year, which
25 amount shall include any expenses of transportation, and (III) books,
26 supplies and equipment,
27 (ii) which provides that no distribution shall be made by the fund,
28 except upon termination thereof, other than to, or on behalf of, eligi-
29 ble beneficiaries for the purpose specified in clause (i) of this
30 subparagraph,
31 (iii) which provides that upon termination of the fund all assets of
32 the fund shall be distributed to the creator of the fund, to his or her
33 estate or to a trust established for the purpose of making contributions
34 to the fund, and
35 (iv) which prohibits contributions to the fund in excess of amounts
36 which may be subtracted from federal adjusted gross income under para-
37 graph one of this subdivision.
38 (B) A fund meets the requirements of this subparagraph only if:
39 (i) it constitutes a custodial account, the assets of which are held
40 by a bank, as defined in paragraph one of subsection (d) of section four
41 hundred one of the internal revenue code, an insurance company qualified
42 to do business in this state, or another person who demonstrates, to the
43 satisfaction of the tax commission, that the manner in which he or she
44 will hold the assets will be consistent with the requirements of this
45 subdivision, or
46 (ii) it is a trust.
47 In the case of a trust referred to in clause (ii) of this subpara-
48 graph, the assets may be held by a bank or other person who demonstrates
49 to the satisfaction of the tax commission that the manner in which he or
50 she will administer the trust will be consistent with the requirements
51 of this subdivision. Such a trust shall not be disqualified under this
52 subparagraph merely because a person other than the trustee so adminis-
53 tering the trust may be granted, under the trust instrument, the power
54 to control the investment of the trust funds either by directing invest-
55 ments, including reinvestments, disposals and exchanges, or by disap-
56 proving proposed investments, including reinvestments, disposals and
S. 8578 994
1 exchanges. Such a trust may use annuity, endowment or life insurance
2 contracts of a life insurance company exclusively as the funding media
3 of the trust, if so provided by regulations of the state tax commis-
4 sion, and if the life insurance company supplies annually such informa-
5 tion about trust transactions as the tax commission shall by regulations
6 prescribe. For purposes of this subdivision, the term "bank" shall have
7 the same meaning ascribed to it by the last sentence of paragraph one of
8 subsection (d) of section four hundred one of the internal revenue code.
9 (C) For purposes of this subdivision, the term "eligible beneficiary"
10 means a person:
11 (i) having a relationship to the creator of the fund specified in
12 paragraphs one, two, three or six of subsection (a) of section one
13 hundred fifty-two of the internal revenue code,
14 (ii) who is a dependent of the creator of the fund pursuant to section
15 one hundred fifty-two of the internal revenue code, or is a member of
16 the armed forces of the United States on active duty, is a volunteer in
17 the peace corps, or is a full-time volunteer under the domestic volun-
18 teer service act of 1973, and
19 (iii) who either: (I) has not attained the age of twenty-one, except
20 that where his or her twenty-first birthday falls within a taxable year
21 with respect to which a modification based on contributions to a quali-
22 fied higher education fund with respect to which he or she is a benefi-
23 ciary is allowed to a taxpayer, for purposes of this subclause such
24 beneficiary shall be deemed not to have attained the age of twenty-one
25 until the day next succeeding the last day of such taxable year, or (II)
26 is a student, as defined in paragraph four of subsection (e) of section
27 one hundred fifty-one of the internal revenue code or, for a period of
28 up to four years, is a member of the armed forces of the United States
29 on active duty, is a volunteer in the peace corps, or is a full-time
30 volunteer under the domestic volunteer service act of 1973. Where the
31 determination of an individual's status as a student is required for a
32 purpose other than determining the permissibility of a modification
33 under this subdivision, an individual shall be deemed not to be a
34 student as of the last day of any calendar year during which he or she
35 fails to satisfy the requirements of subparagraphs (A) and (B) of para-
36 graph four of subsection (e) of section one hundred fifty-one of the
37 internal revenue code during each of five calendar months during such
38 calendar year.
39 (D) A person who meets the requirements of subparagraph (C) of this
40 paragraph shall cease to be an eligible beneficiary:
41 (i) if payments by the fund to him or her, or on his or her behalf,
42 for the purpose specified in clause (i) of subparagraph (A) of this
43 paragraph do not commence within five years after the date on which such
44 person was graduated or separated from secondary school, excluding any
45 period of up to four years during which an otherwise eligible benefici-
46 ary was a member of the armed forces of the United States on active
47 duty, a volunteer in the peace corps, or in service as a full-time
48 volunteer under the domestic volunteer service act of 1973, or
49 (ii) after the expiration of ten years from the date of such gradu-
50 ation or separation, excluding any period of up to four years during
51 which an otherwise eligible beneficiary was a member of the armed forces
52 of the United States on active duty, a volunteer in the peace corps, or
53 in service as a full-time volunteer under the domestic volunteer service
54 act of 1973, or
55 (iii) if within six months after either his or her eighteenth birthday
56 or the date on which such fund is established, whichever is later, he or
S. 8578 995
1 she does not file with the tax commission, on a form and in the manner
2 prescribed by regulation, a notice of consent relating to the tax treat-
3 ment of payments from a qualified higher education fund imposed under
4 paragraph fourteen of subdivision (b) of this section.
5 (E) Where a fund is continued subsequent to its creator's death, an
6 individual shall not cease to be an eligible beneficiary by reason of
7 failure to fulfill the requirement set forth in clause (ii) of subpara-
8 graph (C) of this paragraph.
9 (F) For purposes of this subdivision, the term "institution of higher
10 education" means an educational organization described in clause (ii) of
11 subparagraph (A) of paragraph one of subsection (b) of section one
12 hundred seventy of the internal revenue code,
13 (i) which provides an educational program for which it awards an asso-
14 ciate, baccalaureate or higher degree or provides a program which is
15 acceptable for full credit toward such a degree,
16 (ii) contributions to or for the use of which constitute charitable
17 contributions within the meaning of section one hundred seventy (c) of
18 the internal revenue code,
19 (iii) which is legally authorized to provide and does provide a
20 program of postsecondary education, and
21 (iv) which is accredited by a nationally recognized accrediting agency
22 or association listed by the United States commissioner of education.
23 (4) A qualified higher education fund shall terminate:
24 (A) if a contribution is made to the fund in excess of the amount
25 allowable as a subtraction from federal adjusted gross income under
26 paragraph one of this subdivision,
27 (B) if a distribution is made by the fund other than to, or on behalf
28 of, an eligible beneficiary for the purpose specified in clause (i) of
29 subparagraph (A) of paragraph three of this subdivision,
30 (C) if the plan ceases to have an eligible beneficiary, or
31 (D) in the absence of a testamentary disposition or inter vivos trust
32 provision to the contrary, upon the death of the creator of the fund, or
33 (E) if the fund is otherwise terminated under the tax law.
34 (5) The tax commission may by regulation require the filing of a
35 report annually by the creator of a qualified higher education fund or
36 other person designated by such regulation, such report to set forth the
37 amounts contributed to a qualified higher education fund, as well as the
38 amount, purpose and beneficiary of each disbursement made therefrom.
39 The tax commission may also by regulation require written notification
40 annually to each beneficiary of such disbursements made on his or her
41 behalf.
42 (6) The provisions of subparagraph (B) of paragraph four of this
43 subdivision shall not apply in the case of a rollover. A rollover occurs
44 where the creator of a qualified higher education fund withdraws all of
45 the assets of such fund and not later than sixty days subsequent to such
46 withdrawal establishes a new qualified higher education fund and depos-
47 its therein an amount equal to the value of the assets so withdrawn.
48 Such deposit shall not constitute a contribution within the meaning of
49 this subdivision. This paragraph shall not apply if at any time during
50 the one year period ending on the date of such withdrawal from the qual-
51 ified higher education fund the creator had made a similar withdrawal
52 from another qualified higher education fund, both such funds having at
53 least one beneficiary in common, where such prior withdrawal was
54 followed by the establishment of a new qualified higher education fund
55 such that a rollover was effected pursuant to the provisions of this
56 paragraph.
S. 8578 996
1 (l) Qualified higher education fund. (1) Upon termination of a
2 qualified higher education fund under subparagraph (A), (B) or (E) of
3 paragraph four of subdivision (k) of this section, a taxpayer to whom
4 the assets of the fund are required to be distributed pursuant to clause
5 (iii) of subparagraph (A) of paragraph three of subdivision (k) of this
6 section shall add to his or her federal adjusted gross income for the
7 taxable year during which the terminating event occurs an amount equal
8 to one hundred ten per centum of an amount which bears the same ratio to
9 the value of the assets of such fund immediately prior to termination as
10 the total contributions made to such fund by a city resident individual,
11 estate or trust bears to the total contributions made to such fund. For
12 purposes of this subdivision the value of the assets of the fund imme-
13 diately prior to termination shall include the value of any distrib-
14 utions made to or on behalf of an eligible beneficiary who subsequently
15 ceased to be an eligible beneficiary pursuant to clause (iii) of subpar-
16 agraph (D) of paragraph three of subdivision (k) of this section.
17 (2) Payments made to or on behalf of an eligible beneficiary from a
18 qualified higher education fund for the purpose specified in clause (i)
19 of subparagraph (A) of paragraph three of subdivision (k) of this
20 section shall be added to the federal adjusted gross income of the indi-
21 vidual taxpayer to whom or on whose behalf the payment is made, in
22 accordance with the following. For the first taxable year of such
23 taxpayer in which no payment described in this paragraph is made with
24 respect to him or her and during which such taxpayer is not a student,
25 as defined in paragraph four of subsection (e) of section one hundred
26 fifty-one of the internal revenue code, treating the terms "individual"
27 and "taxpayer" therein as referring to such taxpayer, or, for a period
28 of up to four years, a member of the armed forces of the United States
29 on active duty, a volunteer in the peace corps, or a full-time volunteer
30 under the domestic volunteer service act of 1973, which taxable year
31 commences after the last day of the first calendar year in which such a
32 payment is made, one-fifth of the aggregate of all such payments there-
33 tofore made, such aggregate amount pro-rated, pursuant to regulations
34 promulgated by the tax commission, according to the portion of the total
35 contributions made to the fund prior to the first day of such taxable
36 year which constitute amounts contributed by a city resident individual,
37 estate or trust, shall be added to the federal adjusted gross income of
38 such taxpayer for such taxable year and for each of the four succeeding
39 taxable years in which no such payment is made and in which such taxpay-
40 er is not a student, as defined above, or, for a period of up to four
41 years, a member of the armed forces of the United States on active duty,
42 a volunteer in the peace corps, or a full-time volunteer under the
43 domestic volunteer service act of 1973. If in a taxable year subsequent
44 to a taxable year in which such addition to federal adjusted gross
45 income is required, a payment described in this paragraph is made, one-
46 fifth of the amount of such payment, pro-rated, pursuant to regulations
47 promulgated by the tax commission, according to the portion of the total
48 contributions made to the fund prior to the first day of such taxable
49 year which constitute amounts contributed by a city resident individual,
50 estate or trust, shall be added to the federal adjusted gross income of
51 such taxpayer for each of the five immediately succeeding taxable years
52 in which no such payment is made and in which such taxpayer is not a
53 student, as defined above, or, for a period of up to four years, a
54 member of the armed forces of the United States on active duty, a volun-
55 teer in the peace corps, or a full-time volunteer under the domestic
56 volunteer service act of 1973.
S. 8578 997
1 (n) Where gain or loss is recognized for federal income tax purposes
2 upon the disposition of stock or indebtedness of a corporation electing
3 under subchapter s of chapter one of the internal revenue code:
4 (1) There shall be added to federal adjusted gross income the amount
5 of increase in basis with respect to such stock or indebtedness pursuant
6 to subsection (a) of section thirteen hundred seventy-six of the inter-
7 nal revenue code as such section was in effect for taxable years begin-
8 ning before January first, nineteen hundred eighty-three and subpara-
9 graphs (A) and (B) of paragraph one of subsection (a) of section
10 thirteen hundred sixty-seven of such code, for each taxable year of the
11 corporation beginning, in the case of a corporation taxable under arti-
12 cle nine-A of the tax law, after December thirty-first, nineteen hundred
13 eighty, for which the election provided for in subsection (a) of section
14 six hundred sixty of the tax law was not in effect, and
15 (2) There shall be subtracted from federal adjusted gross income:
16 (A) the amount of reduction in basis with respect to such stock or
17 indebtedness pursuant to subsection (b) of section thirteen hundred
18 seventy-six of the internal revenue code as such section was in effect
19 for taxable years beginning before January first, nineteen hundred
20 eighty-three and subparagraphs (B) and (C) of paragraph two of
21 subsection (a) of section thirteen hundred sixty-seven of such code, for
22 each taxable year of the corporation beginning, in the case of a corpo-
23 ration taxable under article nine-A of the tax law, after December thir-
24 ty-first, nineteen hundred eighty, for which the election provided for
25 in subsection (a) of section six hundred sixty of the tax law was not in
26 effect and
27 (B) the amount of any modifications to federal gross income with
28 respect to such stock pursuant to paragraph twenty-one of subdivision
29 (b) of this section.
30 (o) Modifications for new business investment gains and certain new
31 business investments.
32 1. For purposes of this subdivision, the following definitions shall
33 apply:
34 (A) "New business investment gain" means gain from the sale of a new
35 business investment issued to the taxpayer before January first, nine-
36 teen hundred eighty-eight, if:
37 (i) such new business investment is, in the hands of the person sell-
38 ing the same, whether or not the taxpayer, a capital asset as defined in
39 section twelve hundred twenty-one of the internal revenue code of nine-
40 teen hundred fifty-four, as amended, and
41 (ii) such new business investment was held by such person for the
42 period specified in paragraph two of this subdivision.
43 (B) "New business" means a corporation or partnership organized or
44 formed under the laws of any state which:
45 (i) adopts a plan on or after July first, nineteen hundred eighty-one
46 and before January first, nineteen hundred eighty-eight, to conduct a
47 new business within the meaning and intent of this section and to issue
48 new business investments, as defined in this subdivision, and
49 (ii) is, at the date of adoption of such plan, subject to taxation,
50 whether or not any amount is owing, under section one hundred eighty-
51 three or one hundred eighty-four of article nine of the tax law, or
52 under article nine-A of the tax law or article twenty-three of the tax
53 law, or would have been subject to tax under article twenty-three of
54 such law, as such article was in effect on January first, nineteen
55 hundred eighty, if such article were still in effect, and the first
56 taxable period for which such new business became subject to such taxa-
S. 8578 998
1 tion commenced on or after July first, nineteen hundred eighty-one and
2 before January first, nineteen hundred eighty-eight, and such first
3 taxable period includes the date of adoption of such plan; if not so
4 subject to taxation, the new business must be subject to taxation under
5 such sections or articles for the first time within one year from the
6 date of adoption of such plan, and
7 (iii) is conducted, or will be conducted, as evidenced by such plan,
8 whereby at least ninety percent of the assets, valued at original cost,
9 are located and employed in this state and eighty percent of the employ-
10 ees, in addition, in the case of a partnership, excluding partners, are
11 principally employed in this state during each taxable period, or part
12 thereof, as required by clause (iv) of this subparagraph, and
13 (iv) within ninety days after adoption of such plan, or, if a return
14 is required, as part of such return, under such article nine, article
15 nine-A or article twenty-three of the tax law, whichever is sooner,
16 shall file a new business certificate with the tax commission attesting
17 to whether it meets, if subject to taxation under such articles, or
18 intends to meet, if not so subject, all of the conditions stated in
19 clauses (i), (ii) and (iii) of this subparagraph within the time set
20 forth therein. Thereafter, during the first four taxable years of such
21 new business, along with, and as part of, any return required under such
22 articles, such new business shall make and file a new business certif-
23 icate for the period covered by such return attesting to whether it has
24 met the conditions specified in this subparagraph during the taxable
25 period covered by such return. If no return is required under such arti-
26 cles, such certificate shall be filed annually on or before the
27 fifteenth day of March which shall cover the twelve consecutive calendar
28 month period ending on the last day of December immediately preceding
29 such March fifteenth. If such new business fails to meet such conditions
30 specified in this subparagraph, it shall, in addition, give notice of
31 this fact, within the time prescribed by the tax commission, to the
32 holders of its "new business investments." The tax commission shall
33 prescribe the form and content of such new business certification and
34 may require a new business to file such certificate for periods, even if
35 no return is filed or required, but for this section, covering up to
36 eight years from the date of adoption of such plan, as in its
37 discretion, it deems the same necessary for the enforcement of this
38 section, and
39 (v) Special rules:
40 (1) For any taxable period, in order to constitute a new business, a
41 business enterprise must have derived more than sixty percent of its
42 aggregate gross receipts from sources other than royalties, rents, divi-
43 dends, interest, annuities and sales or exchanges of stock or securi-
44 ties.
45 (2) A new business does not include: (i) any new business of which
46 twenty-five percent or more of the number of shares of stock that enti-
47 tle the holders thereof to vote for the election of directors or trus-
48 tees is owned, directly or indirectly, by a taxpayer subject to tax
49 under section one hundred eighty-three, one hundred eighty-four, former
50 section one hundred eighty-five or former section one hundred eighty-six
51 of article nine of the tax law, or under article nine-A, or thirty-three
52 of the tax law or (ii) any new business substantially similar in opera-
53 tion and in ownership, directly or indirectly, to a business entity, or
54 entities, taxable, or previously taxable, under such section, such arti-
55 cle, article twenty-three of the tax law or which would have been
56 subject to tax under such article twenty-three, as such article was in
S. 8578 999
1 effect on January first, nineteen hundred eighty, or the income, or
2 losses, of which is, or was, includible under article twenty-two of such
3 tax law whereby the intent and purpose of this section would be evaded.
4 (C) "New business investment" means and includes the following invest-
5 ments issued before January first, nineteen hundred eighty-eight by a
6 new business pursuant to a plan described in clause (i) of subparagraph
7 (B) of this paragraph for money or other property, other than stock or
8 securities, on or before the expiration of the third taxable year of
9 such new business, excluding any short period immediately preceding such
10 taxable year because the new business was not in existence for an entire
11 taxable year, or forty-two months from the adoption of such plan, which-
12 ever is sooner: (i) original issuance capital stock as part of a new
13 issue, (ii) other original issuance securities of a new issue of a like
14 nature as stocks which are designed as a means of investment and issued
15 for the purpose of financing corporate enterprises and providing for a
16 distribution of rights in such enterprises, (iii) debt obligations such
17 as bonds and debentures for a term of at least one year, whether
18 secured or unsecured, and (iv) certificates and other instruments
19 representing proprietary interests, whether limited or otherwise, in and
20 assumption of general liabilities, whether limited or otherwise, of a
21 partnership enterprise.
22 2. A taxpayer may subtract from his federal adjusted gross income a
23 portion of an amount constituting a new business investment gain, as
24 follows:
25 If new business The modification is equal to the
26 investment held for: following proportion of the gain
27 includible in federal
28 adjusted gross income:
29 At least four years, but
30 less than five years twenty-five percent
31 At least five years, but
32 less than six years fifty percent
33 At least six years one hundred percent
34 3. Where, within six months of the realization of a new business
35 investment gain allowable as the basis of a modification under paragraph
36 two of this subdivision, such modification is equal to less than one
37 hundred percent of the portion of the gain includible in federal
38 adjusted gross income and the taxpayer purchases a new business invest-
39 ment which is then held for a period of at least six months, the taxpay-
40 er may subtract from his or her federal adjusted gross income ten
41 percent, but not an amount that will reduce the portion of such gain
42 included in his or her New York income below zero, of the amount of such
43 gain where the purchase price of the new business investment is equal to
44 or greater than the proceeds of the sale giving rise to such gain. Where
45 the purchase price of the new business investment is less than an amount
46 equal to the proceeds of such sale, the modification allowable under
47 this paragraph shall be equal to ten percent of an amount equal to the
48 product of: (A) the amount of the gain and (B) a fraction the numerator
49 of which is the purchase price of the new investment and the denominator
50 of which is an amount equal to the proceeds of such sale. The modifica-
51 tion allowable under this paragraph may be utilized, at the option of
52 the taxpayer, with respect to the taxable year in which the new business
53 investment gain is realized or the year containing the last day of the
54 six-month retention period described in this paragraph.
55 4. The tax commission may prescribe such rules and regulations as may
56 be necessary to carry out the purposes of this subdivision.
S. 8578 1000
1 (p) New business investment deferral. For taxable years beginning
2 before January first, nineteen hundred eighty-eight, at the option of
3 the taxpayer, there may be subtracted from federal adjusted gross income
4 a reinvested amount of long-term capital gain realized in a taxable year
5 from the sale of a capital asset, as such term is defined in section
6 twelve hundred twenty-one of the internal revenue code, which is not a
7 new business investment. A reinvested amount of long-term capital gain
8 shall mean an amount which bears the same ratio to the long-term capital
9 gain realized from the sale of a capital asset which was includible in
10 New York adjusted gross income as that portion of the sale proceeds
11 which is reinvested, within one year from date of sale, in a New York
12 new business bears to the total sale proceeds. For the purposes of this
13 subdivision, a New York new business is a business enterprise which: (1)
14 has been a taxpayer under article nine-A, twenty-two, or thirty-three of
15 the tax law for no more than three taxable years, including short taxa-
16 ble years, (2) over fifty percent of the number of shares of stock that
17 entitle the holders thereof to vote for the election of directors or
18 trustees is not owned, directly or indirectly, by a taxpayer subject to
19 tax under section one hundred eighty-three, one hundred eighty-four or
20 one hundred eighty-five of article nine of the tax law, or under article
21 nine-A, thirty-two or thirty-three of the tax law, (3) is not substan-
22 tially similar in operation or ownership, directly or indirectly, to a
23 business entity, or entities taxable, or previously taxable, under such
24 sections, such articles, article twenty-three of the tax law or which
25 would have been subject to tax under article twenty-three, as such arti-
26 cle was in effect on January first, nineteen hundred eighty, or the
27 income, or losses, of which is, or was, includible under article twen-
28 ty-two of the tax law whereby the intent and purpose of this subdivision
29 would be evaded, (4) locates and employs at least ninety percent of its
30 assets in the state, (5) employs principally in the state eighty percent
31 of its employees, and (6) derives less than forty percent of its gross
32 income from dividends, interest, royalties, other than mineral, oil, or
33 gas royalties or copyright royalties, annuities and (7) reports at least
34 twenty-five hundred dollars in gross income in any taxable year. The
35 reinvested amount must qualify as a capital asset as defined pursuant to
36 section twelve hundred twenty-one of the internal revenue code and must
37 be retained by the taxpayer for at least twelve months. The modification
38 allowable under this subdivision shall be utilized with respect to the
39 taxable year in which the twelve month retention period ends.
40 (q) An amount deferred under subdivision (p) of this section shall be
41 added to federal adjusted gross income when the reinvestment in the New
42 York new business which qualified a taxpayer for such deferral is sold.
43 (r) In the case of a sale or other disposition of property acquired
44 from a decedent and valued by the executor of the estate of such dece-
45 dent for the purposes of the tax under article twenty-six of the tax law
46 pursuant to paragraph two of subsection (b) of section nine hundred
47 fifty-four of the tax law, where such estate was insufficient to require
48 the filing of a federal estate tax return, the amount necessary to prop-
49 erly reflect the gain or loss from such sale or other disposition which
50 would have been realized under this chapter, had, in the case of clause
51 (i) of this subdivision, a federal estate tax return been filed similar-
52 ly valuing such property pursuant to section two thousand thirty-two of
53 the internal revenue code, or in the case of clause (ii) of this subdi-
54 vision, pursuant to section two thousand thirty-two-A of such code.
55 (s) New York S termination year. (1) General. In the case of a New
56 York S termination year, the amount of any item of S corporation income,
S. 8578 1001
1 loss and deduction included in the shareholder's federal adjusted gross
2 income and any reductions for taxes, as described in paragraphs two and
3 three of subsection (f) of section thirteen hundred sixty-six of the
4 internal revenue code, shall be adjusted in accordance with the treat-
5 ment provided in paragraph two or three of this subdivision.
6 (2) Pro rata allocation. Unless paragraph three of this subdivision
7 applies, an equal portion of each S corporation item shall be assigned
8 to each day of the S corporation's taxable year for federal income tax
9 purposes. The portion of each such item thereby assigned to the S short
10 year shall be treated as an item of a New York S corporation, and the
11 portion of each such item thereby assigned to the C short year shall be
12 treated as an item of an S corporation which is a New York C corpo-
13 ration.
14 (3) Normal tax accounting. The portion of each S corporation item
15 assigned to the S short year and the C short year shall be determined
16 using normal tax accounting rules if:
17 (A) there is a sale or exchange of fifty percent or more of the stock
18 in such corporation during the New York S termination year or
19 (B) the corporation so elects, as provided in subparagraph (B) of
20 paragraph two of subsection (s) of section six hundred twelve of the tax
21 law.
22 (t) Related members expense add back. (1) Definitions. (A) Related
23 member. "Related member" means a related person as defined in subpara-
24 graph (c) of paragraph three of subsection (b) of section four hundred
25 sixty-five of the internal revenue code, except that "fifty percent"
26 shall be substituted for "ten percent".
27 (B) Effective rate of tax. "Effective rate of tax" means, as to any
28 city, the maximum statutory rate of tax imposed by the city on or meas-
29 ured by a related member's net income multiplied by the apportionment
30 percentage, if any, applicable to the related member under the laws of
31 said jurisdiction. For purposes of this definition, the effective rate
32 of tax as to any city is zero where the related member's net income tax
33 liability in said city is reported on a combined or consolidated return
34 including both the taxpayer and the related member where the reported
35 transactions between the taxpayer and the related member are eliminated
36 or offset. Also, for purposes of this definition, when computing the
37 effective rate of tax for a city in which a related member's net income
38 is eliminated or offset by a credit or similar adjustment that is
39 dependent upon the related member either maintaining or managing intan-
40 gible property or collecting interest income in that city, the maximum
41 statutory rate of tax imposed by said city shall be decreased to reflect
42 the statutory rate of tax that applies to the related member as effec-
43 tively reduced by such credit or similar adjustment.
44 (C) Royalty payments. Royalty payments are payments directly connected
45 to the acquisition, use, maintenance or management, ownership, sale,
46 exchange, or any other disposition of licenses, trademarks, copyrights,
47 trade names, trade dress, service marks, mask works, trade secrets,
48 patents and any other similar types of intangible assets as determined
49 by the state commissioner of taxation and finance, and include amounts
50 allowable as interest deductions under section one hundred sixty-three
51 of the internal revenue code to the extent such amounts are directly or
52 indirectly for, related to or in connection with the acquisition, use,
53 maintenance or management, ownership, sale, exchange or disposition of
54 such intangible assets.
55 (D) Valid business purpose. A valid business purpose is one or more
56 business purposes, other than the avoidance or reduction of taxation,
S. 8578 1002
1 which alone or in combination constitute the primary motivation for some
2 business activity or transaction, which activity or transaction changes
3 in a meaningful way, apart from tax effects, the economic position of
4 the taxpayer. The economic position of the taxpayer includes an increase
5 in the market share of the taxpayer, or the entry by the taxpayer into
6 new business markets.
7 (2) Royalty expense add backs. (A) For the purpose of computing city
8 adjusted gross income, a taxpayer must add back royalty payments direct-
9 ly or indirectly paid, accrued, or incurred in connection with one or
10 more direct or indirect transactions with one or more related members
11 during the taxable year to the extent deductible in calculating federal
12 taxable income.
13 (B) Exceptions. (i) The adjustment required in this subdivision shall
14 not apply to the portion of the royalty payment that the taxpayer estab-
15 lishes, by clear and convincing evidence of the type and in the form
16 specified by the commissioner of finance, meets all of the following
17 requirements: (I) the related member was subject to tax in this city or
18 another city within the United States or a foreign nation or some combi-
19 nation thereof on a tax base that included the royalty payment paid,
20 accrued or incurred by the taxpayer; (II) the related member during the
21 same taxable year directly or indirectly paid, accrued or incurred such
22 portion to a person that is not a related member; and (III) the trans-
23 action giving rise to the royalty payment between the taxpayer and the
24 related member was undertaken for a valid business purpose.
25 (ii) The adjustment required in this subdivision shall not apply if
26 the taxpayer establishes, by clear and convincing evidence of the type
27 and in the form specified by the commissioner of finance, that: (I) the
28 related member was subject to tax on or measured by its net income in
29 this city or another city within the United States, or some combination
30 thereof; (II) the tax base for said tax included the royalty payment
31 paid, accrued or incurred by the taxpayer; and (III) the aggregate
32 effective rate of tax applied to the related member in those jurisdic-
33 tions is no less than eighty percent of the statutory rate of tax that
34 applied to the taxpayer under section 11-1701 of this chapter for the
35 taxable year.
36 (iii) The adjustment required in this subdivision shall not apply if
37 the taxpayer establishes, by clear and convincing evidence of the type
38 and in the form specified by the commissioner of finance, that: (I) the
39 royalty payment was paid, accrued or incurred to a related member organ-
40 ized under the laws of a country other than the United States; (II) the
41 related member's income from the transaction was subject to a comprehen-
42 sive income tax treaty between such country and the United States; (III)
43 the related member was subject to tax in a foreign nation on a tax base
44 that included the royalty payment paid, accrued or incurred by the
45 taxpayer; (IV) the related member's income from the transaction was
46 taxed in such country at an effective rate of tax at least equal to that
47 imposed by this city; and (V) the royalty payment was paid, accrued or
48 incurred pursuant to a transaction that was undertaken for a valid busi-
49 ness purpose and using terms that reflect an arm's length relationship.
50 (iv) The adjustment required in this subdivision shall not apply if
51 the taxpayer and the commissioner of finance agree in writing to the
52 application or use of alternative adjustments or computations. The
53 commissioner of finance may, in his or her discretion, agree to the
54 application or use of alternative adjustments or computations when he or
55 she concludes that in the absence of such agreement the income of the
56 taxpayer would not be properly reflected.
S. 8578 1003
1 (u) Alimony modifications. (1) In the case of applicable alimony or
2 separate maintenance payments, the following modifications shall apply:
3 (A) There shall be subtracted from federal adjusted gross income any
4 applicable alimony or separate maintenance payments made by the taxpayer
5 during the taxable year.
6 (B) There shall be added to federal adjusted gross income any applica-
7 ble alimony or separate maintenance payments received by the taxpayer
8 during the taxable year.
9 (2) (A) The term "alimony or separate maintenance payments" means
10 payments as defined under section seventy-one of the internal revenue
11 code in effect immediately prior to the enactment of Public Law 115-97.
12 (B) The term "applicable alimony or separate maintenance payments"
13 means payments made under an alimony or separation instrument, as
14 defined in section seventy-one of the internal revenue code in effect
15 immediately prior to the enactment of Public Law 115-97, that was
16 executed after December thirty-first, two thousand eighteen, and any
17 divorce or separation instrument executed on or before such date and
18 modified after such date if the modification expressly provides that the
19 amendments made by this section apply to such modification.
20 (v) Qualified moving expense reimbursement and moving expenses. (1) In
21 the case of applicable qualified moving expense reimbursement and moving
22 expenses, the following modifications shall apply:
23 (A) There shall be subtracted from federal adjusted gross income any
24 applicable qualified moving expense reimbursement received by the
25 taxpayer during the taxable year.
26 (B) There shall be subtracted from federal adjusted gross income any
27 applicable moving expenses paid by the taxpayer during the taxable year.
28 (2) Applicable qualified moving expense reimbursement and moving
29 expenses are those deductions as allowed by paragraph (g) of section one
30 hundred thirty-two and section two hundred seventeen, respectfully, of
31 the internal revenue code immediately prior to the enactment of Public
32 Law 115-97.
33 § 11-1713 City deduction of a resident individual. The city
34 deduction of a city resident individual shall be his or her city stand-
35 ard deduction unless such resident individual elects to deduct his or
36 her city itemized deduction under the conditions set forth in section
37 11-1715 of this chapter.
38 § 11-1714 City standard deduction of a city resident individual. (a)
39 Unmarried individual. For taxable years beginning after nineteen hundred
40 ninety-five, the city standard deduction of a city resident individual
41 who is not married nor the head of a household nor a surviving spouse
42 nor an individual who is claimed as a dependent by another New York
43 state taxpayer shall be seven thousand five hundred dollars; for taxable
44 years beginning in nineteen hundred ninety-five, such standard deduction
45 shall be seven thousand four hundred dollars; for taxable years begin-
46 ning in nineteen hundred ninety-four, such standard deduction shall be
47 six thousand six hundred dollars; and for taxable years beginning after
48 nineteen hundred eighty-nine and before nineteen hundred ninety-four,
49 such standard deduction shall be six thousand dollars.
50 (b) Husband and wife filing jointly and surviving spouse. For taxable
51 years beginning after nineteen hundred ninety-five, the city standard
52 deduction of a husband and wife whose city taxable income is determined
53 jointly or a surviving spouse shall be thirteen thousand dollars; for
54 taxable years beginning in nineteen hundred ninety-five, such standard
55 deduction shall be twelve thousand three hundred fifty dollars; for
56 taxable years beginning in nineteen hundred ninety-four, such standard
S. 8578 1004
1 deduction shall be ten thousand eight hundred dollars; and for taxable
2 years beginning after nineteen hundred eighty-nine and before nineteen
3 hundred ninety-four, such standard deduction shall be nine thousand five
4 hundred dollars.
5 (c) Head of household. For taxable years beginning after nineteen
6 hundred ninety-five, the city standard deduction of an individual who is
7 a head of household shall be ten thousand five hundred dollars; for
8 taxable years beginning in nineteen hundred ninety-five, such standard
9 deduction shall be ten thousand dollars; for taxable years beginning in
10 nineteen hundred ninety-four, such standard deduction shall be eight
11 thousand one hundred fifty dollars; and for taxable years beginning
12 after nineteen hundred eighty-nine and before nineteen hundred ninety-
13 four, such standard deduction shall be seven thousand dollars.
14 (d) Married individuals filing separately. For taxable years beginning
15 after nineteen hundred ninety-five, the city standard deduction of a
16 married individual filing a separate return shall be six thousand five
17 hundred dollars; for taxable years beginning in nineteen hundred nine-
18 ty-five, such standard deduction shall be six thousand one hundred
19 seventy-five dollars; for taxable years beginning in nineteen hundred
20 ninety-four, such standard deduction shall be five thousand four hundred
21 dollars; and for taxable years beginning after nineteen hundred eighty-
22 nine and before nineteen hundred ninety-four, such standard deduction
23 shall be four thousand seven hundred fifty dollars.
24 (e) Standard deduction of a dependent individual. For taxable years
25 beginning after nineteen hundred ninety-five, the city standard
26 deduction of a city resident individual whose federal exemption amount
27 is zero shall be three thousand dollars; for taxable years beginning in
28 nineteen hundred ninety-five, such standard deduction shall be two thou-
29 sand nine hundred dollars; and for taxable years beginning after nine-
30 teen hundred eighty-nine and before nineteen hundred ninety-five, such
31 standard deduction shall be two thousand eight hundred dollars.
32 (f) For taxable years beginning on or after January first, two thou-
33 sand thirteen, the amounts of standard deductions set forth in this
34 section shall be adjusted in the same manner as the amounts of standard
35 deductions set forth in section six hundred fourteen of the tax law.
36 § 11-1715 City itemized deduction of a city resident individual.
37 (a) General. If federal taxable income of a city resident individual
38 is determined by itemizing deductions or claiming the federal standard
39 deduction from his or her federal adjusted gross income, such resident
40 individual may elect to deduct his or her city itemized deduction or
41 claim his or her city standard deduction.
42 The city itemized deduction of a city resident individual means the
43 total amount of his or her deductions from federal adjusted gross income
44 allowed, other than federal deductions for personal exemptions, as
45 provided in the laws of the United States for the taxable year, as such
46 deductions existed immediately prior to the enactment of Public Law
47 115-97 with the modifications specified in this section, except as
48 provided for under subdivision (f) of this section.
49 (b) Husband and wife.
50 (1) A husband and wife, both of whom are required to file returns
51 under this chapter, shall be allowed city itemized deductions only if
52 both elect to take city itemized deductions.
53 (2) The total of the city itemized deductions of a husband and wife
54 whose federal taxable income is determined on a joint return, but whose
55 city taxable incomes are required to be determined separately, shall be
S. 8578 1005
1 divided between them as if their federal taxable incomes had been deter-
2 mined separately.
3 (c) Modifications reducing federal itemized deductions. The total
4 amount of deductions from federal adjusted gross income shall be reduced
5 by the amount of such federal deductions for:
6 (1) state and local general sales taxes as defined in subsection (b)
7 of section one hundred sixty-four of the internal revenue code, to the
8 extent included in federal itemized deductions or income taxes imposed
9 by this city or any other taxing jurisdiction, except city earnings
10 taxes on nonresidents that are imposed upon and paid by taxpayers for
11 taxable years beginning after December thirty-first, nineteen hundred
12 seventy and before January first, two thousand, to the extent that the
13 amount of such tax exceeds the tax computed as if the rates were one-
14 fourth of one percent of wages subject to tax and three-eighths of one
15 percent of net earnings from self-employment subject to tax;
16 (2) interest on indebtedness incurred or continued to purchase or
17 carry obligations or securities the interest on which is exempt from tax
18 under this chapter; and
19 (3) ordinary and necessary expenses paid or incurred during the taxa-
20 ble year for: (i) the production or collection of income which is exempt
21 from tax under this chapter, or (ii) the management, conservation or
22 maintenance of property held for the production of such income, and the
23 amortizable bond premium for the taxable year on any bond the interest
24 on which is exempt from tax under this chapter, to the extent that such
25 expenses and premiums are deductible in determining federal taxable
26 income.
27 (4) premiums paid for long-term care insurance to the extent that such
28 premiums are deductible in determining federal taxable income.
29 (6) in the case of a shareholder of an S corporation:
30 (A) where the election provided for in subsection (a) of section six
31 hundred sixty of the tax law has not been made, S corporation items of
32 deduction included in federal itemized deductions, and
33 (B) in the case of a New York S termination year, the portion of such
34 items assigned to the period beginning on the day the election ceases to
35 be effective, as determined under subdivision (s) of section 11-1712 of
36 this subchapter.
37 (d) Modifications increasing federal itemized deductions. The total
38 amount of deductions from federal adjusted gross income shall be
39 increased by:
40 (1) (Reserved.)
41 (2) interest on indebtedness incurred or continued to purchase or
42 carry obligations or securities the interest on which is subject to tax
43 under this chapter but exempt from federal income tax, to the extent
44 that such interest on indebtedness is not deductible for federal income
45 tax purposes and is not subtracted from federal adjusted gross income
46 pursuant to paragraph nine of subdivision (c) of section 11-1712 of this
47 subchapter; and
48 (3) ordinary and necessary expenses paid or incurred during the taxa-
49 ble year for: (i) the production or collection of income which is
50 subject to tax under this chapter but exempt from federal income tax, or
51 (ii) the management, conservation or maintenance of property held for
52 the production of such income, and the amortizable bond premium for the
53 taxable year on any bond the interest on which is subject to tax under
54 this chapter but exempt from federal income tax, to the extent that such
55 expenses and premiums are not deductible in determining federal adjusted
56 gross income and are not subtracted from federal adjusted gross income
S. 8578 1006
1 pursuant to paragraph ten of subdivision (c) of section 11-1712 of this
2 subchapter.
3 (4) allowable college tuition expenses, as defined in paragraph two of
4 subsection (t) of section six hundred six of the tax law, multiplied by
5 the applicable percentage. Such applicable percentage shall be twenty-
6 five percent for taxable years beginning in two thousand one, fifty
7 percent for taxable years beginning in two thousand two, seventy-five
8 percent for taxable years beginning in two thousand three and one
9 hundred percent for taxable years beginning after two thousand three.
10 Provided, however, no deduction shall be allowed under this paragraph to
11 a taxpayer who claims the credit provided under subsection (t) of
12 section six hundred six of the tax law.
13 (e) Modification of partners and shareholders of S corporations. (1)
14 Partners and shareholders of S corporations which are not New York C
15 corporations. The amounts of modifications under subdivision (c) or
16 under paragraph two or three of subdivision (d) required to be made by a
17 partner or by a shareholder of an S corporation, other than an S corpo-
18 ration which is a New York C corporation, with respect to items of
19 deduction of a partnership or S corporation shall be determined under
20 section 11-1717 of this subchapter.
21 (2) Shareholders of S corporations which are New York C corporations.
22 In the case of a shareholder of an S corporation which is a New York C
23 corporation, the modifications under this section which relate to the
24 corporation's items of deduction shall not apply, except for the modifi-
25 cation provided under paragraph six of subdivision (c) of this section.
26 (3) New York S termination year. In the case of a New York S termi-
27 nation year, the amounts of the modifications required under this
28 section which relate to the S corporation's items of deduction shall be
29 adjusted in the same manner that the S corporation's items are adjusted
30 under subdivision (s) of section 11-1712 of this subchapter.
31 (f) Except as otherwise provided under subdivision (g) of this
32 section, the city itemized deduction otherwise allowable under this
33 section shall be reduced by the sum of the amounts determined under
34 paragraphs one and two of this subdivision.
35 (1) An amount equal to the city itemized deduction otherwise allowable
36 under subdivision (a) of this section, multiplied by a percentage, such
37 percentage to be determined by multiplying, for taxable years beginning
38 in nineteen hundred eighty-eight, ten percent, and for taxable years
39 beginning after nineteen hundred eighty-eight, twenty-five percent, by a
40 fraction,
41 (A) in the case of an unmarried individual or married individual
42 filing a separate return, the numerator of which is the lesser of fifty
43 thousand dollars or the excess of such individual's city adjusted gross
44 income over one hundred thousand dollars and the denominator of which is
45 fifty thousand dollars;
46 (B) in the case of a married individual filing a joint return or a
47 surviving spouse, the numerator of which is the lesser of fifty thousand
48 dollars or the excess of such individual's city adjusted gross income
49 over two hundred thousand dollars and the denominator of which is fifty
50 thousand dollars;
51 (C) in the case of a head of household, the numerator of which is the
52 lesser of fifty thousand dollars or the excess of such individual's city
53 adjusted gross income over one hundred fifty thousand dollars and the
54 denominator of which is fifty thousand dollars.
55 (2) An amount equal to the city itemized deduction of an individual
56 otherwise allowable under subdivision (a) of this section, multiplied by
S. 8578 1007
1 a percentage, such percentage to be determined by multiplying, for taxa-
2 ble years beginning in nineteen hundred eighty-eight, ten percent, and
3 for taxable years beginning after nineteen hundred eighty-eight, twen-
4 ty-five percent, by a fraction, the numerator of which is the lesser of
5 fifty thousand dollars or the excess of such individual's city adjusted
6 gross income over four hundred seventy-five thousand dollars and the
7 denominator of which is fifty thousand dollars.
8 (g) Notwithstanding subdivision (a) of this section, the city itemized
9 deduction for charitable contributions shall be the amount allowed under
10 section one hundred seventy of the internal revenue code, as limited by
11 this subdivision. (1) With respect to an individual whose New York
12 adjusted gross income is over one million dollars but no more than ten
13 million dollars, the New York itemized deduction shall be an amount
14 equal to fifty percent of any charitable contribution deduction allowed
15 under section one hundred seventy of the internal revenue code for taxa-
16 ble years beginning after two thousand nine and before two thousand
17 twenty-five. With respect to an individual whose New York adjusted gross
18 income is over one million dollars, the New York itemized deduction
19 shall be an amount equal to fifty percent of any charitable contribution
20 deduction allowed under section one hundred seventy of the internal
21 revenue code for taxable years beginning in two thousand nine or after
22 two thousand twenty-four.
23 (2) With respect to an individual whose New York adjusted gross income
24 is over ten million dollars, the New York itemized deduction shall be an
25 amount equal to twenty-five percent of any charitable contribution
26 deduction allowed under section one hundred seventy of the internal
27 revenue code for taxable years beginning after two thousand nine and
28 ending before two thousand twenty-five.
29 § 11-1716 City exemptions of a city resident individual. (a) Gener-
30 al. For taxable years beginning after nineteen hundred eighty-seven, a
31 city resident individual shall be allowed a city exemption of one thou-
32 sand dollars for each exemption for which such resident individual is
33 entitled to a deduction for the taxable year under subsection (c) of
34 section one hundred fifty-one of the internal revenue code; and for
35 taxable years beginning in nineteen hundred eighty-seven, a city resi-
36 dent individual other than a taxpayer whose federal exemption amount is
37 zero shall be allowed a city exemption of nine hundred dollars for each
38 exemption for which he or she is entitled to a deduction for the taxable
39 year for federal income tax purposes.
40 (b) Husband and wife. If the city income taxes of a husband and wife
41 are required to be separately determined but their federal income tax is
42 determined on a joint return, each of them shall be separately entitled
43 to the city exemptions under subdivision (a) of this section to which
44 each would be separately entitled for the taxable year if their federal
45 income taxes had been determined on separate returns.
46 § 11-1717 Resident partners and shareholders of S corporations. (a)
47 Partner's and shareholder's modifications. In determining city adjusted
48 gross income and city taxable income of a city resident partner or a
49 city resident shareholder of an S corporation, other than an S corpo-
50 ration which is a New York C corporation, any modification described in
51 subdivision (b), (c) or (d) of section 11-1712 of this subchapter, or
52 subdivision (c) of section 11-1715 of this subchapter or paragraph two
53 or three of subdivision (d) of such section, which relates to an item of
54 partnership or S corporation income, gain, loss or deduction shall be
55 made in accordance with the partner's distributive share or the share-
56 holder's pro rata share, for federal income tax purposes, of the item to
S. 8578 1008
1 which the modification relates. Where a partner's distributive share or
2 a shareholder's pro rata share of any such item is not required to be
3 taken into account separately for federal income tax purposes, the part-
4 ner's or shareholder's share of such item shall be determined in accord-
5 ance with his or her share, for federal income tax purposes, of partner-
6 ship or S corporation taxable income or loss generally. In the case of
7 a New York S termination year, his or her pro rata share of any such
8 item shall be determined under subdivision (s) of section 11-1712 of
9 this subchapter.
10 (b) Character of items. Each item of partnership and S corporation
11 income, gain, loss, or deduction shall have the same character for a
12 partner or shareholder under this subchapter as for federal income tax
13 purposes. Where an item is not characterized for federal income tax
14 purposes, it shall have the same character for a partner or shareholder
15 as if realized directly from the source from which realized by the part-
16 nership or S corporation or incurred in the same manner as incurred by
17 the partnership or S corporation.
18 (c) City tax avoidance or evasion. Where a partner's distributive
19 share of an item of partnership income, gain, loss or deduction is
20 determined for federal income tax purposes by special provision in the
21 partnership agreement with respect to such item, and where the principal
22 purpose of such provision is the avoidance or evasion of tax under this
23 chapter, the partner's distributive share of such item, and any modifi-
24 cation required with respect thereto, shall be determined as if the
25 partnership agreement made no special provision with respect to such
26 item.
27 § 11-1717.1 Residents; special provisions. Notwithstanding any other
28 provisions of this chapter, the city adjusted gross income and the city
29 taxable income of a resident individual or partner of a partnership
30 doing an insurance business as a member of the New York insurance
31 exchange described in section six thousand two hundred one of the insur-
32 ance law, shall not include any item of income, gain, loss or deduction
33 of such business, which is the individual's distributive or pro rata
34 share for federal income tax purposes or which the individual is
35 required to take into account separately for federal income tax
36 purposes. Provided however, such individual's city adjusted gross
37 income shall include his or her distributive or pro rata share of the
38 allocated entire net income as determined by such business under
39 sections fifteen hundred three and fifteen hundred four of the tax law.
40 In the event such allocated entire net income is a loss, there shall not
41 be subtracted from federal adjusted gross income in computing city
42 adjusted gross income such individual's distributive share of such loss.
43 § 11-1718 City taxable income of a city resident estate or trust.
44 The city taxable income of a city resident estate or trust means its
45 federal taxable income as defined in the laws of the United States for
46 the taxable year, with the following modifications:
47 (2) There shall be subtracted the modifications described in para-
48 graphs four and five of subdivision (c) of section 11-1712 of this
49 subchapter, with respect to gains from the sale or other disposition of
50 property, to the extent such gains are excluded from federal distribut-
51 able net income of the estate or trust.
52 (3) There shall be added or subtracted, as the case may be, the share
53 of the estate or trust in the city fiduciary adjustment determined under
54 section 11-1719 of this subchapter.
55 (4) There shall be added or subtracted, as the case may be, the
56 modifications described in paragraphs six, ten, seventeen, eighteen,
S. 8578 1009
1 nineteen, twenty, twenty-one, twenty-two, twenty-three, twenty-four,
2 twenty-five, twenty-six, twenty-seven, twenty-nine, thirty-four and
3 thirty-five of subdivision (b) and in paragraphs eleven, thirteen,
4 fifteen, nineteen, twenty, twenty-one, twenty-two, twenty-three, twen-
5 ty-four, twenty-five, twenty-six and twenty-eight of subdivision (c) of
6 section 11-1712 of this subchapter.
7 (5) In the case of a trust, there shall be added the amount of any
8 includible gain, reduced by any deductions properly allocable thereto,
9 upon which tax is imposed for the taxable year pursuant to section six
10 hundred forty-four of the internal revenue code.
11 § 11-1719 Share of a resident estate, trust or beneficiary in city
12 fiduciary adjustment. (a) General. An adjustment shall be made in
13 determining city taxable income of a city resident estate or trust under
14 section 11-1718 of this subchapter, or city adjusted gross income of a
15 city resident beneficiary of any estate or trust under subdivision (d)
16 of section 11-1712 of this subchapter, in the amount of the share of
17 each in the city fiduciary adjustment as determined in this section.
18 (b) Definition. The city fiduciary adjustment shall be the net
19 amount of the modifications described in section 11-1712 of this
20 subchapter, including subdivision (d) if the estate or trust is a bene-
21 ficiary of another estate or trust, in subdivision (c) and paragraphs
22 two and three of subdivision (d) of section 11-1715 of this subchapter,
23 and in subdivision (e) of this section, which relate to items of income,
24 gain, loss or deduction of an estate or trust. The net amount of such
25 modifications shall not include:
26 (1) Any modification described in paragraphs one and two of subdivi-
27 sion (b) and paragraphs one, two, four, five, six, and seven of subdivi-
28 sion (c) of section 11-1712 of this subchapter with respect to any
29 amount which, pursuant to the terms of the governing instrument, is paid
30 or permanently set aside for a charitable purpose during the taxable
31 year, and
32 (2) Any modification described in paragraph four or five of subdivi-
33 sion (c) of section 11-1712 of this subchapter, with respect to gains
34 from the sale or other disposition of property, to the extent such gains
35 are excluded from federal distributable net income of the estate or
36 trust.
37 (c) Shares of city fiduciary adjustment.
38 (1) The respective shares of an estate or trust and its benefici-
39 aries, including, solely for the purpose of this allocation, nonresident
40 beneficiaries, in the city fiduciary adjustment shall be in proportion
41 to their respective shares of federal distributable net income of the
42 estate or trust.
43 (2) If the estate or trust has no federal distributable net income
44 for the taxable year, the share of each beneficiary in the city fiduci-
45 ary adjustment shall be in proportion to his or her share of the estate
46 or trust income for such year, under local law or the governing instru-
47 ment, which is required to be distributed currently and any other
48 amounts of such income distributed in such year. Any balance of the
49 city fiduciary adjustment shall be allocated to the estate or trust.
50 (d) Alternate attribution of modifications. The tax commission may
51 by regulation establish such other method or methods of determining to
52 whom the items comprising the fiduciary adjustment shall be attributed,
53 as may be appropriate and equitable. Such method may be used by the
54 fiduciary in his or her discretion whenever the allocation of the fidu-
55 ciary adjustment pursuant to subdivision (c) of this section would
S. 8578 1010
1 result in an inequity which is substantial both in amount and in
2 relation to the amount of the fiduciary adjustment.
3 (e) Additional modifications. (1) For any taxable year beginning after
4 December thirty-first, two thousand seventeen, and before January first,
5 two thousand twenty-six, to the extent that the estate or trust claimed
6 a deduction for taxes under section one hundred sixty-four of the inter-
7 nal revenue code that was limited to ten thousand dollars as provided in
8 subparagraph (B) of paragraph six of subdivision (b) of such section one
9 hundred sixty-four or was denied as a result of subparagraph (A) of
10 paragraph six of subdivision (b) of such section one hundred sixty-four,
11 there shall be subtracted the taxes paid or accrued in that taxable year
12 by an estate or trust that the estate or trust was not able to deduct
13 for federal income tax purposes because of such limitation or denial,
14 other than state and local sales taxes and income taxes described in
15 paragraph one of subdivision (c) of section 11-1715 of this subchapter.
16 In determining the makeup of the ten thousand dollars of deduction
17 claimed by the estate or trust under section one hundred sixty-four of
18 the internal revenue code, it shall be presumed that the ten thousand
19 dollars of deduction first comprises the state and local sales taxes or
20 income taxes the estate or trust accrued or paid during the taxable
21 year.
22 (2) For any taxable year beginning after December thirty-first, two
23 thousand seventeen, and before January first, two thousand twenty-six,
24 there shall be subtracted the miscellaneous itemized deductions as
25 described in and limited by section sixty-seven of the internal revenue
26 code, but excluding the deductions described in subsection (e) of
27 section sixty-seven of such code, but determined without regard to
28 subsection (g) of such section.
29 (3) For any taxable year, there shall be added the amount of any
30 deduction allowed pursuant to section one hundred ninety-nine-A of the
31 internal revenue code.
32 § 11-1721 Credits to trust beneficiary receiving accumulation distrib-
33 ution. (a) General. A city resident beneficiary of a trust whose city
34 adjusted gross income includes all or part of an accumulation distrib-
35 ution by such trust, as defined in section six hundred sixty-five of the
36 internal revenue code, including a beneficiary who is required to make
37 the modification required by paragraph thirty-six of subdivision (b) of
38 section 11-1712 of this subchapter, shall be allowed (1) a credit
39 against the tax otherwise due under this chapter for all or a propor-
40 tionate part of any tax paid by the trust under this chapter or under
41 former title T of chapter forty-six of the code of the preceding munici-
42 pality, as it was in effect prior to September first, nineteen hundred
43 eighty-six, for any preceding taxable year which would not have been
44 payable if the trust had in fact made distributions to its beneficiaries
45 at the times and in the amounts specified in section six hundred sixty-
46 six of the internal revenue code; and (2) a credit against the taxes
47 imposed by this chapter for the taxable year for any income tax imposed
48 for the taxable year or any prior taxable year by another state of the
49 United States, a political subdivision thereof, or the District of
50 Columbia, upon income both derived therefrom and subject to tax under
51 this chapter, provided that the amount of the credit shall not exceed
52 the percentage of the tax otherwise due under this chapter determined by
53 dividing the portion of the income that is both taxable to the trust in
54 such other jurisdiction and taxable to the beneficiary under this chap-
55 ter by the total amount of the beneficiary's New York city income.
S. 8578 1011
1 (b) Limitation. The credits under this section shall not reduce the
2 tax otherwise due from the beneficiary under this chapter to an amount
3 less than would have been due if the accumulation distribution or his or
4 her part thereof were excluded from his or her city adjusted gross
5 income.
6 § 11-1724 Computation of separate tax on the ordinary income portion
7 of lump sum distributions received by city resident individuals, estates
8 and trusts. (a) Amount of separate tax. The amount of tax imposed under
9 section 11-1703 of this chapter for any taxable year, with respect to
10 the ordinary income portion of a lump sum distribution received by a
11 city resident individual, estate or trust is an amount equal to five
12 times the tax which would be imposed by section 11-1701 of this chapter
13 at the rate set forth in paragraph three of subdivision (a) or (b),
14 whichever may be applicable, if the recipient of such lump sum distrib-
15 ution were an individual referred to in such subdivision and the city
16 taxable income were an amount equal to one-fifth of the excess of:
17 (1) the total taxable amount of the lump sum distribution for the
18 taxable year, over
19 (2) the minimum distribution allowance.
20 (b) Minimum distribution allowance. For purposes of this section, the
21 minimum distribution allowance shall be that which is calculated accord-
22 ing to subparagraph (C) of paragraph one of subsection (e) of section
23 four hundred two of the internal revenue code.
24 (c) Multiple distributions and distributions of annuity contracts.
25 For purposes of this section, the rules concerning multiple distrib-
26 utions and distributions of annuity contracts as specified by paragraph
27 two of subsection (e) of section four hundred two of the internal reven-
28 ue code shall be applicable, except that references to "paragraph one
29 (A)" shall be deemed to be references to this section, and except that
30 only lump sum distributions, or portions thereof, and distributions of
31 annuity contracts subject to tax under this chapter shall be included,
32 and except that references to the secretary shall be deemed to be refer-
33 ences to the tax commission.
34 (d) Definitions and special rules. For purposes of this section, the
35 following provisions shall apply, to the extent applicable to the
36 taxpayer's federal tax on lump sum distributions: (1) the definitions
37 and special rules as specified in paragraph four of subsection (e) of
38 section four hundred two of the internal revenue code; and (2) the
39 special rules relating to (A) individuals who have attained the age of
40 fifty before January first, nineteen hundred eighty-six and (B) capital
41 gains, as specified in paragraphs three, four, five and six of
42 subsection (h) of section eleven hundred twenty-two of the tax reform
43 act of nineteen hundred eighty-six as enacted by public law 99-514, but
44 (i) in the event that paragraph three of such subsection is applicable,
45 clause (ii) of subparagraph (B) of such paragraph shall be applied using
46 a rate of one and seventy-two hundredths percent, and (ii) in the event
47 that paragraph five of such subsection is applicable, the words "five"
48 and "one-fifth" in subdivision (a) of this section shall be read as
49 "ten" and "one-tenth", respectively, and subdivision (a) of this section
50 shall be applied by using the rate of tax specified in subdivision (a)
51 of section 11-1702 of this chapter as such subdivision was in effect for
52 taxable years beginning in nineteen hundred eighty-six.
53 SUBCHAPTER 3
54 RETURNS AND PAYMENT OF TAX
S. 8578 1012
1 § 11-1751 Returns and liabilities. (a) General. On or before the
2 fifteenth day of the fourth month following the close of a taxable year,
3 an income tax return under this chapter shall be made and filed by or
4 for every city resident individual, estate or trust required to file a
5 New York state personal income tax, including a separate tax on the
6 ordinary income portion of lump sum distributions, return for the taxa-
7 ble year.
8 (b) Husband and wife. (1) If the New York state personal income tax
9 liability of husband and wife is determined on a separate return, their
10 city personal income tax liabilities and returns shall be separate.
11 (2) If the New York state personal income tax liabilities of husband
12 and wife, other than a husband and wife described in paragraph three of
13 this subdivision, are determined on a joint return, they shall file a
14 joint city personal income tax return, and their tax liabilities shall
15 be joint and several except as provided in paragraphs four and five of
16 this subdivision and in subsection (e) of section six hundred eighty-
17 five of the tax law.
18 (3) If the New York state personal income tax liabilities of husband
19 and wife, other than a husband and wife described in paragraph three of
20 this subdivision are determined on a joint return, they shall file a
21 joint city personal income tax return, and their tax liabilities shall
22 be joint and several except as provided in paragraph five of this subdi-
23 vision, section 11-1755 of this subchapter and subsection (e) of section
24 six hundred eighty-five of the tax law.
25 (4) If either husband or wife is a city resident and the other is a
26 city nonresident, and their New York state personal income tax liabil-
27 ities are determined on a joint return:
28 (A) they may elect to file a joint city personal income tax return as
29 if both were residents, in which case their city personal income tax
30 liabilities shall be joint and several except as provided in paragraphs
31 four and five of this subdivision and in subsection (e) of section six
32 hundred eighty-five of the tax law, or
33 (B) they may elect to file a joint city personal income tax return as
34 if both were residents, in which case their city personal income tax
35 liabilities shall be joint and several except as provided in paragraph
36 five of this subdivision, section 11-1755 of this subchapter and
37 subsection (e) of section six hundred eighty-five of the tax law, or
38 (C) the resident spouse may elect to file a separate city personal
39 income tax return, in which case his or her city personal income tax
40 liability shall be determined as if he or she were filing a separate New
41 York state personal income tax return.
42 (5) If a joint return has been made under this subdivision for a taxa-
43 ble year and only one spouse is liable for past-due support, or a past-
44 due legally enforceable debt, or a city of New York tax warrant judgment
45 debt, or an amount of a default in repayment of a guaranteed student,
46 state university or city university loan of which the state commissioner
47 of taxation and finance has been notified pursuant to section one
48 hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
49 one-e, one hundred seventy-one-f or one hundred seventy-one-1 of the tax
50 law, as the case may be, then an overpayment and interest thereon shall
51 be credited against such past-due support, or a past-due legally
52 enforceable debt, or a city of New York tax warrant judgment debt, or
53 such amount of a default in repayment of a guaranteed student, state
54 university or city university loan, unless the spouse not liable for
55 such past-due support, or a past-due legally enforceable debt, or a city
56 of New York tax warrant judgment debt, or such amount of a default in
S. 8578 1013
1 repayment of a guaranteed student, state university or city university
2 loan demands, on a declaration made in accordance with regulations or
3 instructions prescribed by the state commissioner of taxation and
4 finance, that the portion of the overpayment and interest attributable
5 to such spouse not be credited against the past-due support, or a past-
6 due legally enforceable debt, or a city of New York tax warrant judgment
7 debt, or amount of a default in repayment of a guaranteed student, state
8 university or city university loan owed by the other spouse. Upon such
9 demand, the state commissioner of taxation and finance shall determine
10 the amount of the overpayment attributable to each spouse in accordance
11 with regulations prescribed by the state commissioner of taxation and
12 finance and credit only that portion of the overpayment and interest
13 thereon attributable to the spouse liable for past-due support, or a
14 past-due legally enforceable debt, or a city of New York tax warrant
15 judgment debt, or amount of a default in repayment of a guaranteed
16 student, state university or city university loan against such past-due
17 support, or a past-due legally enforceable debt, or a city of New York
18 tax warrant judgment debt, or such amount of a default in repayment of a
19 guaranteed student, state university or city university loan. Such
20 demand may be filed (A) with the return of the spouse not liable for
21 past-due support or past-due legally enforceable debt, or a city of New
22 York tax warrant judgment debt, or default in repayment of a guaranteed
23 student, state university, or city university loan or (B) with the
24 commissioner of taxation and finance within ten days after notification
25 is provided such spouse by the commissioner of taxation and finance
26 pursuant to subdivision seven of section one hundred seventy-one-c,
27 subdivision six of section one hundred seventy-one-d, subdivision seven
28 of section one hundred seventy-one-e, subdivision seven of section one
29 hundred seventy-one-f or subdivision six of section one hundred seven-
30 ty-one-1 of the tax law.
31 (6) The state commissioner of taxation and finance shall clearly alert
32 married taxpayers, on all appropriate publications and instructions,
33 that their liability for tax will be joint and several if they file
34 joint income tax returns. The state commissioner of taxation and finance
35 shall include notice of an individual's right to relief from joint and
36 several liability pursuant to section six hundred fifty-four of the tax
37 law in the disclosure of rights statement required by section three
38 thousand four of the tax law and in any notice regarding collection of
39 tax due with respect to a liability on a joint return.
40 (c) Decedents. The return for any deceased individual shall be made
41 and filed by his or her executor, administrator, or other person charged
42 with his or her property. If a final return of a decedent is for a
43 fractional part of a year, the due date of such return shall be the
44 fifteenth day of the fourth month following the close of the twelve-
45 month period which began with the first day of such fractional part of
46 the year.
47 (d) Individuals under a disability. The return for an individual who
48 is unable to make a return by reason of minority or other disability
49 shall be made and filed by his or her guardian, committee, fiduciary or
50 other person charged with the care of his or her person or property
51 other than a receiver in possession of only a part of his or her proper-
52 ty, or by his or her duly authorized agent.
53 (e) Estates and trusts. The return for an estate or trust shall be
54 made and filed by the fiduciary.
55 (f) Joint fiduciaries. If two or more fiduciaries are acting jointly,
56 the return may be made by any one of them.
S. 8578 1014
1 (h) Tax a debt. Any tax under this chapter, and any increase, interest
2 or penalty thereon, shall, from the time it is due and payable, be a
3 personal debt of the person liable to pay the same, to the city of New
4 York.
5 (i) Cross reference. For provisions as to information returns by part-
6 nerships, employers and other persons, see section 11-1758 of this
7 subchapter.
8 § 11-1752 Time and place for filing returns and paying tax. (a)
9 Except as provided in subdivision (b) of this section, a person required
10 to make and file a return under this chapter shall, without assessment,
11 notice or demand, pay any tax due thereon to the commissioner of taxa-
12 tion and finance on or before the date fixed for filing such return,
13 determined without regard to any extension of time for filing the
14 return. The commissioner shall prescribe by regulation the place for
15 filing any return, statement, or other document required pursuant to
16 this chapter and for payment of any tax.
17 (b) The commissioner of taxation and finance may allow individuals who
18 have income only from wages, salaries, tips and like remuneration for
19 services performed as an employee, interest, dividends and unemployment
20 compensation to elect to have the commissioner compute the tax due. To
21 provide for expeditious and uniform administration of the tax computa-
22 tions which involve numerous variables, the commissioner may further
23 qualify, with regard to period of residency, deductions, credits,
24 exemptions, amount and character of gross income, and any other appro-
25 priate factors relative to calculation of tax, those individuals who may
26 elect to have their taxes computed by the commissioner. Any such
27 election shall be made on the form prescribed by the commissioner for
28 this purpose. If a qualified taxpayer elects to have the commissioner
29 compute the tax, the amount determined by the commissioner shall be paid
30 (i) within ten days from the date of the issuance of a notice and demand
31 therefor or (ii) on the date fixed for filing such return, determined
32 without regard to any extension of time for filing, whichever is later.
33 § 11-1753 Signing of returns and other documents. (a) General. Any
34 return, statement or other document required to be made pursuant to this
35 chapter shall be signed in accordance with regulations or instructions
36 prescribed by the tax commission. The fact that an individual's name is
37 signed to a return, statement, or other document, shall be prima facie
38 evidence for all purposes that the return, statement or other document
39 was actually signed by such individual.
40 (b) Partnerships. Any return, statement or other document required of
41 a partnership shall be signed by one or more partners. The fact that a
42 partner's name is signed to a return, statement, or other document,
43 shall be prima facie evidence for all purposes that such partner is
44 authorized to sign on behalf of the partnership.
45 (c) Certifications. The making or filing of any return, statement or
46 other document or copy thereof required to be made or filed pursuant to
47 this chapter, including a copy of a federal return, shall constitute a
48 certification by the person making or filing such return, statement or
49 other document or copy thereof that the statements contained therein are
50 true and that any copy filed is a true copy.
51 § 11-1754 Change of resident status during year. (a) General. If an
52 individual changes his or her status during his or her taxable year from
53 city resident to city nonresident, or from city nonresident to city
54 resident, such individual shall file one return as a resident for the
55 portion of the year during which he or she is a city resident, and a
56 return under chapter nineteen of this title, for the portion of the year
S. 8578 1015
1 during which he or she is a city nonresident, subject to such exceptions
2 as the tax commission may prescribe by regulation.
3 (b) City taxable income as city resident. The city taxable income for
4 the portion of the year during which he or she is a city resident shall
5 be determined, except as provided in subdivision (c) of this section, as
6 if his or her taxable year for federal income tax purposes were limited
7 to the period of his or her city resident status.
8 (c) Special accruals.
9 (1) If an individual changes his or her status from city resident to
10 city nonresident, he or she shall, regardless of his or her method of
11 accounting, accrue for the portion of the taxable year prior to such
12 change of status any items of income, gain, loss or deduction accruing
13 prior to the change of status, if not otherwise properly includible,
14 whether or not because of an election to report on an installment basis,
15 or allowable for city income tax purposes for such portion of the taxa-
16 ble year or for a prior taxable year. The amounts of such accrued items
17 shall be determined with the applicable modifications described in
18 sections 11-1712 and 11-1715 of this chapter as if such accrued items
19 were includible or allowable for federal income tax purposes.
20 (2) If an individual changes his or her status from city nonresident
21 to city resident, he or she shall, regardless of his or her method of
22 accounting, accrue for the portion of the taxable year prior to such
23 change of status any items of income, gain, loss or deduction accruing
24 prior to the change of status, other than items derived from or
25 connected with New York state sources, if not otherwise properly inclu-
26 dible, whether or not because of an election to report on an installment
27 basis, or allowable for federal income tax purposes for such portion of
28 the taxable year or for a prior taxable year. The amounts of such
29 accrued items shall be determined with the applicable modifications
30 described in sections 11-1712 and 11-1715 of this chapter as if such
31 accrued items were includible or allowable for federal income tax
32 purposes.
33 (3) No item of income, gain, loss or deduction which is accrued under
34 this subdivision shall be taken into account in determining city
35 adjusted gross income or the city itemized deduction for any subsequent
36 taxable period.
37 (4) The accruals under this subdivision shall not be required if the
38 individual files with the tax commission a bond or other security
39 acceptable to the tax commission, conditioned upon the inclusion of
40 amounts accruable under this subdivision in city adjusted gross income
41 for one or more subsequent taxable years as if the individual had not
42 changed his or her resident status.
43 (5) The provisions of subdivisions (a), (b) and paragraphs one through
44 four of this subdivision shall apply if an individual changes his or her
45 status from a city resident to city nonresident or from a city nonresi-
46 dent to a city resident during a taxable year, or at the beginning of a
47 taxable year, as a result of a change of domicile or as a result of
48 becoming a city resident or city nonresident based on the definition
49 contained in subparagraph (B) of paragraph one of subdivision (b) of
50 section 11-1705 of this chapter.
51 (6) Except as provided in this paragraph, where an individual who is a
52 member of a partnership or shareholder of an S corporation changes
53 status from city resident to city nonresident, or from city nonresident
54 to city resident, the portion of the distributive or pro rata share of
55 income, gain and loss, less deductions attributable thereto, from a
56 partnership or S corporation shall be allocated to the resident and
S. 8578 1016
1 nonresident periods of the partner or shareholder on a proportionate
2 basis throughout the taxable year of the partnership or S corporation.
3 In such event, the portion of the distributive or pro rata share allo-
4 cated to the period of residency shall be determined based on the number
5 of days of residency within the reporting period of the partnership or S
6 corporation over the total number of days in the reporting period of the
7 partnership or S corporation. Provided, however, that the commissioner
8 may require, or the individual may elect, to accrue to the period of
9 residence, and the period of nonresidence, the portion of the distribu-
10 tive or pro rata share of partnership or S corporation income, gain and
11 loss, less deductions attributable thereto, accruing during the individ-
12 ual's respective resident and nonresident periods in a manner that
13 reflects the date of accrual of said income, gain and loss by the part-
14 nership or S corporation.
15 (7) Except as provided in this paragraph, where an individual who is a
16 beneficiary of an estate or trust changes status from city resident to
17 city nonresident, or from city nonresident to city resident, the portion
18 of any estate or trust income credited, distributable, payable or
19 required to be distributed to such beneficiary shall be allocated to the
20 resident and nonresident periods of the beneficiary on a proportionate
21 basis throughout the taxable year of the estate or trust. In such event,
22 the portion of such estate or trust income allocated to the period of
23 residency shall be determined based on the number of days of residency
24 within the reporting period of the estate or trust over the total number
25 of days in the reporting period of the estate or trust. Provided, howev-
26 er, that the commissioner may require, or the beneficiary may elect, to
27 accrue to the period of residence, and the period of nonresidence, the
28 portion of such estate or trust income accruing during the beneficiary's
29 respective resident and nonresident periods in a manner that reflects
30 the date of accrual of said estate or trust income by the estate or
31 trust.
32 (d) City minimum tax. Where two returns are required under this
33 section, the total of the taxes due thereon shall not be less than would
34 be due if the city taxable incomes reportable on the two returns were
35 included in one return.
36 (e) Proration. Where a return is required under this section, the
37 city personal exemptions allowable under section 11-1716 of this chapter
38 shall be prorated, under regulations of the tax commission, to reflect
39 the portions of the entire taxable year during which the individual was
40 a resident.
41 (f) Standard deduction. Where a return is required under this
42 section, the city standard deduction allowable on such return shall be
43 the amount allowed pursuant to the provisions of section 11-1714 of this
44 chapter, prorated according to the period covered by the return.
45 (g) Trusts. If the status of a trust changes during its taxable year
46 from city resident to city nonresident, or from city nonresident to city
47 resident, the fiduciary shall file one return as a city resident trust
48 for the portion of the year during which the trust is a city resident
49 trust, and one return under chapter nineteen of this title for the
50 portion of the year during which the trust is a city nonresident trust,
51 subject to such exceptions as the tax commission may prescribe by regu-
52 lations. The provisions of subdivisions (b), (c), (d) and (e) of this
53 section shall apply for the purposes of this subdivision, except to the
54 extent that any of such provisions may be inconsistent with the
55 provisions of section 11-1718 of this chapter, and except that the term
56 "individual" shall be read as "trust", the term "city adjusted gross
S. 8578 1017
1 income" shall be read as "city taxable income", reference to "gain"
2 shall include any modification for includible gain under subdivision
3 five of section 11-1718 of this chapter, and the phrase "personal
4 exemptions allowable under section 11-1716 of this chapter" shall be
5 read as "city exemptions allowable under section 11-1718 of this chap-
6 ter."
7 (h) Lump sum distributions. If the status of a taxpayer changes
8 during his or her taxable year from city resident to city nonresident,
9 or from city nonresident to city resident, the taxpayer shall, regard-
10 less of his method of accounting, accrue for the portion of the taxable
11 year prior to such change of status the total taxable amount of a lump
12 sum distribution accruing prior to the change of status, if the ordinary
13 income portion thereof is not otherwise subject to tax under section
14 11-1703 of this chapter for such portion of the taxable year or for a
15 prior taxable year. No ordinary income portion of a lump sum distrib-
16 ution the total taxable amount of which is accrued under this subdivi-
17 sion shall be subject to tax under section 11-1703 of this chapter for
18 any subsequent taxable period. The accrual under this subdivision shall
19 not be required if the taxpayer files with the tax commission a bond or
20 other security acceptable to the tax commission, conditioned upon the
21 payment of tax under section 11-1703 of this chapter, with respect to
22 such amount accruable under this subdivision, for a subsequent taxable
23 year as if the taxpayer had not changed its resident status.
24 (i) Deduction for two-earner married couples. Where a return is
25 required under this section, the amount of deduction under paragraph
26 twenty-nine of subdivision (c) of section 11-1712 of this chapter shall
27 be equal to ten percent of the lesser of:
28 (1) thirty thousand dollars, pro rated according to the period covered
29 by the return or
30 (2) the qualified earned income of the spouse with the lower qualified
31 earned income for the period covered by the return.
32 § 11-1755 Relief from joint and several liability on joint return.
33 (a) General. The provisions of section six thousand fifteen of the
34 internal revenue code applicable to the liability of individuals who
35 file joint income tax returns shall apply to the same extent as if such
36 section of such code were contained in and made part of this section,
37 except to the extent that any provision of such section is either incon-
38 sistent with or not relevant to this chapter and except as modified in
39 subdivision (b) of this section, or with such other modifications as may
40 be necessary to adapt the language of such provisions to the provisions
41 of this chapter.
42 (b) Modifications. Section six thousand fifteen of the internal reven-
43 ue code shall be read as modified by this subdivision.
44 (1) "Secretary" shall be read as "state commissioner of taxation and
45 finance".
46 (2) "Internal revenue service" shall be read as "department of taxa-
47 tion and finance".
48 (3) "Tax court" shall be read as "division of tax appeals".
49 (4) In the heading of subsection (a) and in clause (ii) of subpara-
50 graph (A) of paragraph three of subsection (c), the phrase "section
51 6013(d)(3)" shall be read as "paragraphs two and three of subdivision
52 (b) of section 11-1751 of this chapter".
53 (5) In paragraph three of subsection (b), the phrase "section
54 6662(d)(2)(A)" shall be read as "subdivision (p) of section 11-1785 of
55 this chapter".
S. 8578 1018
1 (6) In subparagraph (B) of paragraph two of subsection (d), the phrase
2 "section 1 or 55" shall be read as "section 11-1701 of this chapter".
3 (7) In clause (i) of subparagraph (B) of paragraph one of subsection
4 (e), the phrase "section 6851 or 6861" shall be read as "section 11-1794
5 of this chapter" and "section 7485" shall be read as "subdivision (c) of
6 section 11-1790 of this chapter".
7 (8) In paragraph two of subsection (e), the phrase "section 6502"
8 shall be read as "section one hundred seventy-four-a of the tax law and
9 section 11-1792 of this chapter".
10 (9) In subparagraph (A) of paragraph three of subsection (e), the
11 phrase "section 6512(b), 7121, or 7122" shall be read as "subdivision
12 fifteenth, eighteenth, eighteenth-a or eighteenth-d of section one
13 hundred seventy-one of the tax law and subdivision (b) of section
14 11-1789 of this chapter".
15 (10) The following provisions of such section six thousand fifteen
16 shall be disregarded: (A) The phrase "notwithstanding the provisions of
17 section 7421(a)" contained in clause (ii) of subparagraph (B) of para-
18 graph one of subsection (e); and (B) subparagraph (C) of paragraph three
19 of subsection (e).
20 (c) Federal determination. If an individual is relieved of a federal
21 income tax liability pursuant to subsection (b) of section six thousand
22 fifteen of the internal revenue code, there shall be a rebuttable
23 presumption that such individual shall also be entitled to equivalent
24 relief from liability under this section, to the extent that such indi-
25 vidual has an understatement of tax under this chapter for the same
26 taxable year that is attributable to the same erroneous item or items to
27 which the individual's federal income tax liability was attributable.
28 § 11-1757 Extensions of time. (a) General. The commissioner of taxa-
29 tion and finance may grant a reasonable extension of time for payment of
30 tax or estimated tax, or any installment, or for filing any return,
31 statement, or other document required pursuant to this chapter, on such
32 terms and conditions as it may require. Except for a taxpayer who is
33 outside the United States or who intends to claim nonresident status
34 pursuant to clause (ii) of subparagraph (A) of paragraph one of subdivi-
35 sion (b) of section 11-1705 of this chapter, no such extension for
36 filing any return, statement or other document, shall exceed six months.
37 (b) Furnishing of security. If any extension of time is granted for
38 payment of any amount of tax, the tax commission may require the taxpay-
39 er to furnish a bond or other security in an amount not exceeding twice
40 the amount for which the extension of time for payment is granted on
41 such terms and conditions as the tax commission may require.
42 § 11-1758 Requirements concerning returns, notices, records and state-
43 ments. (a) General. The tax commission may prescribe regulations as to
44 the keeping of records, the content and form of returns and statements,
45 and the filing of copies of federal income tax returns and determi-
46 nations. The tax commission may require any person, by regulation or
47 notice served upon such person, to make such returns, render such state-
48 ments, or keep such records, as the tax commission may deem sufficient
49 to show whether or not such person is liable under this chapter for tax
50 or for collection of tax.
51 (b) Identifying numbers. (1) When required by regulations prescribed
52 by the tax commission:
53 (A) Inclusion in returns. Any person required under the authority of
54 this chapter to make a return, statement, or other document shall
55 include in such return, statement or other document such identifying
S. 8578 1019
1 number as may be prescribed for securing proper identification of such
2 person.
3 (B) Furnishing number to other persons. Any person with respect to
4 whom a return, statement or other document is required under the author-
5 ity of this chapter to be made by another person shall furnish to such
6 other person such identifying number as may be prescribed for securing
7 his or her proper identification.
8 (C) Furnishing number of another person. Any person required under the
9 authority of this chapter to make a return, statement, or other document
10 with respect to another person shall request from such other person, and
11 shall include in any such return, statement, or other document, such
12 identifying number as may be prescribed for securing proper identifica-
13 tion of such other person.
14 (2) Limitation.
15 (A) Except as provided in subparagraph (B) of this paragraph, a return
16 of any person with respect to his or her liability for tax, or any
17 statement or other document in support thereof, shall not be considered
18 for purposes of subparagraphs (B) and (C) of paragraph one of this
19 subdivision as a return, statement or other document with respect to
20 another person.
21 (B) For purposes of subparagraphs (B) and (C) of paragraph one of this
22 subdivision, a return of an estate or trust with respect to its liabil-
23 ity for tax, and any statement or other document in support thereof,
24 shall be considered as a return, statement, or other document with
25 respect to each beneficiary of such estate or trust.
26 (3) Requirement of information. For purposes of this section, the tax
27 commission is authorized to require such information as may be necessary
28 to assign an identifying number to any person.
29 (c) Partnerships and S corporations.
30 (1) Partnerships. Every partnership having a city resident partner
31 shall make a return for the taxable year setting forth all items of
32 income, gain, loss and deduction and such other pertinent information as
33 the tax commission may by regulations and instructions prescribe. Such
34 return shall be filed on or before the fifteenth day of the fourth month
35 following the close of each taxable year except that the due date for
36 the return of a partnership consisting entirely of nonresident aliens
37 shall be the date prescribed for the filing of its federal partnership
38 return for the taxable year. For purposes of this paragraph, "taxable
39 year" means a year or a period which would be a taxable year of the
40 partnership if it were subject to tax under this chapter.
41 (2) S corporations. Every S corporation for which the election
42 provided for in subsection (a) of section six hundred sixty of the tax
43 law is in effect shall make a return setting forth all items of income,
44 loss and deduction and such other pertinent information as the tax
45 commission may by regulations and instructions prescribe. Such return
46 shall be filed on or before the fifteenth day of the third month follow-
47 ing the close of each taxable year.
48 (d) Information at source. The tax commission may prescribe regu-
49 lations and instructions requiring returns of information to be made and
50 filed on or before February twenty-eighth of each year as to the payment
51 or crediting in any calendar year of amounts of six hundred dollars or
52 more to any taxpayer under this chapter. Such returns may be required of
53 any persons, including lessees or mortgagors of real or personal proper-
54 ty, fiduciaries, employers, and all officers and employees of this
55 state, or of any municipal corporation or political subdivision of this
56 state, having the control, receipt, custody, disposal or payment of
S. 8578 1020
1 interest, rents, salaries, wages, premiums, annuities, compensations,
2 remunerations, emoluments or other fixed or determinable gains, profits
3 or income, except interest coupons payable to bearer. A duplicate of the
4 statement as to tax withheld on wages, required to be furnished by an
5 employer to an employee, shall constitute the return of information
6 required to be made under this section with respect to such wages.
7 (e) Notice of qualification as receiver, etc. Every receiver, trustee
8 in bankruptcy, assignee for benefit of creditors, or other like fiduci-
9 ary shall give notice of his or her qualification as such to the tax
10 commission, as may be required by regulation.
11 (g) Requirements applicable to tax return preparer.
12 (1) Signature of tax return preparer. Any individual who is a tax
13 return preparer and prepares any return or claim for refund, shall sign
14 such return or claim for refund in accordance with regulations or
15 instructions prescribed by the commissioner of taxation and finance.
16 (2) Furnishing identifying numbers. Any return or claim for refund
17 which is prepared by a tax return preparer shall include the identifying
18 number of the preparer required by paragraph one of this subdivision to
19 sign such return or claim for refund. In addition, where such individual
20 preparer is an employee of an employer which is a tax return preparer
21 with respect to such return or claim for refund, or where such preparer
22 is a partner in a partnership which is a tax return preparer with
23 respect to such return or claim for refund, then such return or claim
24 for refund shall also include the identifying number of such employer or
25 partnership. Such identifying numbers shall be as prescribed by the
26 commissioner of taxation and finance in order to secure the proper iden-
27 tification of such individual preparer, partnership or employer. The
28 responsibility for the inclusion of such identifying numbers shall be as
29 set forth in paragraph two of subdivision (t) of section 11-1785 of this
30 chapter.
31 (3) Furnishing copy to taxpayer. Any person who is a tax return
32 preparer with respect to any return or claim for refund shall furnish a
33 completed copy of such return or claim for refund to the taxpayer not
34 later than the time such return or claim for refund is presented for
35 such taxpayer's signature.
36 (4) Copy or list to be retained by tax return preparer. Any person who
37 is a tax return preparer with respect to any return or claim for refund
38 shall for a three year retention period described in paragraph nine of
39 this subdivision:
40 (A) retain a completed copy of such return or claim for refund, or
41 retain, on a list, the name and identification number of the taxpayer
42 for whom such return or claim was prepared, and
43 (B) make such copy or list available for inspection upon request by
44 the commissioner of taxation and finance.
45 (5) Tax return preparer defined. For purposes of this chapter, the
46 term "tax return preparer" means any person who prepares for compen-
47 sation, or who employs or engages one or more persons to prepare for
48 compensation any return or claim for refund. The preparation of a
49 substantial portion of a return or claim for refund shall be treated as
50 if it were the preparation of such return or claim for refund. Where an
51 employer and one or more employees of such employer are tax return
52 preparers with respect to the same return or claim for refund, or where
53 a partnership and one or more partners in such partnership are tax
54 return preparers with respect to the same return or claim for refund,
55 for purposes of paragraphs three and four of this subdivision, such
56 employer or such partnership shall be deemed to be the sole tax return
S. 8578 1021
1 preparer. A person shall not be a "tax return preparer" merely because
2 such person:
3 (A) furnishes typing, reproducing, or other mechanical assistance,
4 (B) prepares a return or claim for refund of the employer, or of an
5 officer or employee of the employer, by whom he or she is regularly and
6 continuously employed, or
7 (C) prepares as a fiduciary a return or claim for refund for any
8 person.
9 (6) Person defined. For purposes of this subdivision, the term
10 "person" includes an individual, corporation, including a dissolved
11 corporation, or partnership.
12 (7) Return defined. For purposes of this subdivision, the term
13 "return" shall mean any return required under this chapter.
14 (8) Claim for refund defined. For purposes of this subdivision, the
15 term "claim for refund" shall mean a claim for refund of or credit
16 against any tax imposed under this chapter, and shall include any claim
17 for refund of any credit treated as an overpayment of tax under this
18 chapter.
19 (9) Retention period defined. For purposes of this subdivision, the
20 term "retention period" shall mean:
21 (A) in the case of a tax return, the period ending the later of three
22 years after the due date of such return, without regard to extensions,
23 or three years after the date such return was presented to the taxpayer
24 for such taxpayer's signature, and
25 (B) in the case of a claim for refund, the period ending three years
26 after such claim for refund was presented to the taxpayer for such
27 taxpayer's signature.
28 (10) Mandatory electronic filing by certain tax return preparers.
29 (A)(i) If a tax return preparer prepared more than two hundred original
30 returns during the calendar year beginning on January first, two thou-
31 sand five, and if, in the calendar year beginning on January first, two
32 thousand six, such tax return preparer prepares one or more authorized
33 returns using tax software, then, for such calendar year two thousand
34 six and for each subsequent calendar year thereafter, all authorized
35 returns prepared by such tax return preparer shall be filed electron-
36 ically, in accordance with instructions prescribed by the commissioner
37 of taxation and finance.
38 (ii) If a tax return preparer prepared more than one hundred original
39 returns during any calendar year beginning on or after January first,
40 two thousand six, and if, in any succeeding calendar year such tax
41 return preparer prepares one or more authorized returns using tax soft-
42 ware, then, for such succeeding calendar year and for each subsequent
43 calendar year thereafter, all authorized returns prepared by such tax
44 return preparer shall be filed electronically, in accordance with
45 instructions prescribed by the commissioner of taxation and finance.
46 (B) For purposes of this paragraph: (i) "Electronic" means computer
47 technology; provided, however, that the commissioner of taxation and
48 finance may, in instructions, provide that use of barcode technology
49 will also satisfy the mandatory electronic filing requirements of this
50 section.
51 (ii) "Authorized return" means any return required under this article
52 which the commissioner of taxation and finance has authorized to be
53 filed electronically.
54 (iii) "Original return" means a return required under this article
55 that is filed, without regard to extensions, during the calendar year
56 for which that return is required to be filed.
S. 8578 1022
1 (iv) "Tax software" means any computer software program intended for
2 tax return preparation purposes.
3 § 11-1759 Report of federal changes, corrections or disallowances. If
4 the amount of a taxpayer's federal taxable income, total taxable amount
5 or ordinary income portion of a lump sum distribution or includible gain
6 of a trust reported on his federal income tax return for any taxable
7 year, or the amount of any claim of right adjustment, is changed or
8 corrected by the United States internal revenue service or other compe-
9 tent authority, or as the result of a renegotiation of a contract or
10 subcontract with the United States or the amount an employer is required
11 to deduct and withhold from wages for federal income tax withholding
12 purposes is changed or corrected by such service or authority or if a
13 taxpayer's claim for credit or refund of federal income tax is disal-
14 lowed in whole or in part, the taxpayer or employer shall report such
15 change or correction or disallowance within ninety days after the final
16 determination of such change, correction, renegotiation, or disallow-
17 ance, or as otherwise required by the commissioner, and shall concede
18 the accuracy of such determination or state wherein it is erroneous. The
19 allowance of a tentative carryback adjustment based upon a net operating
20 loss carryback pursuant to section sixty-four hundred eleven of the
21 internal revenue code shall be treated as a final determination for
22 purposes of this section. Any taxpayer filing an amended federal income
23 tax return and any employer filing an amended federal return of income
24 tax withheld shall also file within ninety days thereafter an amended
25 return under this chapter, and shall give such information as the
26 commissioner may require. The commissioner may by regulation prescribe
27 such exceptions to the requirements of this section as he or she deems
28 appropriate. For purposes of this section, (i) the term "taxpayer" shall
29 include a partnership having a resident partner or having any income
30 derived from New York sources, and a corporation with respect to which
31 the taxable year of such change, correction, disallowance or amendment
32 is a year with respect to which the election provided for in subsection
33 (a) of section six hundred sixty of the tax law is in effect, and (ii)
34 the term "federal income tax return" shall include the returns of income
35 required under sections six thousand thirty-one and six thousand thir-
36 ty-seven of the internal revenue code. In the case of such a corpo-
37 ration, such report shall also include any change or correction of the
38 taxes described in paragraphs two and three of subsection (f) of section
39 thirteen hundred sixty-six of the internal revenue code. Reports made
40 under this section by a partnership or corporation shall indicate the
41 portion of the change in each item of income, gain, loss or deduction,
42 and, in the case of a corporation, of each change in, or disallowance of
43 a claim for credit or refund of such tax, allocable to each partner or
44 shareholder and shall set forth such identifying information with
45 respect to such partner or shareholder as may be prescribed by the
46 commissioner.
47 § 11-1761 Change of election. Any election expressly authorized by
48 this chapter may be changed on such terms and conditions as the tax
49 commission may prescribe by regulation.
50 § 11-1762 Computation of tax where taxpayer restores substantial
51 amount held under claim of right. (a) General. If:
52 (1) an item was included in city adjusted gross income for a prior
53 taxable year, or years, because it appeared that the taxpayer had an
54 unrestricted right to such item, and
55 (2) for the current taxable year the provisions of paragraph five of
56 subsection (a) of section thirteen hundred forty-one of the internal
S. 8578 1023
1 revenue code apply to such item, then the tax imposed by this chapter
2 for the taxable year shall be an amount equal to
3 (3) the tax for the taxable year computed without regard to this
4 section, minus
5 (4) the decrease in tax under this chapter for the prior taxable year,
6 or years, which would result solely from the exclusion of such item, or
7 portion thereof, from city adjusted gross income for such prior taxable
8 year, or years.
9 (b) Special rules. If the decrease in tax ascertained under paragraph
10 four of subdivision (a) of this section exceeds the tax imposed by this
11 chapter for the taxable year, such excess shall be considered a payment
12 of tax on the last day prescribed by law for the payment of tax for the
13 taxable year, and shall be refunded or credited in the same manner as if
14 it were an overpayment for such taxable year.
15 SUBCHAPTER 4
16 WITHHOLDING OF TAX
17 § 11-1771 Requirement of withholding tax from wages. (a) General. (1)
18 Every employer maintaining an office or transacting business within this
19 city or state and making payment on and after January first, nineteen
20 hundred seventy-seven of any wages taxable under this chapter, or under
21 section two of chapter eight hundred eighty-two of the laws of nineteen
22 hundred seventy-five, as amended by chapter eight hundred eighty-six of
23 the laws of nineteen hundred seventy-five, shall deduct and withhold
24 from such wages for each payroll period a tax computed in such manner as
25 to result, so far as practicable, in withholding from the employee's
26 wages during each calendar year an amount substantially equivalent to
27 the tax reasonably estimated to be due under this chapter or such
28 section two resulting from the inclusion in the employee's city adjusted
29 gross income of his or her wages received during such calendar year.
30 The method of determining the amount to be withheld shall be prescribed
31 by regulations of the tax commission, with due regard to the city with-
32 holding exemptions of the employee and the sum of any credits allowable
33 against his or her tax. The section shall not apply to payments by the
34 United States for service in the armed forces of the United States so
35 long as the right to require deduction and withholding of tax from such
36 payments is prohibited by the laws of the United States. Service in the
37 armed forces of the United States shall have the same meaning as when
38 used in a comparable context in the laws of the United States relating
39 to withholding of city income taxes.
40 (2) The tax commission may provide, by regulations, for withholding:
41 (A) from remuneration for services performed by an employee for his or
42 her employer which does not constitute wages, and
43 (B) from remuneration for services performed by an employee for his or
44 her employer which does not constitute wages, and (B) from any other
45 type of payment, with respect to which the tax commission finds that
46 withholding would be appropriate under the provisions of this chapter,
47 if the employer and the employee, or in the case of any other type of
48 payment the person making and the person receiving the payment, agree to
49 such withholding. Such agreement shall be made in such form and manner
50 as the tax commission may by regulations provide. For purposes of this
51 chapter, remuneration or other payments with respect to which such
52 agreement is made shall be treated as if they were wages paid by an
53 employer to an employee to the extent that such remuneration is paid or
S. 8578 1024
1 other payments are made during the period for which the agreement is in
2 effect.
3 (3) The tax commission shall provide by regulation for an exemption
4 from withholding for: (i) employees under eighteen years of age, (ii)
5 employees under twenty-five years of age who are full-time students and
6 (iii) employees over sixty-five years of age, provided such employees
7 had no income tax liability in the prior year and can reasonably antic-
8 ipate none in the current year.
9 (b) Extension of withholding to certain periodic payments and gambling
10 winnings.
11 (1) For purposes of this chapter, any payment subject to withholding,
12 within the meaning of paragraph two of this subdivision, shall be treat-
13 ed as if it were wages paid by an employer to an employee.
14 (2) Payments subject to withholding. For purposes of paragraph one of
15 this subdivision, a payment subject to withholding means:
16 (A) Any supplemental unemployment compensation benefit paid to an
17 individual to the extent includible in such individual's city adjusted
18 gross income.
19 (B) Any member or employee contributions to a retirement system or
20 pension fund picked up by the employer pursuant to subdivision f of
21 section five hundred seventeen or subdivision d of section six hundred
22 thirteen of the retirement and social security law or section 13-225.1,
23 13-327.1, 13-125.1, 13-125.2 or 13-521.1 of the code of the preceding
24 municipality or subdivision nineteen of section twenty-five hundred
25 seventy-five of the education law.
26 (C) Any payment of an annuity to an individual to the extent includi-
27 ble in such individual's city adjusted gross income, if at the time the
28 payment is made a request that such annuity be subject to withholding
29 under this chapter is in effect.
30 (D) Any payment of winnings from a wager placed in a lottery conducted
31 by the division of the lottery, if the proceeds from such wager exceed
32 five thousand dollars and such proceeds are payable pursuant to a prize
33 claim made by an individual who was a resident of the city at the time
34 of the selection of the prize winning lottery ticket.
35 (F) Any amount deducted or deferred from an employee's salary under a
36 flexible benefits program established pursuant to section twenty-three
37 of the general municipal law or section one thousand two hundred ten-a
38 of the public authorities law.
39 (G) Any amount by which an employee's salary is reduced pursuant to
40 the provisions of subdivision b of section 12-126.1 and subdivision b of
41 section 12-126.2 of the code of the preceding municipality.
42 (3) Additional provisions applicable to this subdivision.
43 (A) Request for annuity withholding. A request that an annuity be
44 subject to withholding under this chapter shall be made by the payee in
45 writing to the person making the annuity payments.
46 Such a request may, notwithstanding any provision of law to the
47 contrary, be terminated by furnishing to the person making the payments
48 a written statement of termination. Such a request for withholding or
49 statement of termination shall take effect in such manner as the commis-
50 sioner of taxation and finance shall prescribe.
51 (B) Withholding on lottery winnings upon change of residence. If a
52 payee of lottery winnings subject to the provisions of subparagraph (D)
53 of paragraph two of this subdivision changes status from resident to
54 nonresident, withholding in accordance with such subparagraph shall
55 constitute other security acceptable to the commissioner of taxation and
56 finance within the meaning of paragraph four of subdivision (c) of
S. 8578 1025
1 section 11-1754 of this chapter, unless such payee elects, in such
2 manner as the commissioner of taxation and finance shall prescribe, to
3 apply the provisions of paragraph one of such subdivision (c) to the
4 proceeds, in which case withholding under this subdivision shall no
5 longer apply to such proceeds.
6 (C) Proceeds. For purposes of subparagraphs (D) and (E) of paragraph
7 two of this subdivision, proceeds from a wager shall be determined by
8 reducing the amount received by the amount of the wager.
9 (D) Taxes withheld at maximum rate. The tax withheld on any payment
10 subject to withholding under subparagraph (D) or (E) of paragraph two of
11 this subdivision shall be withheld at the highest rate of tax on city
12 taxable income, without any allowance for deductions or exemptions, in
13 effect under this chapter for the taxable year in which the payment is
14 made.
15 (E) Determination of residence. For purposes of applying the
16 provisions of subparagraphs (D) and (E) of paragraph two of this subdi-
17 vision, any payor of proceeds shall determine the residence of the payee
18 of such proceeds in accordance with regulations or instructions of the
19 commissioner of taxation and finance or, in the absence of any such
20 regulations or instructions, in accordance with the address of the payee
21 required under the provisions of paragraph six of subsection (q) of
22 section thirty-four hundred two of the internal revenue code.
23 (b) Extension of withholding to unemployment compensation benefits,
24 annuity payments, and lottery winnings.
25 (1) For purposes of this chapter:
26 (A) any supplemental unemployment compensation benefit paid to an
27 individual to the extent includible in such individual's city adjusted
28 gross income,
29 (B) any payment of an annuity to an individual to the extent includi-
30 ble in such individual's city adjusted gross income, if at the time the
31 payment is made a request that such annuity be subject to withholding
32 under this chapter is in effect, and
33 (C) any periodic payment (but only where such payment is part of a
34 series of payments extending over a period greater than one year), of
35 lottery winnings by the division of the lottery, if at the time the
36 payment is made a request that such lottery winnings be subject to with-
37 holding under this chapter is in effect, shall be treated as if it were
38 a payment of wages by an employer to an employee for a payroll period.
39 (D) any member or employee contributions to a retirement system or
40 pension fund picked up or paid by the employer for members of the
41 Manhattan and Bronx surface transportation authority pension plan and
42 treated as employer contributions in determining income tax treatment
43 under subdivision (h) of section four hundred fourteen of the Internal
44 Revenue Code.
45 (2) Request for withholding. A request that an annuity be subject to
46 withholding under this chapter shall be made by the payee in writing to
47 the person making the annuity payments, and a request that lottery
48 winnings be subject to withholding under this chapter shall be made by
49 the payee in writing to the division of the lottery, in the manner
50 prescribed by the commissioner of taxation and finance. A request that
51 an annuity be subject to withholding may, notwithstanding any provision
52 of law to the contrary, be terminated by furnishing to the person making
53 the payments a written statement of termination. A request that lottery
54 winnings be subject to withholding under this chapter shall not be revo-
55 cable while the payee is a nonresident, and shall constitute other secu-
S. 8578 1026
1 rity acceptable to the tax commission within the meaning of paragraph
2 four of subdivision (c) of section 11-1754 of this chapter.
3 Such a request for withholding or statement of termination shall take
4 effect in such manner as the commissioner of taxation and finance shall
5 provide by regulation.
6 (c) Withholding exemptions. For purposes of this section:
7 (1) The number of city withholding exemptions which an employee
8 receiving wages taxable under this chapter may claim shall not exceed
9 the number of city exemptions allowed pursuant to the provisions of
10 section 11-1716 of this chapter and such additional city withholding
11 exemptions as may be prescribed by regulations or instructions of the
12 commissioner of taxation and finance, taking into account the applicable
13 standard deduction and such other factors as he or she finds appropri-
14 ate.
15 (2) The amount of each city withholding exemption shall be the amount
16 of the city exemption allowed pursuant to the provisions of section
17 11-1716 of this chapter.
18 (3) Withholding exemption certificate. An employee shall be required
19 to file with his or her employer a withholding exemption certificate in
20 accordance with regulations or instructions prescribed by the commis-
21 sioner of taxation and finance.
22 § 11-1772 Information statement for employee. Every employer required
23 to deduct and withhold tax under this chapter from the wages of an
24 employee, or who would have been required so to deduct and withhold tax
25 if the employee had claimed no more than one withholding exemption,
26 shall furnish to each such employee in respect of the wages paid by such
27 employer to such employee during the calendar year on or before February
28 fifteenth of the succeeding year, or, if his or her employment is termi-
29 nated before the close of such calendar year, within thirty days from
30 the date on which the last payment of the wages is made, a written
31 statement as prescribed by the tax commission showing the amount of
32 wages paid by the employer to the employee, the amount deducted and
33 withheld as tax, and such other information as the tax commission shall
34 prescribe.
35 § 11-1773 Credit for tax withheld. Wages upon which tax is required
36 to be withheld shall be taxable under this chapter as if no withholding
37 were required, but any amount of tax actually deducted and withheld
38 under this chapter in any calendar year shall be deemed to have been
39 paid to the tax commission on behalf of the person from whom withheld,
40 and such person shall be credited with having paid that amount of tax
41 for the taxable year beginning in such calendar year.
42 For a taxable year of less than twelve months, the credit shall be
43 made under regulations of the tax commission.
44 § 11-1774 Employer's return and payment of withheld taxes. (a) Gener-
45 al. Every employer required to deduct and withhold tax under this chap-
46 ter shall file a withholding return and pay over to the tax commission
47 or to a depository designated by the tax commission, the taxes so
48 required to be deducted and withheld, as hereafter prescribed.
49 (1) If, after having made a payroll, an employer has been required to
50 deduct and withhold, but has not paid over, a cumulative aggregate
51 amount of seven hundred dollars or more of tax during a calendar quar-
52 ter, such employer shall file a return and pay over the tax. If an
53 employer was required to remit a cumulative aggregate amount of less
54 than fifteen thousand dollars in withholding tax during the calendar
55 year which precedes the previous calendar year, the tax shall be paid
56 over on or before the fifth business day following the date of making
S. 8578 1027
1 such a payroll. If an employer was required to remit a cumulative aggre-
2 gate amount more than or equal to fifteen thousand dollars in withhold-
3 ing tax during the calendar year which precedes the previous calendar
4 year, the tax shall be paid over on or before the third business day
5 following the date of making such a payroll. In the case of an "educa-
6 tional organization" as defined in paragraph two of subsection (a) of
7 section nine of the tax law or a "health care provider" as defined in
8 paragraph four of subsection (a) of section nine of the tax law, the tax
9 shall be paid over on or before the fifth business day following the
10 date of making such a payroll.
11 (2) If, at the close of any calendar quarter, an employer has been
12 required to deduct and withhold, but has not paid over, a cumulative
13 aggregate amount of less than seven hundred dollars of tax during such
14 calendar quarter, such employer shall pay over the tax with the quarter-
15 ly combined withholding, wage reporting and unemployment insurance
16 return required to be filed for such quarter by paragraph four of this
17 subdivision, on or before the last date prescribed by such paragraph for
18 filing such return.
19 (3) If an employer makes more than one payroll per week, then such
20 employer shall determine the applicability of the rules described in
21 paragraphs one and two of this subdivision measured by the last payroll
22 made within the week by such employer; provided, however, that in any
23 week in which the end of a quarter occurs between the making of payrolls
24 by an employer, any tax required to be deducted and withheld in a
25 payroll or payrolls made during such week prior to or on the end of the
26 quarter shall be paid over. If an employer was required to remit a cumu-
27 lative aggregate amount of less than fifteen thousand dollars in with-
28 holding tax during the calendar year preceding the previous calendar
29 year, the tax shall be paid over on or before the fifth business day
30 following the date of making the last payroll in such quarter. If an
31 employer was required to remit a cumulative aggregate amount more than
32 or equal to fifteen thousand dollars in withholding tax during the
33 calendar year preceding the previous calendar year, the tax shall be
34 paid over on or before the third business day following the date of
35 making the last payroll in such quarter. In the case of an "educational
36 organization" as defined in paragraph two of subsection (a) of section
37 nine of the tax law or a "health care provider" as defined in paragraph
38 four of subsection (a) of section nine of the tax law, the tax shall be
39 paid over on or before the fifth business day following the date of
40 making such a payroll. For purposes of this paragraph, the term "week"
41 shall mean the period Sunday through Saturday.
42 (4)(A) All employers described in paragraph one of subdivision (a) of
43 section 11-1771 of this subchapter, including those whose wages paid are
44 not sufficient to require the withholding of tax from the wages of any
45 of their employees, all employers required to provide the wage reporting
46 information for the employees described in subdivision one of section
47 one hundred seventy-one-a of the tax law, and all employers liable for
48 unemployment insurance contributions or for payments in lieu of such
49 contributions pursuant to article eighteen of the labor law, shall file
50 a quarterly combined withholding, wage reporting and unemployment insur-
51 ance return with the department of taxation and finance detailing the
52 preceding calendar quarter's withholding tax transactions, such quar-
53 ter's wage reporting information, such quarter's unemployment insurance
54 contributions, and such other related information as the commissioner of
55 taxation and finance or the commissioner of labor, as applicable, may
56 prescribe. In addition, the return covering the last calendar quarter of
S. 8578 1028
1 each year shall also include withholding reconciliation information for
2 such calendar year. Such returns shall be filed no later than the last
3 day of the month following the last day of each calendar quarter;
4 provided, however, that an employer may provide the wage reporting
5 information covering the last calendar quarter of each year, and the
6 withholding reconciliation information for such year no later than
7 February twenty-eighth of the succeeding year.
8 (B) An employer shall, at the time prescribed by subparagraph (A) of
9 this paragraph for filing each quarterly combined withholding, wage
10 reporting and unemployment insurance return, pay over, in a single
11 remittance, the unemployment insurance contributions and aggregate with-
12 holding taxes required to be paid over with such return.
13 Notwithstanding any provision of law to the contrary, an overpayment
14 of unemployment insurance contributions or of aggregate withholding
15 taxes made by an employer with the quarterly combined withholding, wage
16 reporting and unemployment insurance return for a calendar quarter may
17 be only credited by such employer against such employer's liability for
18 unemployment insurance contributions or aggregate withholding taxes,
19 respectively.
20 (5) The tax commission may, if it believes such action necessary for
21 the protection of the revenues, require any employer to make such return
22 and pay to it the tax deducted and withheld at any time, or from time to
23 time.
24 (6) "Aggregate amount" as used in paragraphs one, two and three of
25 this subdivision means the aggregate of the aggregate amounts of New
26 York state personal income tax, city personal income tax on residents
27 and city earnings tax on nonresidents authorized to be deducted and
28 withheld.
29 (b) Deposit in trust for tax commission. Whenever any employer fails
30 to collect, truthfully account for, pay over the tax, or make returns of
31 the tax as required in this section, the tax commission may serve a
32 notice requiring such employer to collect the taxes which become collec-
33 tible after service of such notice, to deposit such taxes in a bank
34 approved by the tax commission, in a separate account, in trust for and
35 payable to the tax commission, and to keep the amount of such tax in
36 such account until payment over to the tax commission. Such notice
37 shall remain in effect until a notice of cancellation is served by the
38 tax commission.
39 § 11-1775 Employer's liability for withheld taxes. Every employer
40 required to deduct and withhold tax under this chapter is hereby made
41 liable for such tax. For purposes of assessment and collection, any
42 amount required to be withheld and paid over to the tax commission, and
43 any additions to tax, penalties and interest with respect thereto, shall
44 be considered the tax of the employer. Any amount of tax actually
45 deducted and withheld under this chapter shall be held to be a special
46 fund in trust for the tax commission. No employee shall have any right
47 of action against his or her employer in respect to any moneys deducted
48 and withheld from his or her wages and paid over to the tax commission
49 in compliance or in intended compliance with this chapter.
50 § 11-1776 Employer's failure to withhold. If an employer fails to
51 deduct and withhold tax as required, and thereafter the tax against
52 which such tax may be credited is paid, the tax so required to be
53 deducted and withheld shall not be collected from the employer, but the
54 employer shall not be relieved from liability for any penalties, inter-
55 est, or additions to the tax otherwise applicable in respect of such
56 failure to deduct and withhold.
S. 8578 1029
1 § 11-1777 Designation of third parties to perform acts required of
2 employers. In case a fiduciary, agent, or other person has the control,
3 receipt, custody, or disposal of, or pays the wages of an employee or
4 group of employees, employed by one or more employers, the tax commis-
5 sion, under regulations promulgated by it, is authorized to designate
6 such fiduciary, agent, or other person to perform such acts as are
7 required of employers under this chapter and as the tax commission may
8 specify. Except as may be otherwise prescribed by the tax commission,
9 all provisions of law, including penalties, applicable in respect of an
10 employer shall be applicable to a fiduciary, agent, or other person so
11 designated but, except as so provided, the employer for whom such fidu-
12 ciary, agent, or other person acts shall remain subject to the
13 provisions of law, including penalties, applicable in respect of employ-
14 ers.
15 § 11-1778 Liability of third parties paying or providing for wages.
16 (a) Direct payment by third party. If a lender, surety or other person,
17 who is not an employer with respect to an employee or group of employ-
18 ees, pays wages directly to such an employee or group of employees,
19 employed by one or more employers, or to an agent on behalf of such
20 employee or employees, such lender, surety or other person shall be
21 liable for the amount of taxes, together with interest, required to be
22 deducted and withheld from such wages by the employer.
23 (b) Funds supplied to employer by third parties. If a lender, surety
24 or other person supplies funds to or for the account of an employer for
25 the specific purpose of paying wages of the employees of such employer,
26 with actual notice or knowledge that such employer does not intend to or
27 will not be able to make timely payment or deposit of the amounts of tax
28 required by this chapter to be deducted and withheld by such employer
29 from such wages, such lender, surety or other person shall be liable for
30 the amount of the taxes, together with interest, which are not paid over
31 to the tax commission by such employer with respect to such wages.
32 However, the liability of such lender, surety or other person shall be
33 limited to an amount equal to twenty-five percent of the amount so
34 supplied to or for the account of such employer for such purpose.
35 (c) Effect of payment. Any amounts paid to the tax commission pursuant
36 to this section shall be credited against the liability of the employer.
37 SUBCHAPTER 5
38 PROCEDURE AND ADMINISTRATION
39 § 11-1781 Notice of deficiency. (a) General. If upon examination of a
40 taxpayer's return under this chapter the tax commission determines that
41 there is a deficiency of income tax, it may mail a notice of deficiency
42 to the taxpayer. If a taxpayer fails to file an income tax return
43 required under this chapter, the tax commission is authorized to esti-
44 mate the taxpayer's city taxable income and tax thereon, from any infor-
45 mation in its possession, and to mail a notice of deficiency to the
46 taxpayer. A notice of deficiency shall be mailed by certified or regis-
47 tered mail to the taxpayer at his or her last known address in or out of
48 this state. If a husband and wife are jointly liable for tax, a notice
49 of deficiency may be a single joint notice, except that if the tax
50 commission has been notified by either spouse that separate residences
51 have been established, then, in lieu of the single joint notice, a
52 duplicate original of the joint notice shall be mailed to each spouse at
53 his or her last known address in or out of this state. If the taxpayer
54 is deceased or under a legal disability, a notice of deficiency may be
55 mailed to his or her last known address in or out of this state, unless
S. 8578 1030
1 the tax commission has received notice of the existence of a fiduciary
2 relationship with respect to the taxpayer.
3 (b) Notice of deficiency as assessment. After ninety days from the
4 mailing of a notice of deficiency, such notice shall be an assessment of
5 the amount of tax specified in such notice, together with the interest,
6 additions to tax and penalties stated in such notice, except only for
7 any such tax or other amounts as to which the taxpayer has within such
8 ninety day period filed with the tax commission a petition under section
9 11-1789 of this subchapter. If the notice of deficiency is addressed to
10 a person outside of the United States, such period shall be one hundred
11 fifty days instead of ninety days.
12 (c) Restrictions on assessment and levy. No assessment of a deficiency
13 in tax and no levy or proceeding in court for its collection shall be
14 made, begun or prosecuted, except as otherwise provided in section
15 11-1794 of this subchapter, until a notice of deficiency has been mailed
16 to the taxpayer, nor until the expiration of the time for filing a peti-
17 tion contesting such notice, nor, if a petition with respect to the
18 taxable year has been filed with the tax commission, until the decision
19 of the tax commission has become final. For exception in the case of
20 judicial review of the decision of the tax commission, see subdivision
21 (c) of section 11-1790 of this subchapter.
22 (d) Exceptions for mathematical errors. If a mathematical error
23 appears on a return, including an overstatement of the credit for income
24 tax withheld at the source, or of the amount paid as estimated income
25 tax, the tax commission shall notify the taxpayer that an amount of tax
26 in excess of that shown upon the return is due, and that such excess has
27 been assessed. Such notice shall not be considered as a notice of defi-
28 ciency for the purposes of this section, subdivision (f) of section
29 11-1787 of this subchapter, limiting credits or refunds after petition
30 to the tax commission, or subdivision (b) of section 11-1789 of this
31 subchapter, authorizing the filing of a petition with the tax commission
32 based on a notice of deficiency, nor shall such assessment or collection
33 be prohibited by the provisions of subdivision (c) of this section.
34 (e) Exceptions where federal changes, corrections or disallowances are
35 not reported. (1) If the taxpayer or employer fails to comply with
36 section 11-1759 of this chapter, instead of the mode and time of assess-
37 ment provided for in subdivision (b) of this section, the tax commission
38 may assess a deficiency based upon such federal change, correction or
39 disallowance by mailing to the taxpayer a notice of additional tax due
40 specifying the amount of the deficiency, and such deficiency, together
41 with the interest, additions to tax and penalties stated in such notice,
42 shall be deemed assessed on the date such notice is mailed unless within
43 thirty days after the mailing of such notice a report of the federal
44 change, correction or disallowance or an amended return, where such
45 return was required by section 11-1759 of this chapter, is filed accom-
46 panied by a statement showing wherein such federal determination and
47 such notice of additional tax due are erroneous.
48 (2) Such notice shall not be considered as a notice of deficiency for
49 the purposes of this section, subdivision (f) of section 11-1787 of this
50 subchapter, limiting credits or refunds after petition to the tax
51 commission, or subdivision (b) of section 11-1789 of this subchapter,
52 authorizing the filing of a petition with the tax commission based on a
53 notice of deficiency, nor shall such assessment or the collection there-
54 of be prohibited by the provisions of subdivision (c) of this section.
55 (3) If a husband and wife are jointly liable for tax, a notice of
56 additional tax due may be a single joint notice, except that if the tax
S. 8578 1031
1 commission has been notified by either spouse that separate residences
2 have been established, then, in lieu of the joint notice, a duplicate
3 original of the joint notice shall be mailed to each spouse at his or
4 her last known address in or out of this state. If the taxpayer is
5 deceased or under a legal disability, a notice of additional tax due may
6 be mailed to his or her last known address in or out of this state,
7 unless the tax commission has received notice of the existence of a
8 fiduciary relationship with respect to the taxpayer.
9 (f) Waiver of restrictions. The taxpayer shall at any time, whether or
10 not a notice of deficiency has been issued, have the right to waive the
11 restrictions on assessment and collection of the whole or any part of
12 the deficiency by a signed notice in writing filed with the tax commis-
13 sion.
14 (g) Deficiency defined. For purposes of this chapter, a deficiency
15 means the amount of the tax imposed by this chapter, less (i) the amount
16 shown as the tax upon the taxpayer's return, whether the return was made
17 or the tax computed by such taxpayer or by the tax commission, and less
18 (ii) the amounts previously assessed, or collected without assessment,
19 as a deficiency and plus (iii) the amount of any rebates. For the
20 purpose of this definition, the tax imposed by this chapter and the tax
21 shown on the return shall both be determined without regard to payments
22 on account of estimated tax or the credit for withholding tax; and a
23 rebate means so much of an abatement, credit, refund or other repayment,
24 whether or not erroneous, made on the ground that the amounts entering
25 into the definition of a deficiency showed a balance in favor of the
26 taxpayer.
27 § 11-1782 Assessment. (a) Assessment date. The amount of tax which a
28 return shows to be due, or the amount of tax which a return would have
29 shown to be due but for a mathematical error, shall be deemed to be
30 assessed on the date of filing of the return, including any amended
31 return showing an increase of tax. In the case of a return properly
32 filed without computation of tax, the tax computed by the tax commission
33 shall be deemed to be assessed on the date on which payment is due. If
34 a notice of deficiency has been mailed, the amount of the deficiency
35 shall be deemed to be assessed on the date specified in subdivision (b)
36 of section 11-1781 of this subchapter if no petition to the tax commis-
37 sion is filed, or if a petition is filed, then upon the date when a
38 decision of the tax commission establishing the amount of the deficiency
39 becomes final. If an amended return or report filed pursuant to section
40 11-1759 of this chapter concedes the accuracy of a federal change or
41 correction, any deficiency in tax under this chapter resulting therefrom
42 shall be deemed to be assessed on the date of filing such report or
43 amended return, and such assessment shall be timely notwithstanding
44 section 11-1783 of this subchapter. If a notice of additional tax due,
45 as prescribed in subdivision (e) of section 11-1781 of this subchapter,
46 has been mailed, the amount of the deficiency shall be deemed to be
47 assessed on the date specified in such subdivision unless within thirty
48 days after the mailing of such notice a report of the federal change or
49 correction or an amended return, where such return was required by
50 section 11-1759 of this chapter, is filed accompanied by a statement
51 showing wherein such federal determination and such notice of additional
52 tax due are erroneous. Any amount paid as a tax or in respect of a tax,
53 other than amounts withheld at the source or paid as estimated income
54 tax, shall be deemed to be assessed upon the date of receipt of payment,
55 notwithstanding any other provisions.
S. 8578 1032
1 (b) Other assessment powers. If the mode or time for the assessment of
2 any tax under this chapter, including interest, additions to tax and
3 assessable penalties, is not otherwise provided for, the tax commission
4 may establish the same by regulations.
5 (c) Estimated income tax. No unpaid amount of estimated tax shall be
6 assessed.
7 (d) Omission of income, item of tax preference, total taxable amount
8 or ordinary income portion of a lump sum distribution on return. The tax
9 may be assessed at any time within six years after the return was filed
10 if: (1) an individual omits from his city adjusted gross income, the
11 sum of his items of tax preference, or the total taxable amount or ordi-
12 nary income portion of a lump sum distribution an amount properly inclu-
13 dible therein which is in excess of twenty-five percent of the amount of
14 city adjusted gross income, the sum of the items of tax preference or
15 the total taxable amount or ordinary income portion of a lump sum
16 distribution stated in the return, or (2) an estate or trust omits from
17 its city adjusted gross income, the sum of its items of tax preference,
18 or the total taxable amount or ordinary income portion of a lump sum
19 distribution an amount properly includible therein which is in excess of
20 twenty-five percent of the amount stated in the return of city adjusted
21 gross income, or the sum of the items of tax preference, or the total
22 taxable amount or ordinary income portion of a lump sum distribution,
23 respectively. For purposes of this paragraph, city adjusted gross income
24 means New York adjusted gross income as determined under paragraph four
25 of subsection (e) of section six hundred one of the tax law.
26 For purposes of this subdivision there shall not be taken into account
27 any amount which is omitted in the return if such amount is disclosed in
28 the return, or in a statement attached to the return, in a manner
29 adequate to apprise the commissioner of the nature and amount of the
30 item of income, tax preference, the total taxable amount or ordinary
31 income portion of a lump sum distribution.
32 (e) Cross reference. For assessment in case of jeopardy, see section
33 11-1794 of this subchapter.
34 § 11-1783 Limitations on assessment. (a) General. Except as otherwise
35 provided in this section, any tax under this chapter shall be assessed
36 within three years after the return was filed, whether or not such
37 return was filed on or after the date prescribed.
38 (b) Time return deemed filed.
39 (1) Early return. For purposes of this section a return of income tax,
40 except withholding tax, filed before the last day prescribed by law or
41 by regulations promulgated pursuant to law for the filing thereof, shall
42 be deemed to be filed on such last day.
43 (2) Return of withholding tax. For purposes of this section, if a
44 return of withholding tax for any period ending with or within a calen-
45 dar year is filed before April fifteenth of the succeeding calendar
46 year, such return shall be deemed to be filed on April fifteenth of such
47 succeeding calendar year.
48 (c) Exceptions.
49 (1) Assessment at any time. The tax may be assessed at any time if:
50 (A) no return is filed,
51 (B) a false or fraudulent return is filed with intent to evade tax, or
52 (C) the taxpayer or employer fails to comply with section 11-1759 of
53 this chapter.
54 (2) Extension by agreement. Where, before the expiration of the time
55 prescribed in this section for the assessment of tax, both the tax
56 commission and the taxpayer have consented in writing to its assessment
S. 8578 1033
1 after such time, the tax may be assessed at any time prior to the expi-
2 ration of the period agreed upon. The period so agreed upon may be
3 extended by subsequent agreements in writing made before the expiration
4 of the period previously agreed upon.
5 (3) Report of federal changes, corrections or disallowances. If the
6 taxpayer or employer complies with section 11-1759 of this chapter, the
7 assessment, if not deemed to have been made upon the filing of the
8 report or amended return, may be made at any time within two years after
9 such report or amended return was filed. The amount of such assessment
10 of tax shall not exceed the amount of the increase in city tax attribut-
11 able to such federal change or correction. The provisions of this para-
12 graph shall not affect the time within which or the amount for which an
13 assessment may otherwise be made.
14 (4) Deficiency attributable to net operating loss carryback. If a
15 deficiency is attributable to the application to the taxpayer of a net
16 operating loss carryback, it may be assessed at any time that a defi-
17 ciency for the taxable year of the loss may be assessed.
18 (5) Recovery of erroneous refund. An erroneous refund shall be consid-
19 ered an underpayment of tax on the date made, and an assessment of a
20 deficiency arising out of an erroneous refund may be made at any time
21 within two years from the making of the refund, except that the assess-
22 ment may be made within five years from the making of the refund if it
23 appears that any part of the refund was induced by fraud or misrepresen-
24 tation of a material fact.
25 (6) Request for prompt assessment. If a return is required for a dece-
26 dent or for a decedent's estate during the period of administration, the
27 tax shall be assessed within eighteen months after written request
28 therefor, made after the return is filed, by the executor, administrator
29 or other person representing the estate of such decedent, but not more
30 than three years after the return was filed, except as otherwise
31 provided in this subdivision and subdivision (d) of this section.
32 (7) Report on use of certain property. Under the circumstances
33 described in paragraph two of subdivision (g) of section 11-1712 of this
34 chapter, the tax may be assessed within three years after the filing of
35 a return reporting that property has been used for purposes other than
36 research and development to a greater extent than originally reported.
37 (8) Report concerning waste treatment facility, air pollution control
38 facility or eligible business facility. Under the circumstances
39 described in paragraph three of subdivision (h) of section 11-1712 of
40 this chapter, the tax may be assessed within three years after filing of
41 the return containing the information required by such paragraph, or, if
42 a certificate of compliance in respect to an air pollution control
43 facility shall be revoked, within three years after the tax commission
44 shall receive notice of such revocation from the taxpayer or as required
45 by section 19-0309 of the environmental conservation law, whichever
46 notice is received earlier.
47 (9) Except as otherwise provided in paragraph three of this subdivi-
48 sion, or as otherwise provided in this section where a longer period of
49 time may apply, if a taxpayer files an amended return, an assessment of
50 tax, if not deemed to have been made upon the filing of the amended
51 return, including recovery of a previously paid refund, attributable to
52 a change or correction on the amended return from a prior return may be
53 made at any time within one year after such amended return is filed.
54 (d) Omission of income, total taxable amount or ordinary income
55 portion of a lump sum distribution on return. The tax may be assessed at
56 any time within six years after the return was filed if:
S. 8578 1034
1 (1) an individual omits from his city adjusted gross income the total
2 taxable amount or ordinary income portion of a lump sum distribution an
3 amount properly includible therein which is in excess of twenty-five
4 percent of the amount of city adjusted gross income or the total taxable
5 amount or ordinary income portion of a lump sum distribution stated in
6 the return, or
7 (2) an estate or trust omits from its city adjusted gross income, or
8 the total taxable amount or ordinary income portion of a lump sum
9 distribution an amount properly includible therein which is in excess of
10 twenty-five percent of the amount stated in the return of city adjusted
11 gross income, or the total taxable amount or ordinary income portion of
12 a lump sum distribution, respectively. For purposes of this paragraph,
13 city adjusted gross income means New York adjusted gross income as
14 determined under paragraph four of subsection (e) of section six hundred
15 one of the tax law.
16 For purposes of this subdivision there shall not be taken into account
17 any amount which is omitted in the return if such amount is disclosed in
18 the return, or in a statement attached to the return, in a manner
19 adequate to apprise the commissioner of the nature and amount of the
20 item of income, the total taxable amount or ordinary income portion of a
21 lump sum distribution.
22 (e) Suspension of running of period of limitation. The running of the
23 period of limitations on assessment or collection of tax or other
24 amount, or of a transferee's liability, shall, after the mailing of a
25 notice of deficiency, be suspended for the period during which the tax
26 commission is prohibited under subdivision (c) of section 11-1781 of
27 this subchapter from making the assessment or from collecting by levy.
28 § 11-1784 Interest on underpayment. (a) General. If any amount of
29 income tax is not paid on or before the last date prescribed in this
30 chapter for payment, interest on such amount at the underpayment rate
31 set by the commissioner of taxation and finance pursuant to section
32 11-1797 of this subchapter, or if no rate is set, at the rate of seven
33 and one-half percent per annum shall be paid for the period from such
34 last date to the date paid, whether or not any extension of time for
35 payment was granted. Interest under this subdivision shall not be paid
36 if the amount thereof is less than one dollar. If the time for filing of
37 a return of tax withheld by an employer is extended, the employer shall
38 pay interest for the period for which the extension is granted and may
39 not charge such interest to the employee.
40 (b) Exception as to estimated tax. This section shall not apply to any
41 failure to pay estimated tax.
42 (c) Exception for mathematical error. No interest shall be imposed on
43 any underpayment of tax due solely to mathematical error if the taxpayer
44 files a return within the time prescribed in this chapter, including any
45 extension of time, and pays the amount of underpayment within three
46 months after the due date of such return, as it may be extended.
47 (d) Suspension of interest on deficiencies. If a waiver of
48 restrictions on assessment of a deficiency has been filed by the taxpay-
49 er, and if notice and demand by the tax commission for payment of such
50 deficiency is not made within thirty days after the filing of such waiv-
51 er, interest shall not be imposed on such deficiency for the period
52 beginning immediately after such thirtieth day and ending with the date
53 of notice and demand.
54 (e) Tax reduced by carryback. If the amount of tax for any taxable
55 year is reduced by reason of a carryback of a net operating loss, such
56 reduction in tax shall not affect the computation of interest under this
S. 8578 1035
1 section for the period ending with the filing date for the taxable year
2 in which the net operating loss arises. Such filing date shall be deter-
3 mined without regard to extensions of time to file.
4 (f) Interest treated as tax. Interest under this section shall be paid
5 upon notice and demand and shall be assessed, collected and paid in the
6 same manner as income tax. Any reference in this chapter to the tax
7 imposed by this chapter shall be deemed also to refer to interest
8 imposed by this section on such tax.
9 (g) Interest on penalties or additions to tax. Interest shall be
10 imposed under subdivision (a) of this section in respect of any assessa-
11 ble penalty or addition to tax only if such assessable penalty or addi-
12 tion to tax is not paid within twenty-one calendar days from the date of
13 the notice and demand therefor under subdivision (b) of section 11-1792
14 of this subchapter, ten business days if the amount for which such
15 notice and demand is made equals or exceeds one hundred thousand
16 dollars, and in such case interest shall be imposed only for the period
17 from such date of the notice and demand to the date of payment.
18 (h) Payment within specified period after notice and demand. If notice
19 and demand is made for payment of any amount under subdivision (b) of
20 section 11-1792 of this subchapter, and if such amount is paid within
21 twenty-one calendar days, ten business days if the amount for which such
22 notice and demand is made equals or exceeds one hundred thousand
23 dollars, after the date of such notice and demand, interest under this
24 section on the amount so paid shall not be imposed for the period after
25 the date of such notice and demand.
26 (i) Limitation on assessment and collection. Interest prescribed under
27 this section may be assessed and collected, at any time during the peri-
28 od within which the tax or other amount to which such interest relates
29 may be assessed and collected, respectively.
30 (j) Interest on erroneous refund. Any portion of tax or other amount
31 which has been erroneously refunded, and which is recoverable by the
32 commissioner of taxation and finance, shall bear interest at the under-
33 payment rate set by such commissioner pursuant to section 11-1797 of
34 this subchapter, or if no rate is set, at the rate of seven and one-half
35 percent per annum from the date of the payment of the refund, but only
36 if it appears that any part of the refund was induced by fraud or a
37 misrepresentation of a material fact.
38 (k) Satisfaction by credits. If any portion of a tax is satisfied by
39 credit of an overpayment, then no interest shall be imposed under this
40 section on the portion of the tax so satisfied for any period during
41 which, if the credit had not been made, interest would have been allow-
42 able with respect to such overpayment.
43 § 11-1785 Additions to tax and civil penalties. (a) (1) Failure to
44 file tax return. (A) In case of failure to file a tax return under this
45 chapter on or before the prescribed date, determined with regard to any
46 extension of time for filing, unless it is shown that such failure is
47 due to reasonable cause and not due to willful neglect, there shall be
48 added to the amount required to be shown as tax on such return five
49 percent of the amount of such tax if the failure is for not more than
50 one month, with an additional five percent for each additional month or
51 fraction thereof during which such failure continues, not exceeding
52 twenty-five percent in the aggregate.
53 (B) In the case of a failure to file a return of tax within sixty days
54 of the date prescribed for filing of such return, determined with regard
55 to any extension of time for filing, unless it is shown that such fail-
56 ure is due to reasonable cause and not due to willful neglect, the addi-
S. 8578 1036
1 tion to tax hereunder shall not be less than the lesser of one hundred
2 dollars or one hundred percent of the amount required to be shown as tax
3 on such return.
4 (C) For purposes of this paragraph, the amount of tax required to be
5 shown on the return shall be reduced by the amount of any part of the
6 tax which is paid on or before the date prescribed for payment of the
7 tax and by the amount of any credit against the tax which may be claimed
8 upon the return.
9 (2) Failure to pay tax shown on return. In case of failure to pay the
10 amounts shown as tax on any return required to be filed under this chap-
11 ter on or before the prescribed date, determined with regard to any
12 extension of time for payment, unless it is shown that such failure is
13 due to reasonable cause and not due to willful neglect, there shall be
14 added to the amount shown as tax on such return one-half of one percent
15 of the amount of such tax if the failure is not for more than one month,
16 with an additional one-half of one percent for each additional month or
17 fraction thereof during which such failure continues, not exceeding
18 twenty-five percent in the aggregate. For the purpose of computing the
19 addition for any month, the amount of tax shown on the return shall be
20 reduced by the amount of any part of the tax which is paid on or before
21 the beginning of such month and by the amount of any credit against the
22 tax which may be claimed upon the return. If the amount of tax required
23 to be shown on a return is less than the amount shown as tax on such
24 return, this paragraph shall be applied by substituting such lower
25 amount.
26 (3) Failure to pay tax required to be shown on return. In case of
27 failure to pay any amount in respect of any tax required to be shown on
28 a return required to be filed under this chapter which is not so shown,
29 including an assessment made pursuant to subdivision (a) of section
30 11-1782 of this subchapter, within twenty-one calendar days of the date
31 of a notice and demand therefor, ten business days if the amount for
32 which such notice and demand is made equals or exceeds one hundred thou-
33 sand dollars, unless it is shown that such failure is due to reasonable
34 cause and not due to willful neglect, there shall be added to the amount
35 of tax stated in such notice and demand one-half of one percent of such
36 tax if the failure is not for more than one month, with an additional
37 one-half of one percent for each additional month or fraction thereof
38 during which such failure continues, not exceeding twenty-five percent
39 in the aggregate. For the purpose of computing the addition for any
40 month, the amount of tax stated in the notice and demand shall be
41 reduced by the amount of any part of the tax which is paid before the
42 beginning of such month.
43 (4) Limitations on additions. (A) With respect to any return, the
44 amount of the addition under paragraph one of this subdivision shall be
45 reduced by the amount of the addition under paragraph two of this subdi-
46 vision for any month to which an addition applies under both paragraphs
47 one and two of this subdivision. In any case described in subparagraph
48 (B) of such paragraph one of this subdivision, the amount of the addi-
49 tion under such paragraph one shall not be reduced below the amount
50 provided in such subparagraph.
51 (B) With respect to any return, the maximum amount of the addition
52 permitted under paragraph three of this subdivision shall be reduced by
53 the amount of the addition under paragraph one of this subdivision,
54 determined without regard to subparagraph (B) of such paragraph, which
55 is attributable to the tax for which the notice and demand is made and
56 which is not paid within ten days of such notice and demand.
S. 8578 1037
1 (b) Deficiency due to negligence. (1) If any part of a deficiency is
2 due to negligence or intentional disregard of this chapter or rules or
3 regulations established pursuant to such chapter, but without intent to
4 defraud, there shall be added to the tax an amount equal to five percent
5 of the deficiency.
6 (2) There shall be added to the tax, in addition to the amount deter-
7 mined under paragraph one of this subdivision, an amount equal to fifty
8 percent of the interest payable under section 11-1784 of this subchapter
9 with respect to the portion of the underpayment described in such para-
10 graph one which is attributable to the negligence or intentional disre-
11 gard referred to in such paragraph, for the period beginning on the last
12 date prescribed by law for payment of such underpayment, determined
13 without regard to any extension, and ending on the date of the assess-
14 ment of the tax, or, if earlier, the date of the payment of the tax.
15 (3) If any payment is shown on a return made by a payor with respect
16 to dividends, patronage dividends and interest under subsection (a) of
17 section six thousand forty-two, subsection (a) of section six thousand
18 forty-four or subsection (a) of section six thousand forty-nine of the
19 internal revenue code, respectively, and the payee fails to include any
20 portion of such payment in city adjusted gross income, any portion of an
21 underpayment attributable to such failure shall be treated, for purposes
22 of this subdivision, as due to negligence in the absence of clear and
23 convincing evidence to the contrary. If any penalty is imposed under
24 this subdivision by reason of this paragraph, the amount of the penalty
25 imposed by paragraph one of this subdivision shall be five percent of
26 the portion of the underpayment which is attributable to the failure
27 described in this paragraph.
28 (c) Failure by individual to pay estimated income tax. (1) Addition
29 to the tax. Except as otherwise provided in this subdivision and subdi-
30 vision (d) of this section, in the case of any underpayment of estimated
31 tax by an individual, there shall be added to the tax under this chapter
32 for the taxable year an amount determined by applying the underpayment
33 rate established under section 11-1797 of this subchapter, or if no rate
34 is set, at the rate of seven and one-half percent per annum, to the
35 amount of the underpayment for the period of the underpayment. Such
36 period shall run from the due date for the required installment to the
37 earlier of the fifteenth day of the fourth month following the close of
38 the taxable year or, with respect to any portion of the underpayment,
39 the date on which such portion is paid. For purposes of determining such
40 date, a payment of estimated tax shall be credited against unpaid
41 required installments in the order in which such installments are
42 required to be paid. There shall be four required installments for each
43 taxable year, due on April fifteenth, June fifteenth and September
44 fifteenth of such taxable year and on January fifteenth of the following
45 taxable year.
46 (2) Amount of underpayment. For purposes of paragraph one of this
47 subdivision, the amount of the underpayment shall be the excess of the
48 required installment over the amount, if any, of the installment paid on
49 or before the due date for the installment.
50 (3) Required installment. (A) Except as provided in paragraph four of
51 this subdivision, the amount of any required installment shall be twen-
52 ty-five percent of the required annual payment.
53 (B) The required annual payment is the lesser of
54 (i) ninety percent of the tax shown on the return for the taxable
55 year, or, if no return is filed, ninety percent of the tax for such
56 year, or
S. 8578 1038
1 (ii) one hundred percent of the tax shown on the return of the indi-
2 vidual for the preceding taxable year. Provided, however, that the tax
3 shown on such return for taxable years beginning in two thousand eight
4 shall be calculated as if paragraph three of subdivision (f) of section
5 11-1715 of this chapter was in effect for taxable years beginning in two
6 thousand eight. Provided, however, that the tax shown on such return for
7 taxable years beginning in two thousand nine shall be calculated as if
8 paragraph two of subdivision (g) of section 11-1715 of this chapter was
9 in effect for taxable years beginning in two thousand nine.
10 Clause (ii) of this subparagraph shall not apply if the preceding
11 taxable year was not a taxable year of twelve months or if the individ-
12 ual did not file a return for such preceding taxable year.
13 (C) Limitation on use of preceding year's tax.
14 (i) General. If the city adjusted gross income shown on the return of
15 the individual for the preceding taxable year exceeds one hundred fifty
16 thousand dollars, clause (ii) of subparagraph (B) of this paragraph
17 shall be applied by substituting "one hundred ten percent" for "one
18 hundred percent".
19 (ii) Separate returns. In the case of a husband and wife who file
20 separate returns pursuant to subdivision (b) of section 11-1751 of this
21 chapter for the taxable year for which the amount of the installment is
22 being determined, clause (i) of this subparagraph shall be applied by
23 substituting "seventy-five thousand dollars" for "one hundred fifty
24 thousand dollars".
25 (4) Annualized income installment. (A) In general. In the case of
26 any required installment, if the individual establishes that the annual-
27 ized income installment determined under subparagraph (B) of this para-
28 graph is less than the amount determined under paragraph three of this
29 subdivision, the annualized income installment shall be the required
30 installment. Any reduction in a required installment resulting from the
31 application of this subparagraph shall be recaptured by increasing the
32 amount of the next required installment determined under paragraph three
33 of this subdivision by the amount of such reduction, and by increasing
34 successive required installments as necessary to effect full recapture.
35 (B) Determination of annualized income installment. In the case of
36 any required installment, the annualized income installment is the
37 excess, if any, of an amount equal to the applicable percentage of the
38 tax for the taxable year computed by placing on an annualized basis the
39 taxable income for months in the taxable year ending before the due date
40 for the installment, over the aggregate amount of any prior required
41 installments for the taxable year. The applicable percentage of the tax
42 shall be twenty-two and one-half percent in the case of the first
43 installment, forty-five percent in the case of the second installment,
44 sixty-seven and one-half percent in the case of the third installment
45 and ninety percent in the case of the fourth installment, and shall be
46 computed without regard to any increase in the rates applicable to the
47 taxable year unless such increase was enacted at least thirty days prior
48 to the due date of the installment.
49 (5) Definitions and special rules. (A) Definition of the term tax
50 and application of credits against tax. For purposes of this subdivi-
51 sion and subdivision (d) of this section, the term "tax" means the tax
52 imposed under this chapter minus the credits against tax allowed under
53 this chapter, other than the credit under section 11-1773 of this chap-
54 ter, relating to tax withheld on wages. The credit allowed under
55 section 11-1773 of this chapter for the taxable year shall be deemed a
56 payment of estimated tax, and an equal part of such amount shall be
S. 8578 1039
1 deemed paid on each installment due date for such taxable year, unless
2 the taxpayer establishes the dates on which all amounts were actually
3 withheld, in which case the amounts so withheld shall be deemed payments
4 of estimated tax on the dates on which such amounts were actually with-
5 held.
6 (B) Special rule where return filed on or before January thirty-first.
7 If, on or before January thirty-first of the following taxable year,
8 the taxpayer files a return for the taxable year and pays in full the
9 amount computed on the return as payable, then no addition to tax shall
10 be imposed under paragraph one of this subdivision with respect to any
11 underpayment of the fourth required installment for the taxable year.
12 (C) Special rules for farmers and fishermen. For purposes of this
13 subdivision, if an individual is a farmer or fisherman for any taxable
14 year there shall be only one required installment for the taxable year,
15 due on January fifteenth of the following taxable year in an amount
16 equal to the required annual payment determined under paragraph three of
17 this subdivision by substituting sixty-six and two-thirds percent for
18 ninety percent and without regard to subparagraph (C) of paragraph three
19 of this subdivision. Subparagraph (B) of this paragraph shall be applied
20 by substituting March first for January thirty-first and by treating the
21 required installment under this subparagraph as the fourth required
22 installment. An individual is a farmer or fisherman for any taxable year
23 if the individual's federal gross income from farming or fishing,
24 including oyster farming, for the taxable year is at least two-thirds of
25 the total federal gross income from all sources for the taxable year or
26 if such individual's federal gross income from farming or fishing,
27 including oyster farming, shown on the return of the individual for the
28 preceding taxable year is at least two-thirds of the total federal gross
29 income from all sources shown on such return.
30 (D) Fiscal years. In applying this subdivision to a taxable year
31 beginning on any date other than January first, there shall be substi-
32 tuted, for the months specified in this subdivision, the months which
33 correspond thereto.
34 (E) Short taxable year. This subdivision shall be applied to taxable
35 years of less than twelve months in accordance with regulations
36 prescribed by the tax commission.
37 (F) Joint estimated tax of husband and wife. A husband and wife may
38 make the required annual payment determined under paragraph three of
39 this subdivision as if they were one taxpayer, in which case the liabil-
40 ity under paragraph one of this subdivision with respect to the esti-
41 mated tax shall be joint and several. No such joint payment may be made
42 if husband and wife are separated under a decree of divorce or separate
43 maintenance, or if they have different taxable years. If a joint
44 payment is made but husband and wife determine their taxes under this
45 chapter separately, the estimated tax for such year may be treated as
46 the estimated tax of either husband or wife, or may be divided between
47 them, as they may elect.
48 (6) Trusts and certain estates. (A) General. This subdivision shall
49 apply to any trust or estate except as provided in subparagraphs (B) and
50 (C) of this paragraph.
51 (B) Exception for estates and certain trusts. This subdivision shall
52 not apply with respect to any taxable year ending before the date two
53 years after the date of the decedent's death to (i) the estate of such
54 decedent or (ii) any trust all of which was treated, under subpart E of
55 part I of subchapter J of chapter one of the internal revenue code, as
56 owned by the decedent and to which the residue of the decedent's estate
S. 8578 1040
1 will pass under his will, or, if no will is admitted to probate, which
2 is the trust primarily responsible for paying debts, taxes and expenses
3 of administration.
4 (C) Special rule for annualizations. In the case of any estate or
5 trust, subparagraph (B) of paragraph four of this subdivision shall be
6 applied by substituting "ending before the date one month before the due
7 date for the installment" for "ending before the due date for the
8 installment".
9 (D) In the case of a trust, the trustee may elect to treat any portion
10 of a payment of estimated tax made by such trust for any taxable year of
11 the trust as a payment made by a beneficiary of such trust. Any amount
12 so treated shall be treated as paid or credited to the beneficiary on
13 the last day of such taxable year, and for purposes of this subdivision,
14 the amount so treated shall not be treated as a payment of estimated tax
15 made by the trust, but shall be treated as a payment of estimated tax
16 made by such beneficiary on the January fifteenth following the end of
17 the trust's taxable year.
18 (E) An election under subparagraph (D) of this paragraph shall be made
19 on or before the sixty-fifth day after the close of the taxable year and
20 in such manner as the commissioner of taxation and finance may
21 prescribe.
22 (F) Extension to last year of estate. In the case of a taxable year
23 reasonably expected to be the last taxable year of an estate, any refer-
24 ence in subparagraph (D) of this paragraph to a trust shall be treated
25 as including a reference to an estate, and the fiduciary of the estate
26 shall be treated as the trustee.
27 (d) Exceptions to addition to tax for failure to pay estimated income
28 tax.
29 (1) Where tax is small amount. No addition to tax shall be imposed
30 under subdivision (c) of this section for any taxable year if the tax
31 shown on the return for such taxable year, or, if no return is filed,
32 the tax, reduced by the credit allowable under section 11-1773 of this
33 chapter, is less than one hundred dollars.
34 (2) Where no tax liability for preceding taxable year. No addition to
35 tax shall be imposed under subdivision (c) of this section for any taxa-
36 ble year if the preceding taxable year was a taxable year of twelve
37 months, the individual did not have any liability for tax under this
38 chapter for the preceding taxable year and throughout the preceding
39 taxable year the individual was a resident of this city or a nonresident
40 who had city adjusted gross income.
41 (3) Installment due on or after individual's death. No addition to
42 tax shall be imposed under subdivision (c) of this section with respect
43 to any installment due on or after the individual's death.
44 (4) Waiver in certain cases. (A) In general. No addition to tax
45 shall be imposed under subdivision (c) of this section with respect to
46 any underpayment to the extent the tax commission determines that by
47 reason of casualty, disaster or other unusual circumstances the imposi-
48 tion of such addition to tax would be against equity and good
49 conscience.
50 (B) Newly retired or disabled individuals. No addition to tax shall
51 be imposed under subdivision (c) of this section with respect to any
52 underpayment if the tax commission determines that in the taxable year
53 for which estimated payments were required to be made or in the taxable
54 year preceding such taxable year the taxpayer retired after having
55 attained age sixty-two or became disabled, and that such underpayment
56 was due to reasonable cause and not to willful neglect.
S. 8578 1041
1 (e) Deficiency due to fraud. (1) If any part of a deficiency is due
2 to fraud, there shall be added to the tax an amount equal to fifty
3 percent of the deficiency.
4 (2) There shall be added to the tax, in addition to the amount deter-
5 mined under paragraph one of this subdivision, an amount equal to fifty
6 percent of the interest payable under section 11-1784 of this subchapter
7 with respect to the portion of the underpayment described in such para-
8 graph one which is attributable to fraud, for the period beginning on
9 the last day prescribed by law for payment of such underpayment, deter-
10 mined without regard to any extension, and ending on the date of the
11 assessment of the tax, or, if earlier, the date of the payment of the
12 tax.
13 (3) The addition to tax under this subdivision shall be in lieu of any
14 other addition to tax imposed by subdivision (a) or (b) of this section.
15 (4) In the case of a joint return under section 11-1751 of this chap-
16 ter, this subdivision shall not apply with respect to the tax of a
17 spouse unless some part of the underpayment is due to the fraud of such
18 spouse.
19 (f) Non-willful failure to pay withholding tax. If any employer,
20 without intent to evade or defeat any tax imposed by this chapter or the
21 payment thereof, shall fail to make a return and pay a tax withheld by
22 him or her at the time required by or under the provisions of section
23 11-1774 of this chapter, such employer shall be liable for such tax and
24 shall pay the same together with interest thereon and the addition to
25 tax provided in subdivision (a) of this section, and such interest and
26 addition to tax shall not be charged to or collected from the employee
27 by the employer. The tax commission shall have the same rights and
28 powers for the collection of such tax, interest and addition to tax
29 against such employer as are now prescribed by this chapter for the
30 collection of tax against an individual taxpayer.
31 (g) Willful failure to collect and pay over tax. Any person required
32 to collect, truthfully account for, and pay over the tax imposed by this
33 chapter who willfully fails to collect such tax or truthfully account
34 for and pay over such tax or willfully attempts in any manner to evade
35 or defeat the tax or the payment thereof, shall, in addition to other
36 penalties provided by law, be liable to a penalty equal to the total
37 amount of the tax evaded, or not collected, or not accounted for and
38 paid over. No addition to tax under subdivision (b) or (e) of this
39 section shall be imposed for any offense to which this subdivision
40 applies. The tax commission shall have the power, in its discretion, to
41 waive, reduce or compromise any penalty under this subdivision.
42 (h) Failure to file certain information returns. (1) Except as other-
43 wise provided in this paragraph, in case of each failure to file a
44 statement of a payment to another person, required under authority of
45 subdivision (d) of section 11-1758 of this chapter, relating to informa-
46 tion at source, including the duplicate statement of tax withheld on
47 wages, on the date prescribed therefor, determined with regard to any
48 extension of time for filing, unless it is shown that such failure is
49 due to reasonable cause and not to willful neglect, there shall, upon
50 notice and demand by the tax commission and in the same manner as tax,
51 be paid by the person so failing to file the statement, a penalty of
52 fifty dollars for each statement not so filed, but the total amount
53 imposed on the delinquent person for all such failures during any calen-
54 dar year shall not exceed ten thousand dollars.
55 (2) If any partnership or S corporation required to file a return or
56 report under subdivision (c) of section 11-1758 of this chapter or under
S. 8578 1042
1 section 11-1759 of this chapter for any taxable year fails to file such
2 return or report at the time prescribed therefor, determined with regard
3 to any extension of time for filing, or files a return or report which
4 fails to show the information required under such subdivision (c) or
5 section 11-1759 of this chapter, unless it is shown that such failure is
6 due to reasonable cause and not due to willful neglect, there shall,
7 upon notice and demand by the commissioner and in the same manner as
8 tax, be paid by the partnership or S corporation a penalty for each
9 month, or fraction thereof, during which such failure continues, but not
10 to exceed five months. The amount of such penalty for any month is the
11 product of fifty dollars, multiplied by the number of partners in the
12 partnership or shareholders in the S corporation during any part of the
13 taxable year who were subject to tax under this chapter during any part
14 of such taxable year.
15 (i) Additional penalty. Any person who with fraudulent intent shall
16 fail to pay, or to deduct or withhold and pay, any tax, or to make,
17 render, sign or certify any return, or to supply any information within
18 the time required by or under this chapter, shall be liable to penalty
19 of not more than one thousand dollars, in addition to any other amounts
20 required under this chapter, to be imposed, assessed and collected by
21 the tax commission. The tax commission shall have the power, in its
22 discretion, to waive, reduce or compromise any penalty under this subdi-
23 vision.
24 (j) Fraudulent statement or failure to furnish statement to employee.
25 In addition to any criminal penalties provided by law, any person
26 required under the provisions of section 11-1772 of this chapter to
27 furnish a statement to an employee, who willfully furnishes a false or
28 fraudulent statement, or who willfully fails to furnish a statement in
29 the manner, at the time, and showing the information required under
30 section 11-1772 of this chapter, or regulations prescribed thereunder,
31 shall for each such failure be subject to a penalty under this chapter
32 of fifty dollars.
33 (k) Failure to supply identifying numbers. If any person who is
34 required by regulations prescribed under subdivision (b) of section
35 11-1758 of this chapter:
36 (1) to include his or her identifying number in any return, state-
37 ment, or other document;
38 (2) to furnish his or her identifying number to another person; or
39 (3) to include in any return, statement or other document made with
40 respect to another person the identifying number of such other person,
41 fails to comply with such requirement at the time prescribed by such
42 regulations, such person shall, unless it is shown that such failure is
43 due to reasonable cause and not due to willful neglect, pay a penalty of
44 five dollars for each such failure described in paragraph one of this
45 subdivision and fifty dollars for each such failure described in para-
46 graph two of this subdivision, and this paragraph, except that the total
47 amount imposed on such person for all such failures during any calendar
48 year shall not exceed ten thousand dollars; except that for failure to
49 include his or her own identification number in any return, statement or
50 other document, such penalty shall not be imposed unless such person
51 shall have failed to supply his or her identification number to the tax
52 commission within thirty days after demand therefor.
53 (1) Additions treated as tax. The additions to tax and penalties
54 provided by this section shall be paid upon notice and demand and shall
55 be assessed, collected and paid in the same manner as taxes, and any
56 reference in this chapter to income tax or tax imposed by this chapter,
S. 8578 1043
1 shall be deemed also to refer to the additions to tax and penalties
2 provided by this section. For purposes of section 11-1781 of this
3 subchapter, this subdivision shall not apply to:
4 (1) any addition to tax under subdivision (a) of this section except
5 as to that portion attributable to a deficiency;
6 (2) any addition to tax under subdivision (c) of this section;
7 (3) any penalty under subdivision (h) of this section and any addi-
8 tional penalty under subdivision (i) of this section; and
9 (4) any penalties under subdivisions (j), (k), (q), (r), (s) and (t)
10 of this section.
11 (m) Determination of deficiency. For purposes of subdivisions (b) and
12 (e) of this section, the amount shown as the tax by the taxpayer upon
13 his or her return shall be taken into account in determining the amount
14 of the deficiency only if such return was filed on or before the last
15 day prescribed for the filing of such return, determined with regard to
16 any extension of time for such filing.
17 (n) Person defined. For purposes of subdivisions (g), (i), (o), (q)
18 and (r) of this section, the term person includes an individual, corpo-
19 ration, partnership or limited liability company or an officer or
20 employee of any corporation, including a dissolved corporation, or a
21 member or employee of any partnership, or a member, manager or employee
22 of a limited liability company, who as such officer, employee, manager
23 or member is under a duty to perform the act in respect of which the
24 violation occurs.
25 (o) Failure to make deposits of taxes. In case of failure by any
26 person required by this chapter, or by regulations of the tax commission
27 under this chapter, to deposit on the date prescribed therefor any
28 amount of tax imposed by this chapter in a depository authorized pursu-
29 ant to subdivision (a) of section 11-1792 of this subchapter to receive
30 such deposits, unless it is shown that such failure is due to reasonable
31 cause and not due to willful neglect, there shall be imposed on such
32 person a penalty of five percent of the amount of the underpayment. For
33 purposes of this subdivision the term "underpayment" means the excess of
34 the amount of the tax required to be so deposited over the amount, if
35 any, thereof, deposited on or before the date prescribed therefor.
36 (p) Substantial understatement of liability. If there is a substantial
37 understatement of income tax for any taxable year, there shall be added
38 to the tax an amount equal to ten percent of the amount of any underpay-
39 ment attributable to such understatement. For purposes of this subdivi-
40 sion, there is a substantial understatement of income tax for any taxa-
41 ble year if the amount of the understatement for the taxable year
42 exceeds the greater of ten percent of the tax required to be shown on
43 the return for the taxable year, or two thousand dollars. For purposes
44 of this subdivision, the term "understatement" means the excess of the
45 amount of the tax required to be shown on the return for the taxable
46 year, over the amount of the tax imposed which is shown on the return
47 reduced by any rebate, within the meaning of subdivision (g) of section
48 11-1781 of this subchapter. The amount of such understatement shall be
49 reduced by that portion of the understatement which is attributable to
50 the tax treatment of any item by the taxpayer if there is or was
51 substantial authority for such treatment, or any item with respect to
52 which the relevant facts affecting the item's tax treatment are
53 adequately disclosed in the return or in a statement attached to the
54 return. The tax commission may waive all or any part of the addition to
55 tax provided by this subdivision on a showing by the taxpayer that there
S. 8578 1044
1 was reasonable cause for the understatement, or part thereof, and that
2 the taxpayer acted in good faith.
3 (q) Frivolous tax returns. If any individual files what purports to
4 be a return of any tax imposed by this chapter but which does not
5 contain information on which the substantial correctness of the self-as-
6 sessment may be judged, or contains information that on its face indi-
7 cates that the self-assessment is substantially incorrect; and such
8 conduct is due to a position which is frivolous, or an intent, which
9 appears on the purported return, to delay or impede the administration
10 of this chapter, then such individual shall pay a penalty not exceeding
11 five hundred dollars. This penalty shall be in addition to any other
12 penalty provided by law.
13 (r) Aiding or assisting in the giving of fraudulent returns, reports,
14 statements or other documents. (1) Any person who, with the intent that
15 tax be evaded, shall, for a fee or other compensation or as an incident
16 to the performance of other services for which such person receives
17 compensation, aid or assist in, or procure, counsel, or advise the prep-
18 aration or presentation under, or in connection with any matter arising
19 under this chapter of any return, report, declaration, statement or
20 other document which is fraudulent or false as to any material matter,
21 or supply any false or fraudulent information, whether or not such
22 falsity of fraud is with the knowledge or consent of the person author-
23 ized or required to present such return, report, declaration, statement
24 or other document shall pay a penalty not exceeding one thousand
25 dollars.
26 (2) For purposes of paragraph one of this subdivision, the term
27 "procures" includes ordering, or otherwise causing, a subordinate to do
28 an act, and knowing of, and not attempting to prevent, participation by
29 a subordinate in an act. The term "subordinate" means any other person,
30 whether or not a director, officer, employee, or agent of the taxpayer
31 involved, over whose activities the person has direction, supervision or
32 control.
33 (3) For purposes of paragraph one of this subdivision, a person
34 furnishing typing, reproducing, or other mechanical assistance with
35 respect to a document shall not be treated as having aided or assisted
36 in the preparation of such document by reason of such assistance.
37 (4) The penalty imposed by this subdivision shall be in addition to
38 any other penalty provided by law.
39 (s) False information with respect to withholding. In addition to any
40 criminal penalty provided by law, if any individual makes a statement
41 under section 11-1771 of this chapter which results in a decrease in the
42 amounts deducted and withheld under this chapter, and as of the time
43 such statement was made, there was no reasonable basis for such state-
44 ment, such individual shall pay a penalty of five hundred dollars for
45 such statement. The tax commission shall waive the penalty imposed
46 under this subdivision if the taxes imposed with respect to the individ-
47 ual under this chapter for the taxable year are equal to or less than
48 the sum of the credits against such taxes allowed by this chapter, and
49 the payments of estimated tax which are considered payments on account
50 of such taxes.
51 (t) Failure of tax return preparer to conform to certain requirements.
52 (1) Failure to sign return or claim for refund. Any individual who is a
53 tax return preparer with respect to any return or claim for refund, who
54 is required pursuant to paragraph one of subdivision (g) of section
55 11-1758 of this chapter to sign such return or claim for refund, and who
56 fails to comply with such requirement with respect to such return or
S. 8578 1045
1 claim for refund, shall be subject to a penalty of fifty dollars for
2 each such failure, unless it is shown that such failure is due to
3 reasonable cause and not due to willful neglect. The maximum penalty
4 imposed under this paragraph on any person with respect to returns or
5 claims for refund filed during any calendar year shall not exceed twen-
6 ty-five thousand dollars.
7 (2) Failure to furnish identifying number. If any identifying number
8 required to be included on any return or claim for refund pursuant to
9 paragraph two of subdivision (g) of section 11-1758 of this chapter is
10 not so included, the person who is the tax return preparer with respect
11 to such return or claim for refund shall be subject to a penalty of
12 fifty dollars with respect to such return or claim for refund unless it
13 is shown that such failure is due to reasonable cause and not willful
14 neglect. For purposes of this paragraph, where an employer and one or
15 more employees of such employer are tax return preparers with respect to
16 the same return or claim for refund or where a partnership and one or
17 more partners in such partnership are tax return preparers with respect
18 to the same return or claim for refund, such employer or such partner-
19 ship shall be deemed to be the sole tax return preparer with respect to
20 such return or claim for refund. The maximum penalty imposed under this
21 paragraph on any person with respect to returns or claims for refund
22 filed during any calendar year shall not exceed twenty-five thousand
23 dollars.
24 (3) Failure to furnish copy to taxpayer. Any person who is a tax
25 return preparer with respect to any return or claim for refund, who is
26 required under paragraph three of subdivision (g) of section 11-1758 of
27 this chapter to furnish a copy of such return or claim for refund to the
28 taxpayer, and who fails to comply with such provision with respect to
29 such return or claim for refund shall be subject to a penalty of fifty
30 dollars for each such failure, unless it is shown that such failure is
31 due to reasonable cause and not due to willful neglect. The maximum
32 penalty imposed under this paragraph on any person with respect to
33 returns or claims for refund filed during any calendar year shall not
34 exceed twenty-five thousand dollars.
35 (4) Failure to retain copy or list. Any person who is a tax return
36 preparer with respect to any return or claim for refund, who is required
37 under paragraph four of subdivision (g) of section 11-1758 of this chap-
38 ter to: (i) retain a copy of such return or claim for refund or retain
39 on a list the name and taxpayer identifying number of the taxpayer for
40 whom such return or claim for refund was prepared and (ii) make such
41 copy or list available for inspection upon request by the commissioner
42 of taxation and finance, and who fails to comply with the retention
43 requirement or who complies with the retention requirement but fails to
44 comply with such request by the commissioner, shall be subject to a
45 penalty of fifty dollars for each such failure, unless it is shown that
46 such failure is due to reasonable cause and not due to willful neglect.
47 The maximum penalty imposed under this paragraph on any person with
48 respect to any calendar year shall not exceed twenty-five thousand
49 dollars.
50 (5) Failure to electronically file. If a tax return preparer is
51 required to file returns electronically pursuant to paragraph ten of
52 subdivision (g) of section 11-1758 of this chapter, and such preparer
53 fails to file one or more of such returns electronically, then such
54 preparer shall be subject to a penalty of fifty dollars for each such
55 failure to electronically file a return, unless it is shown that such
56 failure is due to reasonable cause and not due to willful neglect. For
S. 8578 1046
1 purposes of this paragraph, reasonable cause shall include, but not be
2 limited to, a taxpayer's election not to electronically file his or her
3 return.
4 § 11-1786 Overpayment. (a) General. The state commissioner of taxa-
5 tion and finance, within the applicable period of limitations, may cred-
6 it an overpayment of income tax and interest on such overpayment against
7 any liability in respect of any tax imposed by this chapter or by chap-
8 ter nineteen of this title on the person who made the overpayment or any
9 other tax imposed on such person pursuant to the authority of the tax
10 law or any other law if such tax is administered by the state commis-
11 sioner of taxation and finance, against any liability in respect of any
12 tax imposed on such person by the tax law and, as provided in sections
13 one hundred seventy-one-c, one hundred seventy-one-d, one hundred seven-
14 ty-one-e, one hundred seventy-one-f and one hundred seventy-one-l of the
15 tax law, against past-due support, against a past-due legally enforcea-
16 ble debt, against a city of New York tax warrant judgment debt and
17 against the amount of a default in repayment of a guaranteed student,
18 state university or city university loan. The balance shall be refunded
19 by the state comptroller out of the proceeds of the tax retained by him
20 or her for such general purpose. Any refund under this section shall be
21 made only upon the filing of a return and upon a certificate of the
22 state commissioner of taxation and finance approved by the state comp-
23 troller. The state comptroller, as a condition precedent to the approval
24 of such a certificate, may examine into the facts as disclosed by the
25 return of the person who made the overpayment and other information and
26 data available in the files of the state commissioner of taxation and
27 finance.
28 (b) Excessive withholding. If the amount allowable as a credit for
29 tax withheld from the taxpayer exceeds his or her tax to which the cred-
30 it relates, the excess shall be considered an overpayment.
31 (c) Overpayment by employer. If there has been an overpayment of tax
32 required to be deducted and withheld under section 11-1771 of this chap-
33 ter, refund shall be made to the employer only to the extent that the
34 amount of the overpayment was not deducted and withheld by the employer.
35 (d) Overpayment by a deceased person. Notwithstanding section thir-
36 teen hundred ten of the surrogate's court procedure act, any overpayment
37 by a decedent not in excess of one thousand dollars may be refunded to
38 the decedent's surviving spouse unless the return for the decedent was
39 filed by his or her executor or administrator.
40 (e) Credits against estimated tax. The commissioner of taxation and
41 finance may prescribe regulations providing for the crediting against
42 the estimated income tax for any taxable year of the amount determined
43 to be an overpayment of the income tax for a preceding taxable year. If
44 any overpayment of income tax is so claimed as a credit against esti-
45 mated tax for the succeeding taxable year, such amount shall be consid-
46 ered as a payment of the income tax for the succeeding taxable year, and
47 no claim for credit or refund of such overpayment shall be allowed for
48 the taxable year for which the overpayment arises, except upon request
49 to the commissioner of taxation and finance on or before the last day
50 prescribed for the filing of the return for the succeeding taxable year,
51 determined with regard to any extension of time granted. If good cause
52 is shown for reversing the credit, the commissioner of taxation and
53 finance may, in his or her discretion, credit the overpayment against a
54 liability or refund the overpayment without interest. Provided, the
55 person who made the overpayment will not be relieved of liability for
56 any penalty imposed for a consequent underpayment of estimated tax for
S. 8578 1047
1 the succeeding taxable year. The decision of the commissioner of taxa-
2 tion and finance to grant or deny the request is final and not subject
3 to further administrative or judicial review.
4 (f) Rule where no tax liability. If there is no tax liability for a
5 period in respect of which an amount is paid as income tax, such amount
6 shall be considered an overpayment.
7 (g) Assessment and collection after limitation period. If any amount
8 of income tax is assessed or collected after the expiration of the peri-
9 od of limitations properly applicable thereto, such amount shall be
10 considered an overpayment.
11 (h) Cross reference. For provision barring application of article
12 fifty-two of the civil practice law and rules to any amount to be
13 refunded or credited to a taxpayer, see section seven of the tax law.
14 § 11-1787 Limitations on credit or refund. (a) General. Claim for
15 credit or refund of an overpayment of income tax shall be filed by the
16 taxpayer within three years from the time the return was filed or two
17 years from the time the tax was paid, whichever of such periods expires
18 the later, or if no return was filed, within two years from the time the
19 tax was paid. If the claim is filed within the three year period, the
20 amount of the credit or refund shall not exceed the portion of the tax
21 paid within the three years immediately preceding the filing of the
22 claim plus the period of any extension of time for filing the return.
23 If the claim is not filed within the three year period, but is filed
24 within the two year period, the amount of the credit or refund shall not
25 exceed the portion of the tax paid during the two years immediately
26 preceding the filing of the claim. Except as otherwise provided in this
27 section, if no claim is filed, the amount of a credit or refund shall
28 not exceed the amount which would be allowable if a claim had been filed
29 on the date the credit or refund is allowed.
30 (b) Extension of time by agreement. If an agreement under the
31 provisions of paragraph two of subdivision (c) of section 11-1783 of
32 this subchapter, extending the period for assessment of income tax, is
33 made within the period prescribed in subdivision (a) of this section
34 for the filing of a claim for credit or refund, the period for filing a
35 claim for credit or refund, or for making credit or refund if no claim
36 is filed, shall not expire prior to six months after the expiration of
37 the period within which an assessment may be made pursuant to the agree-
38 ment or any extension thereof. The amount of such credit or refund
39 shall not exceed the portion of the tax paid after the execution of the
40 agreement and before the filing of the claim or the making of the credit
41 or refund, as the case may be, plus the portion of the tax paid within
42 the period which would be applicable under subdivision (a) of this
43 section if a claim had been filed on the date the agreement was
44 executed.
45 (c) Notice of federal change or correction. A claim for credit or
46 refund of any overpayment of tax attributable to a federal change or
47 correction required to be reported pursuant to section 11-1759 of this
48 chapter shall be filed by the taxpayer within two years from the time
49 the notice of such change or correction or such amended return was
50 required to be filed with the commissioner of taxation and finance. If
51 the report or amended return required by section 11-1759 of this chapter
52 is not filed within the ninety day period therein specified, no interest
53 shall be payable on any claim for credit or refund of the overpayment
54 attributable to the federal change or correction. The amount of such
55 credit or refund shall not exceed the amount of the reduction in tax
56 attributable to such federal change, correction or items amended on the
S. 8578 1048
1 taxpayer's amended federal income tax return. This subdivision shall
2 not affect the time within which or the amount for which a claim for
3 credit or refund may be filed apart from this subdivision.
4 (d) Overpayment attributable to net operating loss carryback. A claim
5 for credit or refund of so much of an overpayment as is attributable to
6 the application to the taxpayer of a net operating loss carryback shall
7 be filed within three years from the time the return was due, including
8 extensions thereof, for the taxable year of the loss, or within the
9 period prescribed in subdivision (b) of this section in respect of such
10 taxable year, or within the period prescribed in subdivision (c) of this
11 section, where applicable, in respect of the taxable year to which the
12 net operating loss is carried back, whichever expires the latest.
13 (e) Failure to file claim within prescribed period. No credit or
14 refund shall be allowed or made, except as provided in subdivision (f)
15 of this section or subdivision (d) of section 11-1790 of this subchap-
16 ter, after the expiration of the applicable period of limitation speci-
17 fied in this chapter, unless a claim for credit or refund is filed by
18 the taxpayer within such period. Any later credit shall be void and any
19 later refund erroneous. No period of limitations specified in any other
20 law shall apply to the recovery by a taxpayer of moneys paid in respect
21 of taxes under this chapter.
22 (f) Effect of petition to tax commission. If a notice of deficiency
23 for a taxable year has been mailed to the taxpayer under section 11-1781
24 of this subchapter and if the taxpayer files a timely petition with the
25 tax commission under section 11-1789 of this subchapter, it may deter-
26 mine that the taxpayer has made an overpayment for such year, whether or
27 not it also determines a deficiency for such a year. No separate claim
28 for credit or refund for such year shall be filed, and no credit or
29 refund for such year shall be allowed or made, except:
30 (1) as to overpayments determined by a decision of the tax commission
31 which has become final; and
32 (2) as to any amount collected in excess of an amount computed in
33 accordance with the decision of the tax commission which has become
34 final; and
35 (3) as to any amount collected after the period of limitation upon the
36 making of levy for collection has expired; and
37 (4) as to any amount claimed as a result of a change or correction
38 described in subdivision (c) of this section.
39 (g) Limit on amount of credit or refund. The amount of overpayment
40 determined under subdivision (f) of this section shall, when the deci-
41 sion of the tax commission has become final, be credited or refunded in
42 accordance with subdivision (a) of section 11-1786 of this subchapter
43 and shall not exceed the amount of tax which the tax commission deter-
44 mines as part of its decision was paid:
45 (1) after the mailing of the notice of deficiency, or
46 (2) within the period which would be applicable under subdivision (a),
47 (b) or (c) of this section, if on the date of the mailing of the notice
48 of deficiency a claim had been filed, whether or not filed, stating the
49 grounds upon which the tax commission finds that there is an overpay-
50 ment.
51 (h) Early return. For purposes of this section, any return filed
52 before the last day prescribed for the filing thereof shall be consid-
53 ered as filed on such last day, determined without regard to any exten-
54 sion of time granted the taxpayer.
55 (i) Prepaid income tax. For purposes of this section, any tax paid by
56 the taxpayer before the last day prescribed for its payment, any income
S. 8578 1049
1 tax withheld from the taxpayer during any calendar year, and any amount
2 paid by the taxpayer as estimated income tax for a taxable year shall be
3 deemed to have been paid by him or her on the fifteenth day of the
4 fourth month following the close of his or her taxable year with respect
5 to which such amount constitutes a credit or payment.
6 (j) Return and payment of withholding tax. Notwithstanding subdivi-
7 sion (h) of this section, for purposes of this section with respect to
8 any withholding tax:
9 (1) if a return for any period ending with or within a calendar year
10 is filed before April fifteenth of the succeeding calendar year, such
11 return shall be considered filed on April fifteenth of such succeeding
12 calendar year; and
13 (2) if a tax with respect to remuneration paid during any period
14 ending with or within a calendar year is paid before April fifteenth of
15 the succeeding calendar year, such tax shall be considered paid on April
16 fifteenth of such succeeding calendar year.
17 (k) Running of periods of limitation suspended while taxpayer is
18 unable to manage financial affairs due to disability. (1) In the case of
19 an individual taxpayer, the running of the periods specified in subdivi-
20 sions (a), (b), and (c) of this section shall be suspended during any
21 period of such individual's life that such individual is financially
22 disabled. For purposes of this subdivision, an individual taxpayer is an
23 individual who is subject to the tax imposed under this chapter.
24 (2) For purposes of paragraph one of this subdivision, an individual
25 taxpayer is financially disabled if such individual is unable to manage
26 his or her financial affairs by reason of a medically determinable phys-
27 ical or mental impairment of that individual which can be expected to
28 result in death or which has lasted or can be expected to last for a
29 continuous period of not less than twelve months. An individual shall
30 not be considered to have such impairment unless proof of the existence
31 thereof is furnished in such form and manner as the commissioner of
32 taxation and finance may require.
33 (3) An individual taxpayer shall not be treated as financially disa-
34 bled during any period that such individual's spouse or any other person
35 is authorized to act on behalf of such individual in financial matters.
36 (l) Cross reference. For provision barring refund of overpayment
37 credited against tax of a succeeding year, see subdivision (e) of
38 section 11-1786 of this subchapter.
39 § 11-1788 Interest on overpayment. (a) General. Notwithstanding the
40 provisions of section sixteen of the state finance law, interest shall
41 be allowed and paid as follows at the overpayment rate set by the
42 commissioner of taxation and finance pursuant to section 11-1797 of this
43 subchapter, or if no rate is set, at the rate of six percent per annum
44 upon any overpayment in respect of the tax imposed by this chapter:
45 (1) from the date of the overpayment to the due date of an amount
46 against which a credit is taken;
47 (2) from the date of the overpayment to a date, to be determined by
48 the commissioner of taxation and finance, preceding the date of a refund
49 check by not more than thirty days, whether or not such refund check is
50 accepted by the taxpayer after tender of such check to the taxpayer. The
51 acceptance of such check shall be without prejudice to any right of the
52 taxpayer to claim any additional overpayment and interest thereon.
53 (3) Late and amended returns and claims for credit or refund.
54 Notwithstanding paragraph one or two of this subdivision, in the case of
55 an overpayment claimed on a return of tax which is filed after the last
56 date prescribed for filing such return, determined with regard to exten-
S. 8578 1050
1 sions, or claimed on an amended return of tax or claimed on a claim for
2 credit or refund, no interest shall be allowed or paid for any day
3 before the date on which such return or claim is filed.
4 (4) Interest on certain refunds. To the extent provided for in regu-
5 lations promulgated by the commissioner of taxation and finance, if an
6 item of income, gain, loss, deduction or credit is changed from the
7 taxable year or period in which it is reported to the taxable year or
8 period in which it belongs and the change results in an underpayment in
9 a taxable year or period and an overpayment in some other taxable year
10 or period, the provisions of paragraph three of this subdivision with
11 respect to an overpayment shall not be applicable to the extent that the
12 limitation in such paragraph on the right to interest would result in a
13 taxpayer not being allowed interest for a length of time with respect to
14 an overpayment while being required to pay interest on an equivalent
15 amount of the related underpayment. However, this paragraph shall not be
16 construed as limiting or mitigating the effect of any statute of limita-
17 tions or any other provision of law relating to the authority of such
18 commissioner to issue a notice of deficiency or to allow a credit or
19 refund on an overpayment.
20 (5) Amounts of less than one dollar. No interest shall be allowed or
21 paid if the amount thereof is less than one dollar.
22 (b) Advance payment of tax, payment of estimated tax, and credit for
23 income tax withholding. The provisions of subdivisions (h) and (i) of
24 section 11-1787 of this subchapter applicable in determining the date of
25 payment of tax for purposes of determining the period of limitations on
26 credit or refund, shall be applicable in determining the date of payment
27 for purposes of this section.
28 (c) Income tax refund within forty-five days of claim for overpayment.
29 If any overpayment of tax imposed by this chapter is credited or
30 refunded within forty-five days after the last date prescribed, or
31 permitted by extension of time, for filing the return of such tax on
32 which such overpayment was claimed or within forty-five days after such
33 return was filed, whichever is later, or within forty-five days after an
34 amended return was filed claiming such overpayment or within forty-five
35 days after a claim for credit or refund was filed on which such overpay-
36 ment was claimed, within six months after a demand is filed pursuant to
37 paragraph six of subsection (b) of section six hundred fifty-one of the
38 tax law, no interest shall be allowed under this section on any such
39 overpayment. For purposes of this subdivision, any amended return or
40 claim for credit or refund filed before the last day prescribed, or
41 permitted by extension of time, for the filing of the return of tax for
42 such year shall be considered as filed on such last day.
43 (d) Refund of income tax caused by carryback. For purposes of this
44 section, if any overpayment of tax imposed by this chapter results from
45 a carryback of a net operating loss, such overpayment shall be deemed
46 not to have been made prior to the filing date for the taxable year in
47 which such net operating loss arises. Such filing date shall be deter-
48 mined without regard to extensions of time to file. For purposes of
49 subdivision (c) of this section any overpayment described herein shall
50 be treated as an overpayment for the loss year and such subdivision
51 shall be applied with respect to such overpayment by treating the return
52 for the loss year as not filed before claim for such overpayment is
53 filed. The term "loss year" means the taxable year in which such loss
54 arises.
55 (e) No interest until return in processible form.
S. 8578 1051
1 (1) For purposes of subdivisions (a) and (c) of this section, a return
2 shall not be treated as filed until it is filed in processible form.
3 (2) For purposes of paragraph one of this subdivision, a return is in
4 a processible form if:
5 (A) such return is filed on a permitted form, and
6 (B) such return contains:
7 (i) the taxpayer's name, address, and identifying number and the
8 required signatures, and
9 (ii) sufficient required information, whether on the return or on
10 required attachments, to permit the mathematical verification of tax
11 liability shown on the return.
12 (f) Overpayment credited against past-due support, or against a past-
13 due legally enforceable debt, or a city of New York tax warrant judgment
14 debt, or defaulted guaranteed student, state university or city univer-
15 sity loans. If interest is payable pursuant to this section on that
16 portion of an overpayment of tax imposed by this chapter which is certi-
17 fied by the state commissioner of taxation and finance to the state
18 comptroller as the amount to be credited against past-due support, or
19 against a past-due legally enforceable debt, or a city of New York tax
20 warrant judgment debt, or the amount of a default in repayment of a
21 guaranteed student, state university or city university loan, as the
22 case may be, pursuant to the provisions of sections one hundred seven-
23 ty-one-c, one hundred seventy-one-d, one hundred seventy-one-e, one
24 hundred seventy-one-f and one hundred seventy-one-l of the tax law, such
25 portion of such an overpayment shall cease to bear interest on the date
26 of such certification.
27 (g) Cross-reference. For provision with respect to interest after
28 failure to file notice of federal change under section 11-1759 of this
29 chapter, see subdivision (c) of section 11-1787 of this subchapter.
30 § 11-1789 Petition to tax commission. (a) General. The form of a
31 petition to the tax commission, and further proceedings before the tax
32 commission in any case initiated by the filing of a petition, shall be
33 governed by such rules as the tax commission shall prescribe. No peti-
34 tion shall be denied in whole or in part without opportunity for a hear-
35 ing on reasonable prior notice. Such hearing shall be conducted by one
36 or more members of the tax commission, or by a hearing officer desig-
37 nated by the tax commission to take evidence and report to the tax
38 commission. The tax commissioners shall, acting as a body, jointly
39 decide the case as quickly as practicable. Notice of the decision shall
40 be mailed promptly to the taxpayer by certified or registered mail at
41 his or her last known address, and such notice shall set forth the tax
42 commission's findings of fact and a brief statement of the grounds of
43 decision in each case decided in whole or in part adversely to the
44 taxpayer.
45 (b) Petition for redetermination of a deficiency. Within ninety days,
46 or one hundred fifty days if the notice is addressed to a person outside
47 of the United States, after the mailing of the notice of deficiency
48 authorized by section 11-1781 of this subchapter, the taxpayer may file
49 a petition with the tax commission for a redetermination of the defi-
50 ciency. Such petition may also assert a claim for refund for the same
51 taxable year or years, subject to the limitations of subdivision (g) of
52 section 11-1787 of this subchapter.
53 (c) Petition for refund. A taxpayer may file a petition with the tax
54 commission for the amounts asserted in a claim for refund if:
55 (1) the taxpayer has filed a timely claim for refund with the tax
56 commission,
S. 8578 1052
1 (2) the taxpayer has not previously filed with the tax commission a
2 timely petition under subdivision (b) of this section for the same
3 taxable year unless the petition under this subdivision relates to a
4 separate claim for credit or refund properly filed under subdivision (f)
5 of section 11-1787 of this subchapter, and
6 (3) either: (A) six months have expired since the claim was filed, or
7 (B) the tax commission has mailed to the taxpayer, by registered or
8 certified mail, a notice of disallowance of such claim in whole or in
9 part.
10 No petition under this subdivision shall be filed more than two years
11 after the date of mailing of a notice of disallowance, unless prior to
12 the expiration of such two year period it has been extended by written
13 agreement between the taxpayer and the tax commission. If a taxpayer
14 files a written waiver of the requirement that he or she be mailed a
15 notice of disallowance, the two year period prescribed by this subdivi-
16 sion for filing a petition for refund shall begin on the date such waiv-
17 er is filed.
18 (d) Assertion of deficiency after filing petition.
19 (1) Petition for redetermination of deficiency. If a taxpayer files
20 with the tax commission, a petition for redetermination of a deficiency,
21 the tax commission shall have power to determine a greater deficiency
22 than asserted in the notice of deficiency and to determine if there
23 should be assessed any addition to tax or penalty provided in section
24 11-1785 of this subchapter, if claim therefor is asserted at or before
25 the hearing under rules of the tax commission.
26 (2) Petition for refund. If the taxpayer files with the tax commis-
27 sion a petition for credit or refund for a taxable year, the tax commis-
28 sion may:
29 (A) determine a deficiency for such year as to any amount of defi-
30 ciency asserted at or before the hearing under rules of the tax commis-
31 sion, and within the period in which an assessment would be timely under
32 section 11-1783 of this subchapter, or
33 (B) deny so much of the amount for which credit or refund is sought
34 in the petition, as is offset by other issues pertaining to the same
35 taxable year which are asserted at or before the hearing under rules of
36 the tax commission.
37 (3) Opportunity to respond. A taxpayer shall be given a reasonable
38 opportunity to respond to any matters asserted by the tax commission
39 under this subdivision.
40 (4) Restriction on further notices of deficiency. If the taxpayer
41 files a petition with the tax commission under this section, no notice
42 of deficiency under section 11-1781 of this subchapter may thereafter be
43 issued by the tax commission for the same taxable year, except in case
44 of fraud or with respect to a change or correction required to be
45 reported under section 11-1759 of this chapter.
46 (e) Burden of proof. In any case before the tax commission under this
47 chapter, the burden of proof shall be upon the petitioner except for the
48 following issues, as to which the burden of proof shall be upon the tax
49 commission:
50 (1) whether the petitioner has been guilty of fraud with intent to
51 evade tax;
52 (2) whether the petitioner is liable as the transferee of property of
53 a taxpayer, but not to show that the taxpayer was liable for the tax;
54 (3) whether the petitioner is liable for any increase in a deficiency
55 where such increase is asserted initially after a notice of deficiency
56 was mailed and a petition under this section filed, unless such increase
S. 8578 1053
1 in deficiency is the result of a change or correction required to be
2 reported under section 11-1759 of this chapter, and of which change or
3 correction the tax commission had no notice at the time it mailed the
4 notice of deficiency; and
5 (4) whether any person is liable for a penalty under subdivision (q)
6 or (r) of section 11-1785 of this subchapter.
7 (f) Evidence of related federal determination. Evidence of a federal
8 determination relating to issues raised in a case before the tax commis-
9 sion under this section shall be admissible, under rules established by
10 the tax commission.
11 (g) Jurisdiction over other years. The tax commission shall consider
12 such facts with relation to the taxes for other years as may be neces-
13 sary correctly to determine the tax for the taxable year, but in so
14 doing shall have no jurisdiction to determine whether or not the tax for
15 any other year has been overpaid or underpaid.
16 § 11-1790 Review of tax commission decision. (a) General. A decision
17 of the tax commission shall be subject to judicial review at the
18 instance of any taxpayer effected thereby in the manner provided by law
19 for the review of a final decision or action of administrative agencies
20 of the state. An application by a taxpayer for such review must be made
21 within four months after notice of the decision is sent by certified or
22 registered mail to the taxpayer.
23 (b) Judicial review exclusive remedy of taxpayer. The review of a
24 decision of the tax commission provided by this section shall be the
25 exclusive remedy available to any taxpayer for the judicial determi-
26 nation of the liability of the taxpayer for the taxes imposed by this
27 chapter.
28 (c) Assessment pending review; review bond. Irrespective of any
29 restrictions on the assessment and collection of deficiencies, the tax
30 commission may assess a deficiency after the expiration of the period
31 specified in subdivision (a) of this section, notwithstanding that an
32 application for judicial review in respect of such deficiency has been
33 duly made by the taxpayer, unless the taxpayer, at or before the time
34 his or her application for review is made, has paid the deficiency, has
35 deposited with the tax commission the amount of the deficiency, or has
36 filed with the tax commission a bond, which may be a jeopardy bond under
37 subdivision (h) of section 11-1794 of this subchapter, in the amount of
38 the portion of the deficiency, including interest and other amounts, in
39 respect of which the application for review is made and all costs and
40 charges which may accrue against him or her in the prosecution of the
41 proceeding, including costs of all appeals, and with surety approved by
42 a justice of the supreme court of the state of New York, conditioned
43 upon the payment of the deficiency, including interest and other
44 amounts, as finally determined and such costs and charges. If as a
45 result of a waiver of the restrictions on the assessment and collection
46 of a deficiency any part of the amount determined by the tax commission
47 is paid after the filing of the review bond, such bond shall, at the
48 request of the taxpayer, be proportionately reduced.
49 (d) Credit, refund or abatement after review. If the amount of a
50 deficiency determined by the tax commission is disallowed in whole or in
51 part by the court of review, the amount so disallowed shall be credited
52 or refunded to the taxpayer, without the making of claim therefor, or,
53 if payment has not been made, shall be abated.
54 (e) Date of finality of tax commission decision. A decision of the
55 tax commission shall become final upon the expiration of the period
56 specified in subdivision (a) of this section for making an application
S. 8578 1054
1 for review, if no such application has been duly made within such time,
2 or if such application has been duly made, upon expiration of the time
3 for all further judicial review, or upon the rendering by the tax
4 commission of a decision in accordance with the mandate of the court on
5 review, provided, however, for the purpose of making an application for
6 review, the decision of the tax commission shall be deemed final on the
7 date the notice of decision is sent by certified or registered mail to
8 the taxpayer.
9 § 11-1791 Mailing rules; holidays; miscellaneous. (a) Timely mail-
10 ing. (1) If any return, claim, statement, notice, petition, or other
11 document required to be filed, or any payment required to be made, with-
12 in a prescribed period or on or before a prescribed date under authority
13 of any provision of this chapter is, after such period or such date,
14 delivered by United States mail to the tax commission, bureau, office,
15 officer or person with which or with whom such document is required to
16 be filed, or to which or to whom such payment is required to be made,
17 the date of the United States postmark stamped on the envelope shall be
18 deemed to be the date of delivery. This subdivision shall apply only if
19 the postmark date falls within the prescribed period or on or before the
20 prescribed date for the filing of such document, or for making the
21 payment, including any extension granted for such filing or payment, and
22 only if such document or payment was deposited in the mail, postage
23 prepaid, properly addressed to the tax commission, bureau, office, offi-
24 cer or person with which or with whom the document is required to be
25 filed or to which or to whom such payment is required to be made. If any
26 document or payment is sent by United States registered mail, such
27 registration shall be prima facie evidence that such document or payment
28 was delivered to the tax commission, bureau, office, officer or person
29 to which or to whom addressed. To the extent that the tax commission
30 shall prescribe by regulation, certified mail may be used in lieu of
31 registered mail under this section. This subdivision shall apply in the
32 case of postmarks not made by the United States post office only if and
33 to the extent provided by regulations of the tax commission.
34 (2)(A) Any reference in paragraph one of this subdivision to the
35 United States mail shall be treated as including a reference to any
36 delivery service designated by the secretary of the treasury of the
37 United States pursuant to section seventy-five hundred two of the Inter-
38 nal Revenue Code and any reference in paragraph one of this subdivision
39 to a postmark by the United States mail shall be treated as including a
40 reference to any date recorded or marked in the manner described in
41 section seventy-five hundred two of the Internal Revenue Code by a
42 designated delivery service. If the commissioner of taxation and finance
43 finds that any delivery service designated by such secretary is inade-
44 quate for the needs of the state, such commissioner may withdraw such
45 designation for purposes of this article. Such commissioner may also
46 designate additional delivery services meeting the criteria of section
47 seventy-five hundred two of the Internal Revenue Code for purposes of
48 this article, or may withdraw any such designation if such commissioner
49 finds that a delivery service so designated is inadequate for the needs
50 of the state. Any reference in paragraph one of this subdivision to the
51 United States mail shall be treated as including a reference to any
52 delivery service designated by such commissioner and any reference in
53 paragraph one of this subdivision to a postmark by the United States
54 mail shall be treated as including a reference to any date recorded or
55 marked in the manner described in section seventy-five hundred two of
S. 8578 1055
1 the Internal Revenue Code by a delivery service designated by the
2 commissioner.
3 (B) Any equivalent of registered or certified mail designated by the
4 United States secretary of the treasury, or as may be designated by the
5 commissioner of taxation and finance pursuant to the same criteria used
6 by the secretary for such designation pursuant to section seventy-five
7 hundred two of the Internal Revenue Code, shall be included within the
8 meaning of registered or certified mail as used in paragraph one of this
9 subdivision. If such commissioner finds that any equivalent of regis-
10 tered or certified mail designated by such secretary or such commission-
11 er is inadequate for the needs of the state, such commissioner may with-
12 draw such designation for purposes of this article.
13 (b) Last known address. For purposes of this chapter, a taxpayer's
14 last known address shall be the address given in the last return filed
15 by such taxpayer, unless subsequent to the filing of such return the
16 taxpayer shall have notified the tax commission of a change of address.
17 (c) Last day a Saturday, Sunday or legal holiday. When the last day
18 prescribed under authority of this chapter, including any extension of
19 time, for performing any act falls on Saturday, Sunday, or a legal holi-
20 day in the state of New York, the performance of such act shall be
21 considered timely if it is performed on the next succeeding day which is
22 not a Saturday, Sunday or a legal holiday.
23 (d) Certificate; unfiled return. For purposes of this chapter, the
24 certificate of the tax commission to the effect that a tax has not been
25 paid, that a return has not been filed, or that information has not been
26 supplied, as required by or under the provisions of this chapter, shall
27 be prima facie evidence that such tax has not been paid, that such
28 return has not been filed, or that such information has not been
29 supplied.
30 (e) Attorney general; jurisdiction. The attorney general shall have
31 concurrent jurisdiction with any district attorney in the prosecution of
32 any offenses arising under article thirty-seven of the tax law with
33 respect to the tax imposed under this chapter.
34 § 11-1792 Collection, levy and liens. (a) Collection procedures. The
35 taxes imposed by this chapter shall be collected by the tax commission,
36 and it may establish the mode or time for the collection of any amount
37 due it under this chapter if not otherwise specified. The tax commis-
38 sion shall, upon request, give a receipt for any sum collected under
39 this chapter. The tax commission may authorize banks or trust companies
40 which are depositaries or financial agents of the state to receive and
41 give a receipt for any tax imposed under this chapter in such manner, at
42 such times, and under such conditions as the tax commission may
43 prescribe; and the tax commission shall prescribe the manner, times and
44 conditions under which the receipt of such tax by such banks and trust
45 companies is to be treated as payment of such tax to the tax commission.
46 (b) Notice and demand for tax. The tax commission shall as soon as
47 practicable give notice to each person liable for any amount of tax,
48 addition to tax, penalty or interest, which has been assessed but
49 remains unpaid, stating the amount and demanding payment thereof. Such
50 notice shall be left at the dwelling or usual place of business of such
51 person or shall be sent by mail to such person's last known address.
52 Except where the tax commission determines that collection would be
53 jeopardized by delay, if any tax is assessed prior to the last date,
54 including any date fixed by extension, prescribed for payment of such
55 tax, payment of such tax shall not be demanded until after such date.
S. 8578 1056
1 (c) Issuance of warrant after notice and demand. If any person liable
2 under this chapter for the payment of any tax, addition to tax, penalty
3 or interest neglects or refuses to pay the same within twenty-one calen-
4 dar days after notice and demand therefor is given to such person under
5 subdivision (b) of this section, ten business days if the amount for
6 which such notice and demand is made equals or exceeds one hundred thou-
7 sand dollars, the commissioner of taxation and finance may within six
8 years after the date of such assessment issue a warrant under such
9 commissioner's official seal directed to the sheriff of any county of
10 the state, or to any officer or employee of the department of taxation
11 and finance, commanding him or her to levy upon and sell such person's
12 real and personal property for the payment of the amount assessed, with
13 the cost of executing the warrant, and to return such warrant to such
14 commissioner and pay to him or her the money collected by virtue thereof
15 within sixty days after the receipt of the warrant. If such commissioner
16 finds that the collection of the tax or other amount is in jeopardy,
17 notice and demand for immediate payment of such tax may be made by such
18 commissioner and upon failure or refusal to pay such tax or other amount
19 such commissioner may issue a warrant without regard to the twenty-one
20 day period, or ten-day period if applicable, provided in this subdivi-
21 sion.
22 (d) Copy of warrant to be filed and lien to be created. Any sheriff
23 or officer or employee who receives a warrant under subdivision (c) of
24 this section shall within five days thereafter file a copy with the
25 clerk of the appropriate county. The clerk shall thereupon enter in the
26 judgment docket, in the column for judgment debtors, the name of the
27 taxpayer mentioned in the warrant, and in appropriate columns the tax or
28 other amounts for which the warrant is issued and the date when such
29 copy is filed; and such amount shall thereupon be a lien upon the title
30 to and interest in real, personal and other property of the taxpayer.
31 Such lien shall not apply to personal property unless such warrant is
32 filed in the department of state.
33 (e) Judgment. When a warrant has been filed with the county clerk
34 the tax commission shall, in the right of the city, be deemed to have
35 obtained judgment against the taxpayer for the tax or other amounts.
36 (f) Execution. The sheriff or officer or employee shall thereupon
37 proceed upon the warrant in all respects, with like effect, and in the
38 same manner prescribed by law in respect to executions issued against
39 property upon judgments of a court of record, and a sheriff shall be
40 entitled to the same fees for his or her services in executing the
41 warrant, to be collected in the same manner. An officer or employee of
42 the department of taxation and finance may proceed in any county or
43 counties of this state and shall have all the powers of execution
44 conferred by law upon sheriffs, but shall be entitled to no fee or
45 compensation in excess of actual expenses paid in connection with the
46 execution of the warrant.
47 (g) Taxpayer not a resident. Where a notice and demand under subdi-
48 vision (b) of this section shall have been given to a taxpayer who is
49 not then a resident, and it appears to the tax commission that it is not
50 practicable to find in this state property of the taxpayer sufficient to
51 pay the entire balance of tax or other amount owing by such taxpayer who
52 is not then a resident, the tax commission may, in accordance with
53 subdivision (c) of this section, issue a warrant directed to an officer
54 or employee of the department of taxation and finance, a copy of which
55 warrant shall be mailed by certified or registered mail to the taxpayer
56 at his or her last known address, subject to the rules for mailing
S. 8578 1057
1 provided in subdivision (a) of section 11-1781 of this subchapter. Such
2 warrant shall command the officer or employee to proceed in Albany coun-
3 ty, and he or she shall, within five days after receipt of the warrant,
4 file the warrant and obtain a judgment in accordance with this section.
5 Thereupon the tax commission may authorize the institution of any action
6 or proceeding to collect or enforce the judgment in any place and by any
7 procedure that a civil judgment of the supreme court of the state of New
8 York could be collected or enforced. The tax commission may also, in
9 its discretion, designate agents or retain counsel for the purpose of
10 collecting, outside the state of New York, any unpaid taxes, additions
11 to tax, penalties or interest which have been assessed under this chap-
12 ter against taxpayers who are not residents of this state, may fix the
13 compensation of such agents and counsel to be paid out of money appro-
14 priated or otherwise lawfully available for payment thereof, and may
15 require of them bonds or other security for the faithful performance of
16 their duties, in such form and in such amount as the tax commission
17 shall deem proper and sufficient.
18 (h) Action by state for recovery of taxes. Action may be brought by
19 the attorney general at the instance of the tax commission in the name
20 of the city or both to recover the amount of any unpaid taxes, additions
21 to tax, penalties or interest which have been assessed under this chap-
22 ter within six years prior to the date the action is commenced.
23 (i) Release of lien. The tax commission, if it finds that the inter-
24 ests of the city will not thereby be jeopardized, and upon such condi-
25 tions as it may require, may release any property from the lien of any
26 warrant for unpaid taxes, additions to tax, penalties and interest filed
27 pursuant to this section, and such release may be recorded in the office
28 of any recording officer in which such warrant has been filed.
29 § 11-1793 Transferees. (a) General. The liability, at law or in
30 equity, of a transferee of property of a taxpayer for any tax, additions
31 to tax, penalty or interest due under this chapter, shall be assessed,
32 paid, and collected in the same manner and subject to the same
33 provisions and limitations as in the case of the tax to which the
34 liability relates, except that the period of limitations for assessment
35 against the transferee shall be extended by one year for each successive
36 transfer, in order, from the original taxpayer to the transferee
37 involved, but not by more than three years in the aggregate. The term
38 transferee includes donee, heir, legatee, devisee and distributee.
39 (b) Exceptions.
40 (1) If before the expiration of the period of limitations for assess-
41 ment of liability of the transferee, a claim has been filed by the tax
42 commission in any court against the original taxpayer or the last
43 preceding transferee based upon the liability of the original taxpayer,
44 then the period of limitation for assessment of liability of the trans-
45 feree shall in no event expire prior to one year after such claim has
46 been finally allowed, disallowed or otherwise disposed of.
47 (2) If, before the expiration of the time prescribed in subdivision
48 (a) or the immediately preceding paragraph of this subdivision for the
49 assessment of the liability, the tax commission and the transferee have
50 both consented in writing to its assessment after such time, the liabil-
51 ity may be assessed at any time prior to the expiration of the period
52 agreed upon. The period so agreed upon may be extended by subsequent
53 agreements in writing made before the expiration of the period previous-
54 ly agreed upon. For the purpose of determining the period of limitation
55 on credit or refund to the transferee of overpayments of tax made by
56 such transferee or overpayments of tax made by the transferor as to
S. 8578 1058
1 which the transferee is legally entitled to credit or refund, such
2 agreement and any extension thereof shall be deemed an agreement and
3 extension thereof referred to in subdivision (b) of section 11-1787 of
4 this subchapter. If the agreement is executed after the expiration of
5 the period of limitation for assessment against the original taxpayer,
6 then in applying the limitations under subdivision (b) of section
7 11-1787 of this subchapter on the amount of the credit or refund, the
8 periods specified in subdivision (a) of section 11-1787 of this subchap-
9 ter shall be increased by the period from the date of such expiration to
10 the date of the agreement.
11 (c) Deceased transferor. If any person is deceased, the period of
12 limitation for assessment against such person shall be the period that
13 would be in effect if he or she had lived.
14 (d) Evidence. Notwithstanding the provisions of subdivision (e) of
15 section 11-1797 of this subchapter the tax commission shall use its
16 powers to make available to the transferee evidence necessary to enable
17 the transferee to determine the liability of the original taxpayer and
18 of any preceding transferees, but without undue hardship to the original
19 taxpayer or preceding transferee. See subdivision (e) of section
20 11-1789 of this subchapter for rule as to burden of proof.
21 § 11-1794 Jeopardy assessment. (a) Authority for making. If the tax
22 commission believes that the assessment or collection of a deficiency
23 will be jeopardized by delay, it shall, notwithstanding the provisions
24 of sections 11-1781 and 11-1796 of this subchapter, immediately assess
25 such deficiency, together with all interest, penalties and additions to
26 tax provided for by law, and notice and demand shall be made by the tax
27 commission for the payment thereof.
28 (b) Notice of deficiency. If the jeopardy assessment is made before
29 any notice in respect of the tax to which the jeopardy assessment
30 relates has been mailed under section 11-1781 of this subchapter, then
31 the tax commission shall mail a notice under such section within sixty
32 days after the making of the assessment.
33 (c) Amount assessable before decision of tax commission. The jeopardy
34 assessment may be made in respect of a deficiency greater or less than
35 that of which notice is mailed to the taxpayer and whether or not the
36 taxpayer has theretofore filed a petition with the tax commission. The
37 tax commission may, at any time before rendering its decision, abate
38 such assessment, or any unpaid portion thereof, to the extent that it
39 believes the assessment to be excessive in amount. The tax commission
40 may in its decision redetermine the entire amount of the deficiency and
41 of all amounts assessed at the same time in connection therewith.
42 (d) Amount assessable after decision of tax commission. If the
43 jeopardy assessment is made after the decision of the tax commission is
44 rendered, such assessment may be made only in respect of the deficiency
45 determined by the tax commission in its decision.
46 (e) Expiration of right to assess. A jeopardy assessment may not be
47 made after the decision of the tax commission has become final or after
48 the taxpayer has made an application for review of the decision of the
49 tax commission.
50 (f) Collection of unpaid amounts. When a petition has been filed with
51 the tax commission and when the amount which should have been assessed
52 has been determined by a decision of the tax commission which has become
53 final, then any unpaid portion, the collection of which has been stayed
54 by bond, shall be collected as part of the tax upon notice and demand
55 from the tax commission, and any remaining portion of the assessment
56 shall be abated. If the amount already collected exceeds the amount
S. 8578 1059
1 determined as the amount which should have been assessed, such excess
2 shall be credited or refunded to the taxpayer as provided in section
3 11-1786 of this subchapter without the filing of claim therefor. If the
4 amount determined as the amount which should have been assessed is
5 greater than the amount actually assessed, then the difference shall be
6 assessed and shall be collected as part of the tax upon notice and
7 demand from the tax commission.
8 (g) Abatement if jeopardy does not exist. The tax commission may
9 abate the jeopardy assessment if it finds that jeopardy does not exist.
10 Such abatement may not be made after a decision of the tax commission in
11 respect of the deficiency has been rendered or, if no petition is filed
12 with the tax commission, after the expiration of the period for filing
13 such petition. The period of limitation on the making of assessments
14 and levy or a proceeding for collection, in respect of any deficiency,
15 shall be determined as if the jeopardy assessment so abated had not been
16 made, except that the running of such period shall in any event be
17 suspended for the period from the date of such jeopardy assessment until
18 the expiration of the tenth day after the day on which such jeopardy
19 assessment is abated.
20 (h) Bond to stay collection. The collection of the whole or any
21 amount of any jeopardy assessment may be stayed by filing with the tax
22 commission, within such time as may be fixed by regulation, a bond in an
23 amount equal to the amount as to which the stay is desired, conditioned
24 upon the payment of the amount, together with interest thereon, the
25 collection of which is stayed at the time at which, but for the making
26 of the jeopardy assessment, such amount would be due. Upon the filing
27 of the bond the collection of so much of the amount assessed as is
28 covered by the bond shall be stayed. The taxpayer shall have the right
29 to waive such stay at any time in respect of the whole or any part of
30 the amount covered by the bond, and if as a result of such waiver any
31 part of the amount covered by the bond is paid, then the bond shall at
32 the request of the taxpayer, be proportionately reduced. If any portion
33 of the jeopardy assessment is abated, or if a notice of deficiency under
34 section 11-1781 of this subchapter is mailed to the taxpayer in a lesser
35 amount, the bond shall, at the request of the taxpayer, be proportion-
36 ately reduced.
37 (i) Petition to tax commission. If the bond is given before the
38 taxpayer has filed his or her petition under section 11-1789 of this
39 subchapter, the bond shall contain a further condition that if a peti-
40 tion is not filed within the period provided in such section, then the
41 amount, the collection of which is stayed by the bond, will be paid on
42 notice and demand at any time after the expiration of such period,
43 together with interest thereon from the date of the jeopardy notice and
44 demand to the date of notice and demand under this subdivision. The
45 bond shall be conditioned upon the payment of so much of such assess-
46 ment, collection of which is stayed by the bond, as is not abated by a
47 decision of the tax commission which has become final. If the tax
48 commission determines that the amount assessed is greater than the
49 amount which should have been assessed, then the bond shall, at the
50 request of the taxpayer, be proportionately reduced when the decision of
51 the tax commission is rendered.
52 (j) Stay of sale of seized property pending tax commission decision.
53 Where a jeopardy assessment is made, the property seized for the
54 collection of the tax shall not be sold:
55 (1) if subdivision (b) of this section is applicable, prior to the
56 issuance of the notice of deficiency and the expiration of the time
S. 8578 1060
1 provided in section 11-1789 of this subchapter for filing a petition
2 with the tax commission, and
3 (2) if a petition is filed with the tax commission, whether before or
4 after the making of such jeopardy assessment, prior to the expiration of
5 the period during which the assessment of the deficiency would be
6 prohibited if subdivision (a) of this section were not applicable.
7 Such property may be sold if the taxpayer consents to the sale, or if
8 the tax commission determines that the expenses of conservation and
9 maintenance will greatly reduce the net proceeds, or if the property is
10 perishable.
11 (k) Interest. For the purpose of subdivision (a) of section 11-1784
12 of this subchapter, the last date prescribed for payment shall be deter-
13 mined without regard to any notice and demand for payment issued under
14 this section prior to the last date otherwise prescribed for such
15 payment.
16 (l) Early termination of taxable year. If the tax commission finds
17 that a taxpayer designs quickly to depart from this state or to remove
18 his or her property therefrom, or to conceal himself or herself or his
19 or her property therein, or to do any other act tending to prejudice or
20 to render wholly or partly ineffectual proceedings to collect the city
21 personal income tax for the current or the preceding taxable year unless
22 such proceedings be brought without delay, the tax commission shall
23 declare the taxable period for such taxpayer immediately terminated, and
24 shall cause notice of such finding and declaration to be given the
25 taxpayer, together with a demand for immediate payment of the tax for
26 the taxable period so declared terminated and of the tax for the preced-
27 ing taxable year or so much of such tax as is unpaid, whether or not the
28 time otherwise allowed by law for filing return and paying the tax has
29 expired; and such taxes shall thereupon become immediately due and paya-
30 ble. In any proceeding brought to enforce payment of taxes made due and
31 payable by virtue of the provisions of this subdivision, the finding of
32 the tax commission made as herein provided, whether made after notice to
33 the taxpayer or not, shall be for all purposes presumptive evidence of
34 jeopardy.
35 (m) Reopening of taxable period. Notwithstanding the termination of
36 the taxable period of the taxpayer by the tax commission, as provided in
37 subdivision (1) of this section, the tax commission may reopen such
38 taxable period each time the taxpayer is found by the tax commission to
39 have received income, within the current taxable year, since the termi-
40 nation of such period. A taxable period so terminated by the tax
41 commission may be reopened by the taxpayer if he or she files with the
42 tax commission a true and accurate return of taxable income and credits
43 allowed under this chapter for such taxable period, together with such
44 other information as the tax commission may by regulations prescribe.
45 (n) Furnishing of bond where taxable year is closed by the tax
46 commission. Payment of taxes shall not be enforced by any proceedings
47 under the provisions of subdivision (1) of this section prior to the
48 expiration of the time otherwise allowed for paying such taxes if the
49 taxpayer furnishes, under regulations prescribed by the tax commission,
50 a bond to insure the timely making of returns with respect to, and
51 payment of, such taxes or any city personal income taxes for prior
52 years.
53 § 11-1795 Criminal penalties; cross-reference. For criminal penal-
54 ties, see article thirty-seven of the tax law.
55 § 11-1796 Income taxes of members of armed forces and victims of
56 certain terrorist attacks. (a) Time to be disregarded. In the case of
S. 8578 1061
1 an individual serving in the armed forces of the United States, or serv-
2 ing in support of such armed forces, in an area designated by the presi-
3 dent of the United States by executive order as a "combat zone" at any
4 time during the period designated by the president by executive order as
5 the period of combatant activities in such zone, or hospitalized inside
6 or outside the state as a result of injury received while serving in
7 such an area during such time, the period of service in such area, plus
8 the period of continuous hospitalization inside or outside the state
9 attributable to such injury, and the next one hundred eighty days there-
10 after, shall be disregarded in determining, under this chapter, in
11 respect of the city personal income tax liability, including any inter-
12 est, penalty, or addition to the tax, of such individual:
13 (1) Whether any of the following acts was performed within the time
14 prescribed therefor:
15 (A) filing any return of income tax, except withholding tax;
16 (B) payment of any income tax, except withholding tax, or any install-
17 ment thereof or of any other liability in respect thereof;
18 (C) filing a petition with the tax commission for credit or refund or
19 for redetermination of a deficiency, or application for review of a
20 decision rendered by the tax commission;
21 (D) allowance of a credit or refund of city personal income tax;
22 (E) filing a claim for credit or refund of city personal income tax;
23 (F) assessment of city personal income tax;
24 (G) giving or making any notice or demand for the payment of any city
25 personal income tax, or with respect to any liability to the city in
26 respect of such income tax;
27 (H) collection, by the tax commission, by levy or otherwise of the
28 amount of any liability in respect of such income tax;
29 (I) bringing suit by the city, the state, or any officer, on their
30 behalf, in respect of any liability in respect of such income tax; and
31 (J) any other act required or permitted under this chapter or speci-
32 fied in regulations prescribed under this section by the tax commission.
33 (2) The amount of any credit or refund.
34 (b) Special rule for overpayments. (1) Subdivision (a) of this section
35 shall not apply for purposes of determining the amount of interest on
36 any overpayment of tax.
37 (2) If an individual is entitled to the benefits of subdivision (a) of
38 this section with respect to any return, amended return, or claim for
39 credit or refund, and such return, amended return or claim is timely
40 filed, determined after the application of such subdivision, paragraph
41 three of subdivision (a) and subdivision (c) of section 11-1788 of this
42 subchapter of this title shall not apply.
43 (c) Action taken before ascertainment of right to benefits. The
44 assessment or collection of the tax imposed by this chapter or of any
45 liability in respect of such tax, or any action or proceeding by or on
46 behalf of the city in connection therewith, may be made, taken, begun,
47 or prosecuted in accordance with law, without regard to the provisions
48 of subdivision (a) of this section, unless prior to such assessment,
49 collection, action, or proceeding it is ascertained that the person
50 concerned is entitled to the benefits of subdivision (a) of this
51 section.
52 (d) Members of armed forces dying in action. In the case of any person
53 who dies while in active service as a member of the armed forces of the
54 United States, if such death occurred while serving in a combat zone
55 during a period of combatant activities in such zone, as described in
56 subdivision (a) of this section, or as a result of wounds, disease or
S. 8578 1062
1 injury incurred while so serving, the tax imposed by this chapter shall
2 not apply with respect to the taxable year in which falls the date of
3 his or her death, or with respect to any prior taxable year ending on or
4 after the first day so served in a combat zone, and no returns shall be
5 required in behalf of such person or his or her estate for such year;
6 and the tax for any such taxable year which is unpaid at the date of
7 death, including interest, additions to tax and penalties, if any, shall
8 not be assessed and, if assessed, the assessment shall be abated and, if
9 collected, shall be refunded to the legal representative of such estate
10 if one has been appointed and has qualified, or, if no legal represen-
11 tative has been appointed or has qualified, to the surviving spouse.
12 (e) Treatment of individuals performing Desert Shield services. (1)
13 Any individual who performed Desert Shield services shall be entitled to
14 the benefits of subdivisions (a) and (b) of this section in the same
15 manner as if such services were services referred to in subdivision (a)
16 of this section.
17 (2) For purposes of this subdivision, the term "Desert Shield
18 services" means any services in the armed forces of the United States or
19 in support of such armed forces if
20 (A) such services are performed in the area designated by the presi-
21 dent of the United States as the "Persian Gulf Desert Shield area", and
22 (B) such services are performed during the period beginning on August
23 second, nineteen hundred ninety, and ending on the date on which any
24 portion of the area referred to in subparagraph (A) of this paragraph is
25 designated by the president as a combat zone pursuant to section one
26 hundred twelve of the internal revenue code.
27 (f) Relief for personnel under hostile fire. For purposes of this
28 section, members of the armed forces of the United States who perform
29 military service in an area outside an area designated by the president
30 of the United States by executive order as a "combat zone", which
31 service is in direct support of military operations in such zone and is
32 performed under conditions which qualify such members for hostile fire
33 pay, as authorized under subdivision (a) of section nine of the federal
34 uniformed services pay act of nineteen hundred sixty-three, shall,
35 during the period of such qualifying service, be deemed to have served
36 in such combat zone.
37 (g) Application to spouse. The provisions of subdivisions (a), (b),
38 (c), (e) and (f) of this section shall apply to the spouse of any indi-
39 vidual entitled to the benefits of subdivision (a) of this section;
40 provided, however, that such subdivisions shall not apply for any spouse
41 for any taxable year beginning more than two years after the date desig-
42 nated under section one hundred twelve of the internal revenue code as
43 the date of termination of combatant activities in a combat zone.
44 (h) Individuals dying as a result of certain attacks. (1) General. In
45 the case of a specified terrorist victim, any tax imposed by this chap-
46 ter shall not apply: (A) with respect to the taxable year in which
47 falls the date of death; and (B) with respect to any prior taxable year
48 in the period beginning with the last taxable year ending before the
49 taxable year in which the wounds or injury referred to in paragraph
50 three of this subdivision were incurred.
51 (2) Taxation of certain benefits. Paragraph one of this subdivision
52 shall not apply to the amount of any tax imposed by this chapter which
53 would be computed by only taking into account the items of income, gain,
54 or other amounts determined by the United States secretary of the treas-
55 ury to be taxable pursuant to paragraph three of subdivision (d) of
56 section six hundred ninety-two of the internal revenue code.
S. 8578 1063
1 (3) Specified terrorist victim. For purposes of this subdivision, the
2 term "specified terrorist victim" means any decedent who dies as a
3 result of wounds or injury incurred as a result of the terrorist attacks
4 against the United States on September eleventh, two thousand one,
5 provided, however, such term shall not include any individual identified
6 by the attorney general of the United States to have been a participant
7 or conspirator in any such attack or a representative of such an indi-
8 vidual.
9 § 11-1797 General powers of tax commission. (a) General. The tax
10 commission shall administer and enforce the tax imposed by this chapter
11 and it is authorized to make such rules and regulations, and to require
12 such facts and information to be reported, as it may deem necessary to
13 enforce the provisions of this chapter.
14 (b) Examination of books and witnesses. (1) The tax commission for the
15 purpose of ascertaining the correctness of any return, or for the
16 purpose of making an estimate of taxable income of any person, shall
17 have power to examine or to cause to have examined, by any agent or
18 representative designated by it for that purpose, any books, papers,
19 records or memoranda bearing upon the matters required to be included in
20 the return, and may require the attendance of the person rendering the
21 return or any officer or employee of such person, or the attendance of
22 any other person having knowledge in the premises, and may take testimo-
23 ny and require proof material for its information, with power to admin-
24 ister oaths to such person or persons.
25 (2) The tax commission may take any action under paragraph one of this
26 subdivision to inquire into the commission of any offense connected with
27 the administration or enforcement of this chapter, provided, however,
28 that notwithstanding the provisions of section 11-1774 of this chapter
29 no such action shall be taken after a referral by the department or the
30 tax commission to the attorney general, a district attorney or any other
31 prosecutorial agency is in effect.
32 (c) Abatement authority. The tax commission, of its own motion, may
33 abate any small unpaid balance of an assessment of city personal income
34 tax, or any liability in respect thereof, if the tax commission deter-
35 mines under uniform rules prescribed by it that the administration and
36 collection costs involved would not warrant collection of the amount
37 due. It may also abate, of its own motion, the unpaid portion of the
38 assessment of any tax or any liability in respect thereof, which is
39 excessive in amount, or is assessed after the expiration of the period
40 of limitation properly applicable thereto, or is erroneously or illegal-
41 ly assessed. No claim for abatement under this subdivision shall be
42 filed by a taxpayer.
43 (d) Special refund authority. Where no questions of fact or law are
44 involved and it appears from the records of the tax commission that any
45 moneys have been erroneously or illegally collected from any taxpayer or
46 other person, or paid by such taxpayer or other person under a mistake
47 of facts, pursuant to the provisions of this chapter, the tax commission
48 at any time, without regard to any period of limitations, shall have the
49 power, upon making a record of its reasons therefor in writing, to cause
50 such moneys so paid and being erroneously and illegally held to be
51 refunded and to issue therefor its certificate to the comptroller.
52 (e) Secrecy requirement and penalties for violation. (1) Except in
53 accordance with proper judicial order or as otherwise provided by law,
54 it shall be unlawful for the tax commission, any tax commissioner, any
55 officer or employee of the department of taxation and finance, any
56 person engaged or retained by such department on an independent contract
S. 8578 1064
1 basis, any depositary to which any return may be delivered as provided
2 in subdivision (h) or (i) of this section, any officer or employee of
3 such depositary, or any person who, pursuant to this section, is permit-
4 ted to inspect any report or return or to whom a copy, an abstract or a
5 portion of any report or return is furnished, or to whom any information
6 contained in any report or return is furnished, to divulge or make known
7 in any manner the amount of income or any particulars set forth or
8 disclosed in any report or return required under this chapter.
9 (2) The officers charged with the custody of such reports and returns
10 shall not be required to produce any of them or evidence of anything
11 contained in them in any action or proceeding in any court, except on
12 behalf of the tax commission in an action or proceeding under the
13 provisions of this chapter, the tax law or in any other action or
14 proceeding involving the collection of a tax due under this chapter or
15 such tax law to which the city, state or the tax commission is a party
16 or a claimant, or on behalf of any party to any action or proceeding
17 under the provisions of this chapter when the reports, returns or facts
18 shown thereby are directly involved in such action or proceeding, in any
19 of which events the court may require the production of, and may admit
20 in evidence, so much of said reports, returns or of the facts shown
21 thereby, as are pertinent to the action or proceeding and no more. The
22 tax commission may, nevertheless, publish a copy or a summary of any
23 decision rendered after the hearing required under section 11-1789 of
24 this subchapter.
25 (3) Nothing in this section shall be construed to prohibit the deliv-
26 ery by the state commissioner of taxation and finance to the county
27 clerk of a county within the city of New York of a mailing list of indi-
28 viduals to whom income tax forms are mailed by the state commissioner of
29 taxation and finance for the sole purpose of compiling a list of
30 prospective jurors as provided in article sixteen of the judiciary law.
31 Provided, however, such delivery shall only be made pursuant to an order
32 of the chief administrator of the courts, appointed pursuant to section
33 two hundred ten of such law. No such order may be issued unless such
34 chief administrator is satisfied that such mailing list is needed to
35 compile a proper list of prospective jurors for the county for which
36 such order is sought and that, in view of the responsibilities imposed
37 by the various laws of the state on the department of taxation and
38 finance, it is reasonable to require the state commissioner of taxation
39 and finance to furnish such list. Such order shall provide that such
40 list shall be used for the sole purpose of compiling a list of prospec-
41 tive jurors and that such county clerk shall take all necessary steps to
42 insure that the list is kept confidential and that there is no unauthor-
43 ized use or disclosure of such list. Furthermore, nothing in this
44 section shall be construed to prohibit the delivery to a taxpayer or his
45 or her duly authorized representative of a certified copy of any return
46 or report filed in connection with his or her tax or to prohibit the
47 publication of statistics so classified as to prevent the identification
48 of particular reports or returns and the items thereof, or the
49 inspection by the attorney general or other legal representatives of the
50 state or city of the report or return of any taxpayer who shall bring
51 action to set aside or review the tax based thereon, or against whom an
52 action or proceeding under this chapter has been recommended by the
53 commissioner of taxation and finance, the corporation counsel or the
54 attorney general or has been instituted, or the inspection of the
55 reports or returns required under this chapter by the comptroller or
56 duly designated officer or employee of the state department of audit and
S. 8578 1065
1 control, for purposes of the audit of a refund of any tax paid by a
2 taxpayer under this chapter, or the furnishing to the state department
3 of social services of the amount of an overpayment of tax and interest
4 thereon certified to the comptroller to be credited against past-due
5 support pursuant to section one hundred seventy-one-c of the tax law and
6 of the name and social security number of the taxpayer who made such
7 overpayment or the furnishing to the New York state higher education
8 services corporation of the amount of an overpayment of tax and interest
9 thereon certified to the comptroller to be credited against the amount
10 of a default in repayment of a guaranteed student loan pursuant to
11 section one hundred seventy-one-d of the tax law and of the name and
12 social security number of the taxpayer who made such overpayment or the
13 furnishing to the state university of New York or the city university of
14 New York or the attorney general on behalf of such state or city univer-
15 sity the amount of an overpayment of tax and interest thereon certified
16 to the comptroller to be credited against the amount of a default in
17 repayment of a state university loan or city university loan pursuant to
18 section one hundred seventy-one-e of the tax law and of the name and
19 social security number of the taxpayer who made such overpayment, or the
20 disclosing to a state agency, pursuant to section one hundred seventy-
21 one-f of the tax law, of the amount of an overpayment and interest ther-
22 eon certified to the comptroller to be credited against a past-due
23 legally enforceable debt owed to such agency and of the name and social
24 security number of the taxpayer who made such overpayment, or the
25 disclosing to the commissioner of finance of the city of New York,
26 pursuant to section one hundred seventy-one-1 of the tax law, of the
27 amount of an overpayment and interest thereon certified to the comp-
28 troller to be credited against a city of New York tax warrant judgment
29 debt and of the name and social security number of the taxpayer who made
30 such overpayment. Reports and returns shall be preserved for three years
31 and thereafter until the state commissioner of taxation and finance
32 orders them to be destroyed.
33 (3-a) Notwithstanding the provisions of paragraph one of this subdivi-
34 sion, the state commissioner of taxation and finance or the commissioner
35 of finance may disclose to a taxpayer or a taxpayer's related member, as
36 defined in subdivision (t) of section 11-1712 of this chapter, informa-
37 tion relating to any royalty paid, incurred or received by such taxpayer
38 or related member to or from the other, including the treatment of such
39 payments by the taxpayer or the related member in any report or return
40 transmitted to the state commissioner of taxation and finance under this
41 chapter or the New York state tax law or the commissioner of finance
42 under this title.
43 (4) (A) Any officer or employee of the state, who willfully violates
44 the provisions of this subdivision shall be dismissed from office and be
45 incapable of holding any public office in this state for a period of
46 five years thereafter.
47 (B) Cross-reference: For criminal penalties, see article thirty-seven
48 of the tax law.
49 (f) Cooperation with the United States and other states. Notwith-
50 standing the provisions of subdivision (e) of this section, the tax
51 commission may permit the secretary of the treasury of the United States
52 or his or her delegates, or the proper tax officer of any state imposing
53 an income tax upon the incomes of individuals, or the authorized repre-
54 sentative of either such officer, to inspect any return filed under this
55 chapter, or may furnish to such officer or his or her authorized repre-
56 sentative an abstract of any such return or supply him or her with
S. 8578 1066
1 information concerning an item contained in any such return, or
2 disclosed by any investigation of tax liability under this chapter, but
3 such permission shall be granted or such information furnished to such
4 officer or his or her representative only if the laws of the United
5 States or of such other state, as the case may be, grant substantially
6 similar privileges to the commission or officer of this state charged
7 with the administration of the tax imposed by this chapter and such
8 information is to be used for tax purposes only; and provided further
9 the commissioner of taxation and finance may furnish to the commissioner
10 of internal revenue or his or her authorized representative such returns
11 filed under this chapter and other tax information, as he or she may
12 consider proper, for use in court actions or proceedings under the
13 internal revenue code, whether civil or criminal, where a written
14 request therefor has been made to the commissioner of taxation and
15 finance by the secretary of the treasury of the United States or his or
16 her delegates, provided the laws of the United States grant substantial-
17 ly similar powers to the secretary of the treasury of the United States
18 or his or her delegates. Where the commissioner of taxation and finance
19 has so authorized use of returns and other information in such actions
20 or proceedings, officers and employees of the department of taxation and
21 finance may testify in such actions or proceedings in respect to such
22 returns or other information.
23 (g) Cooperation with the cities of the state of New York. Notwith-
24 standing the provisions of subdivision (e) of this section, the tax
25 commission may permit the proper city officer of any city of the state
26 of New York imposing a personal income tax upon the incomes of resi-
27 dents, or an unincorporated business income tax, or an earnings tax on
28 nonresidents, or the authorized representative of any such officer, to
29 inspect any return filed under this chapter, or may furnish to such
30 officer or his or her authorized representative an abstract of any such
31 return or supply him or her with information concerning an item
32 contained in any such return, or disclosed by any investigation of tax
33 liability under this chapter, but such permission shall be granted or
34 such information furnished to such officer or his or her representative
35 only if the local laws of such city grant substantially similar privi-
36 leges to the commission or officer of this state charged with the admin-
37 istration of the tax imposed by this chapter and such information is to
38 be used for tax purposes only; and provided further the commissioner of
39 taxation and finance may furnish to such city officer or the legal
40 representative of such city such returns filed under this chapter and
41 other tax information, as he or she may consider proper, for use in
42 court actions or proceedings under such local law, whether civil or
43 criminal, where a written request therefor has been made to the commis-
44 sioner of taxation and finance by such city officer or his or her dele-
45 gate, provided the local law of such city grants substantially similar
46 powers to such city officer or his or her delegate. Where the commis-
47 sioner of taxation and finance has so authorized use of returns and
48 other information in such actions or proceedings, officers and employees
49 of the department of taxation and finance may testify in such actions or
50 proceedings in respect to such returns or other information.
51 (h) Withholding returns. Notwithstanding the provisions of subdivision
52 (e) of this section the tax commission in its discretion, when making
53 deposits, pursuant to section 11-1798 of this subchapter, of taxes with-
54 held by employers, may deliver to the depositary the withholding returns
55 filed by such employers as provided in section 11-1774 of this chapter,
S. 8578 1067
1 for the purpose of insuring that all money so deposited shall be
2 correctly credited to taxpayers' accounts.
3 (i) Filing returns and making payments to depository banks. Notwith-
4 standing the provisions of subdivision (e) of this section, the tax
5 commission, in its discretion, may require or permit any or all individ-
6 uals, estates or trusts liable for any tax imposed by this chapter, to
7 make payments on account of estimated tax and payment of any tax, penal-
8 ty or interest imposed by this chapter to banks, banking houses or trust
9 companies designated by the tax commission and to file reports and
10 returns with such banks, banking houses or trust companies as agents of
11 the tax commission, in lieu of making any such payment to the tax
12 commission. However, the tax commission shall designate only such banks,
13 banking houses or trust companies as are or shall be designated by the
14 comptroller as depositories pursuant to section 11-1798 of this subchap-
15 ter.
16 (j) (1) Authority to set interest rates. The commissioner of taxation
17 and finance shall set the overpayment and underpayment rates of interest
18 to be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this
19 subchapter, but if no such rates of interest are set, such overpayment
20 rate shall be deemed to be set at six percent per annum and the under-
21 payment rate shall be deemed to be set at seven and one-half per annum.
22 Such rates shall be the rates prescribed by paragraphs two and four of
23 this subdivision, but shall not be less than seven and one-half percent
24 per annum. Any such rates set by such commissioner shall apply to taxes,
25 or any portion thereof, which remain or become due or overpaid on or
26 after the date on which such rates become effective and shall apply only
27 with respect to interest computed or computable for periods or portions
28 of periods occurring in the period during which such rates are in
29 effect.
30 (1) Authority to set interest rates. The commissioner of taxation and
31 finance shall set the overpayment and underpayment rates of interest to
32 be paid pursuant to sections 11-1784, 11-1785 and 11-1788 of this
33 subchapter, but if no such rates of interest are set, such rates shall
34 be deemed to be set at six percent per annum. Such rates shall be the
35 rates prescribed by paragraphs two and four of this subdivision, but the
36 underpayment rate shall not be less than six percent per annum. Any such
37 rates set by such commissioner shall apply to taxes, or any portion
38 thereof, which remain or become due or overpaid on or after the date on
39 which such rates become effective and shall apply only with respect to
40 interest computed or computable for periods or portions of periods
41 occurring in the period during which such rates are in effect.
42 (2) Rates of interest. (A) Overpayment rate. The overpayment rate of
43 interest set under this subdivision shall be the sum of (i) the federal
44 short-term rate as provided under paragraph three of this subdivision,
45 plus (ii) two percentage points.
46 (B) Underpayment rate. The underpayment rate of interest set under
47 this subdivision shall be the sum of (i) the federal short-term rate as
48 provided under paragraph three of this subdivision, plus (ii) five and
49 one-half percentage points.
50 (3) Federal short-term rate. For the purposes of this subdivision:
51 (A) The federal short-term rate for any month shall be the federal
52 short-term rate determined by the United States secretary of the treas-
53 ury during such month in accordance with subsection (d) of section
54 twelve hundred seventy-four of the internal revenue code for use in
55 connection with section six thousand six hundred twenty-one of the
56 internal revenue code. Any such rate shall be rounded to the nearest
S. 8578 1068
1 full percent, or, if a multiple of one-half of one percent, such rate
2 shall be increased to the next highest full percent.
3 (B) Period during which rate applies.
4 (i) In general. Except as provided in clauses (ii) and (iii) of this
5 subparagraph, the federal short-term rate for the first month in each
6 calendar quarter shall apply during the first calendar quarter beginning
7 after such month.
8 (ii) Special rule for individual estimated tax. In determining the
9 addition to tax under subdivision (c) of section 11-1785 of this
10 subchapter for failure to pay estimated tax for any taxable year, the
11 federal short-term rate which applies during the third month following
12 the taxable year shall also apply during the first fifteen days of the
13 fourth month following such taxable year.
14 (iii) Special rule for the month of September, nineteen hundred eight-
15 y-nine. The federal short-term rate for the month of April, nineteen
16 hundred eighty-nine shall apply with respect to setting the rate of
17 interest for the month of September, nineteen hundred eighty-nine.
18 (4) Notwithstanding the provisions of paragraph two of this subdivi-
19 sion to the contrary, in the case of interest payable by an employer
20 with respect to income taxes required to be withheld and paid over by
21 him or her pursuant to the provisions of subchapter four of this chapter
22 and with respect to interest payable to an employer pursuant to subdivi-
23 sion (c) of section 11-1786 of this subchapter, the rates of interest
24 prescribed by this section shall be the overpayment and underpayment
25 rates of interest prescribed in paragraph two of subsection (e) of
26 section one thousand ninety-six of the tax law.
27 (5) In computing the amount of any interest required to be paid under
28 this article by the commissioner of taxation and finance or by the
29 taxpayer, or any other amount determined by reference to such amount of
30 interest, such interest and such amount shall be compounded daily. The
31 provisions of this paragraph shall not apply for purposes of computing
32 the amount of any addition to tax for failure to pay estimated tax under
33 subdivision (c) of section 11-1785 of this subchapter.
34 (6) Publication of interest rates. The commissioner of taxation and
35 finance shall cause to be published in the section for miscellaneous
36 notices in the state register, and give other appropriate general notice
37 of, the interest rates to be set under this subdivision no later than
38 twenty days preceding the first day of the calendar quarter during which
39 such interest rates apply. The setting and publication of such interest
40 rates shall not be included within paragraph (a) of subdivision two of
41 section one hundred two of the state administrative procedure act relat-
42 ing to the definition of a rule.
43 (7) Cross-reference. For provisions relating to the power of the
44 commissioner of taxation and finance to abate small amounts of interest,
45 see subdivision (c) of this section.
46 (k) Disclosure of collection activities with respect to joint return.
47 Notwithstanding the provisions of subdivision (e) of this section, if
48 any deficiency of tax with respect to a joint return is assessed and the
49 individuals filing such return are no longer married or no longer reside
50 in the same household, upon request in writing by either of such indi-
51 viduals, the commissioner of taxation and finance shall disclose in
52 writing to the individual making the request whether such commissioner
53 has attempted to collect such deficiency from such other individual, the
54 general nature of such collection activities, and the amount collected.
55 The opening paragraph of this subdivision shall not apply to any defi-
56 ciency which may not be collected by reason of expiration of time within
S. 8578 1069
1 which to issue a warrant under subdivision (c) of section 11-1792 of
2 this subchapter or within which to collect such tax by execution and
3 levy or by court proceeding.
4 (l) Disclosure of certain information where more than one person is
5 subject to penalty. If the commissioner of taxation and finance deter-
6 mines that a person is liable for a penalty under subdivision (g) of
7 section 11-1785 of this subchapter with respect to any failure, upon
8 request in writing of such person, such commissioner shall disclose in
9 writing to such person (1) the name of any other person whom such
10 commissioner has determined to be liable for such penalty with respect
11 to such failure, and (2) whether such commissioner has attempted to
12 collect such penalty from such other person, the general nature of such
13 collection activities, and the amount collected.
14 (m) (1) Notwithstanding the provisions of subdivision (e) of this
15 section, upon written request from the chairperson of the committee on
16 ways and means of the United States House of Representatives, the chair-
17 person of the committee on finance of the United States Senate, or the
18 chairperson of the joint committee on taxation of the United States
19 Congress, the commissioner of taxation and finance shall furnish such
20 committee with any current or prior year returns specified in such
21 request that were filed under this article by the president of the
22 United States, vice-president of the United States, member of the United
23 States Congress representing New York state, or any person who served in
24 or was employed by the executive branch of the government of the United
25 States on the executive staff of the president, in the executive office
26 of the president, or in an acting or confirmed capacity in a position
27 subject to confirmation by the United States senate; or, in New York
28 state: a statewide elected official, as defined in paragraph (a) of
29 subdivision one of section seventy-three-a of the public officers law; a
30 state officer or employee, as defined in subparagraph (i) of paragraph
31 (c) of subdivision one of such section seventy-three-a; a political
32 party chairperson, as defined in paragraph (h) of subdivision one of
33 such section seventy-three-a; a local elected official, as defined in
34 subdivisions one and two of section eight hundred ten of the general
35 municipal law; a person appointed, pursuant to law, to serve due to
36 vacancy or otherwise in the position of a local elected official, as
37 defined in subdivisions one and two of section eight hundred ten of the
38 general municipal law; a member of the state legislature; or a judge or
39 justice of the unified court system; provided however that, prior to
40 furnishing any return, the commissioner shall redact any copy of a
41 federal return, or portion thereof, attached to, or any information on a
42 federal return that is reflected on, such return, and any social securi-
43 ty numbers, account numbers and residential address information.
44 (2) No returns shall be furnished pursuant to this subdivision unless
45 the chairperson of the requesting committee certifies in writing that
46 such returns have been requested related to, and in furtherance of, a
47 legitimate task of the Congress, that the requesting committee has made
48 a written request to the United States secretary of the treasury for
49 related federal reports or returns or report or return information,
50 pursuant to 26 U.S.C. Section 6103(f), and that if such requested
51 returns are inspected by and/or submitted to another committee, to the
52 United States House of Representatives, or to the United States Senate,
53 then such inspection and/or submission shall occur in a manner consist-
54 ent with federal law as informed by the requirements and procedures
55 established in 26 U.S.C. Section 6103(f).
S. 8578 1070
1 § 11-1798 Deposit and disposition of revenues. All revenue collected
2 by the state commissioner of taxation and finance from the taxes imposed
3 pursuant to this chapter or chapter nineteen of this title shall be
4 deposited daily with such responsible banks, banking houses or trust
5 companies, as may be designated by the state comptroller, to the credit
6 of the comptroller, in trust for the city. Such deposits shall be kept
7 in trust and separate and apart from all other moneys in the possession
8 of the comptroller. The state comptroller shall require adequate securi-
9 ty from all such depositories of such revenue collected by the state
10 commissioner of taxation and finance. The state comptroller shall retain
11 in his or her hands such amounts as the commissioner of taxation and
12 finance may determine to be necessary for refunds in respect to the
13 taxes imposed by this chapter and such chapter nineteen and for reason-
14 able costs of the state commissioner of taxation and finance in adminis-
15 tering, collecting and distributing such taxes, out of which the comp-
16 troller shall pay any refunds of such taxes to which taxpayers shall be
17 entitled under this chapter and such chapter nineteen and except further
18 that he or she shall pay to a non-obligated spouse that amount of over-
19 payment of tax imposed pursuant to the authority of article thirty of
20 the tax law or former article two-E of the general city law and the
21 interest on such amount which has been credited pursuant to section one
22 hundred seventy-one-c, one hundred seventy-one-d, one hundred seventy-
23 one-e, one hundred seventy-one-f or one hundred seventy-one-l of the tax
24 law and which is certified to him or her by the commissioner of taxation
25 and finance as the amount due such non-obligated spouse pursuant to
26 paragraph six of subsection (b) of section six hundred fifty-one of the
27 tax law, and he or she shall deduct a like amount which he shall pay
28 into the treasury to the credit of the general fund from amounts subse-
29 quently payable to the department of social services, the state univer-
30 sity of New York, the city university of New York, the higher education
31 services corporation, or to the revenue arrearage account or special
32 offset fiduciary account pursuant to section ninety-one-a or
33 ninety-one-c of the state finance law, as the case may be, whichever had
34 been credited the amount originally withheld from such overpayment and,
35 with respect to amounts originally withheld from such overpayment pursu-
36 ant to section one hundred seventy-one-l of the tax law and paid to the
37 city of New York, the comptroller shall collect a like amount from the
38 city of New York. The state comptroller, after reserving such refund
39 fund and such costs shall, on or before the fifteenth day of each month,
40 pay to the chief fiscal officer of the city the balance of such taxes
41 collected, to be paid into the treasury of the city to the credit of the
42 general fund except that he or she shall pay to the state department of
43 social services that amount of overpayments of the taxes imposed pursu-
44 ant to this chapter or chapter nineteen of this title and the interest
45 on such amount which is certified to him or her by the state commission-
46 er of taxation and finance as the amount to be credited against past-due
47 support pursuant to subdivision six of section one hundred seventy-one-c
48 of the tax law and except that he or she shall pay to the New York state
49 higher education services corporation that amount of overpayments of the
50 taxes imposed pursuant to this chapter or chapter nineteen of this title
51 and the interest on such amount which is certified to him or her by the
52 state commissioner of taxation and finance as the amount to be credited
53 against the amount of defaults in repayment of guaranteed student loans
54 pursuant to subdivision five of section one hundred seventy-one-d of the
55 tax law and except that he or she shall pay to the state university of
56 New York or the city university of New York, respectively, that amount
S. 8578 1071
1 of overpayments of the taxes imposed pursuant to this chapter or chapter
2 nineteen of this title and the interest on such amount which is certi-
3 fied to him or her by the state commissioner of taxation and finance as
4 the amount to be credited against the amount of defaults in repayment of
5 state university or city university loans pursuant to subdivision six of
6 section one hundred seventy-one-e of the tax law, and except further
7 that, notwithstanding any other provision of law, he or she shall credit
8 to the revenue arrearage account, pursuant to section ninety-one-a of
9 the state finance law, that amount of overpayments of the taxes imposed
10 pursuant to this chapter or chapter nineteen of this title and the
11 interest on such amount which is certified to him or her by the state
12 commissioner of taxation and finance as the amount to be credited
13 against a past-due legally enforceable debt owed to a state agency
14 pursuant to paragraph (a) of subdivision six of section one hundred
15 seventy-one-f of the tax law, provided, however, he or she shall credit
16 to the special offset fiduciary account, pursuant to section
17 ninety-one-c of the state finance law, any such amount creditable as a
18 liability as set forth in paragraph (b) of subdivision six of section
19 one hundred seventy-one-f of the tax law, and except further that he or
20 she shall pay to the city of New York that amount of overpayments of tax
21 imposed pursuant to this chapter or chapter nineteen of this title and
22 the interest on such amount which is certified to him or her by the
23 state commissioner of taxation and finance as the amount to be credited
24 against city of New York tax warrant judgment debt pursuant to section
25 one hundred seventy-one-l of the tax law. The amount deducted for admin-
26 istering, collecting and distributing such taxes during such monthly
27 period shall be paid by the state comptroller into the general fund of
28 the state treasury to the credit of the state purposes fund therein. The
29 first payment to such chief fiscal officer shall be made on or before
30 March fifteenth, nineteen hundred seventy-six, which payment shall
31 represent the balance of revenue after provision for refund and such
32 reasonable costs, with respect to taxes collected from January first,
33 nineteen hundred seventy-six through February twenty-ninth, nineteen
34 hundred seventy-six. Subsequent payments shall be made on or before
35 April fifteenth, nineteen hundred seventy-six and on or before the
36 fifteenth day of each succeeding month thereafter, and shall represent
37 the balance of revenue with respect to taxes collected the preceding
38 calendar month. The amounts so payable shall be certified to the state
39 comptroller by the state commissioner of taxation and finance or his or
40 her delegate, either of whom shall not be held liable for any inaccuracy
41 in such certificate. Where the amount so paid over to such chief fiscal
42 officer is more or less than the amount then due such city, the amount
43 of overpayment or underpayment shall be certified to the state comp-
44 troller by the state commissioner of taxation and finance or his or her
45 delegate, either of whom shall not be held liable for any inaccuracy in
46 such certificate. The amount of overpayment or underpayment shall be so
47 certified to the state comptroller as soon after the discovery of the
48 overpayment or underpayment as reasonably possible and subsequent
49 payments by the state comptroller to such chief fiscal officer shall be
50 adjusted by subtracting the amount of any such overpayment from, or by
51 adding the amount of any such underpayment to such number of subsequent
52 payments and distributions as the state comptroller and the state
53 commissioner of taxation and finance shall consider reasonable in view
54 of the amount of the overpayment or underpayment and all other facts and
55 circumstances.
S. 8578 1072
1 § 11-1800 Enforcement with other taxes. (a) If there is assessed a
2 tax under this chapter and there is also assessed a tax or taxes against
3 the same taxpayer pursuant to article twenty-two of the tax law or under
4 chapter nineteen of this title and if the tax commission takes action
5 under such article twenty-two or under such chapter nineteen with
6 respect to the enforcement and collection of the tax or taxes assessed
7 under such articles or chapter, the tax commission shall, wherever
8 possible, accompany such action with a similar action under similar
9 enforcement and collection provisions of this chapter.
10 (b) Any moneys collected as a result of such joint action shall be
11 deemed to have been collected in proportion to the amounts due, includ-
12 ing tax, penalties, interest and additions to tax, under article twen-
13 ty-two of the tax law and this city income tax.
14 (c) Whenever the tax commission takes any action with respect to a
15 deficiency of income tax under article twenty-two of the tax law or
16 under chapter nineteen of this title, other than the action set forth in
17 subdivision (a) of this section, it may in its discretion accompany such
18 action with a similar action under such city income tax.
19 § 11-1801 Administration, collection and review. (a) Except as other-
20 wise provided in this chapter, any tax imposed by this chapter shall be
21 administered and collected by the tax commission in the same manner as
22 the tax imposed by article twenty-two of the tax law is administered and
23 collected by such commission. Whenever there is joint collection of
24 state and city personal income taxes, it shall be deemed that such
25 collections shall represent proportionately the applicable state and
26 city personal income taxes in determining the amount to be remitted to
27 the city.
28 (b) The tax commission, in its discretion, may require or permit any
29 or all persons liable for any tax imposed by this chapter to make
30 payments on account of estimated tax and payment of any tax, penalty or
31 interest to such banks, banking houses or trust companies designated by
32 the tax commission and to file returns with such banks, banking houses
33 or trust companies, as agent of the tax commission, in lieu of paying a
34 tax imposed by this chapter directly to the tax commission. However,
35 the tax commission shall designate only such banks, banking houses or
36 trust companies which are designated by the comptroller as depositories
37 of the state.
38 (c) Notwithstanding any other provisions of this chapter, the tax
39 commission may require:
40 (1) the filing of any or all of the following:
41 (A) a combined return which, in addition to the return provided for in
42 section 11-1751 of this chapter, may also include any or both of the
43 returns required to be filed by a resident individual of New York state
44 pursuant to the provisions of section six hundred fifty-one of the tax
45 law and which may be required to be filed by such individual pursuant to
46 chapter nineteen of this title and
47 (B) a combined employer's return which, in addition to the employer's
48 return provided for by this chapter, may also include any or both of the
49 employer's returns required to be filed by the same employer pursuant to
50 the provisions of section six hundred seventy-four of such law and
51 required to be filed by such employer pursuant to such chapter nineteen
52 of this title and
53 (2) where a combined return or employer's return is required, and with
54 respect to the payment of estimated tax, the tax commission may also
55 require the payment to it of a single amount which shall equal the total
56 of the amounts which would have been required to be paid with the
S. 8578 1073
1 returns or employer's returns or in payment of estimated tax pursuant to
2 the provisions of article twenty-two of the tax law, and the provisions
3 of this chapter as if no combined return or employer's return were
4 required.
5 § 11-1802 Construction. This chapter shall be construed and enforced
6 in conformity with article thirty of the tax law, as added to such law
7 by chapter eight hundred eighty-one of the laws of nineteen hundred
8 seventy-five, pursuant to which article it is enacted.
9 CHAPTER 19
10 EARNINGS TAX ON NONRESIDENTS
11 SUBCHAPTER 1
12 GENERAL
13 § 11-1901 Meaning of terms. As used in this chapter, the following
14 terms shall mean and include:
15 (a) "Commissioner" means the commissioner of finance of the city
16 except that with respect to taxes imposed for any taxable year beginning
17 on or after January first, nineteen hundred seventy-six, such term shall
18 mean state tax commission.
19 (b) "Payroll period" and "employer" mean the same as payroll period
20 and employer as defined in subsections (b) and (d) of section thirty-
21 four hundred one of the internal revenue code, and "employee" shall also
22 include all those included as employees in subsection (c) of such
23 section of such code.
24 (c) "Commissioner of finance" means the commissioner of finance of the
25 city.
26 (d) "This state" means the state of New York.
27 (e) "Wages" means wages as defined in subsection (a) of section thir-
28 ty-four hundred one of the internal revenue code, except that (1) wages
29 shall not include payments for active service as a member of the armed
30 forces of the United States and shall not include, in the case of a
31 nonresident individual or partner of a partnership doing an insurance
32 business as a member of the New York insurance exchange described in
33 section six thousand two hundred one of the insurance law, any item of
34 income, gain, loss or deduction of such business which is such individ-
35 ual's distributive or pro rata share for federal income tax purposes or
36 which such individual is required to take into account separately for
37 federal income tax purposes, and (2) wages shall include (i) the amount
38 of member or employee contributions to a retirement system or pension
39 fund picked up by the employer pursuant to subdivision f of section five
40 hundred seventeen or subdivision d of section six hundred thirteen of
41 the retirement and social security law or section 13-225.1, 13-327.1,
42 13-125.1, 13-125.2 or 13-521.1 of title thirteen of the code of the
43 preceding municipality or subdivision nineteen of section twenty-five
44 hundred seventy-five of the education law, (ii) the amount deducted or
45 deferred from an employee's salary under a flexible benefits program
46 established pursuant to section twenty-three of the general municipal
47 law or section twelve hundred ten-a of the public authorities law, (iii)
48 the amount by which an employee's salary is reduced pursuant to the
49 provisions of subdivision b of section 12-126.1 and subdivision b of
50 section 12-126.2 of title twelve of the code of the preceding munici-
51 pality, and (iv) the amount of member or employee contributions to a
52 retirement system or pension fund picked up or paid by the employer for
53 members of the Manhattan and Bronx surface transportation authority
54 pension plan and treated as employer contributions in determining income
S. 8578 1074
1 tax treatment under subdivision (h) of section four hundred fourteen of
2 the Internal Revenue Code.
3 (f) "Net earnings from self-employment" means the same as net earnings
4 from self-employment as defined in subsection (a) of section fourteen
5 hundred two of the internal revenue code, except that the deduction for
6 wages and salaries paid or incurred for the taxable year which is not
7 allowed pursuant to section two hundred eighty-c of such code shall be
8 allowed, and except that an estate or trust shall be deemed to have net
9 earnings from self-employment determined in the same manner as if it
10 were an individual subject to the tax on self-employment income imposed
11 by section fourteen hundred one of the internal revenue code diminished
12 by: (1) the amount of any deduction allowed by subsection (c) of
13 section six hundred forty-two of the internal revenue code and (2) the
14 deductions allowed by sections six hundred fifty-one and six hundred
15 sixty-one of such code to the extent that they represent distributions
16 or payments to a resident of the city. However, "trade or business" as
17 used in subsection (a) of section fourteen hundred two of such code
18 shall mean the same as trade or business as defined in subsection (c) of
19 section fourteen hundred two of such code, except that paragraphs four,
20 five and six of such subsection shall not apply in determining net earn-
21 ings from self-employment taxable under this chapter. Provided, however,
22 in the case of a nonresident individual or partner of a partnership
23 doing an insurance business described in section six thousand two
24 hundred one of the insurance law, any item of income, gain, loss or
25 deduction of such business which is the individual's distributive or pro
26 rata share for federal income tax purposes or which the individual is
27 required to take into account separately for federal income tax purposes
28 shall not be considered to be "net earnings from self-employment".
29 (g) "Taxable year" means the taxpayer's taxable year for federal
30 income tax purposes.
31 (h) Resident individual. A resident individual means an individual:
32 (1) who is domiciled in the city, unless (A) he or she maintains no
33 permanent place of abode in the city, maintains a permanent place of
34 abode elsewhere, and spends in the aggregate not more than thirty days
35 of the taxable year in the city, or (B) (i) within any period of five
36 hundred forty-eight consecutive days he or she is present in a foreign
37 country or countries for at least four hundred fifty days, and (ii)
38 during such period of five hundred forty-eight consecutive days he or
39 she is not present in the city for more than ninety days and does not
40 maintain a permanent place of abode in the city at which his or her
41 spouse, unless such spouse is legally separated, or minor children are
42 present for more than ninety days, and (iii) during any period of less
43 than twelve months which would be treated as a separate taxable period
44 pursuant to section 11-1919 of this chapter, and which period is
45 contained within such period of five hundred forty-eight consecutive
46 days, he or she is present in the city for a number of days which does
47 not exceed an amount which bears the same ratio to ninety as the number
48 of days contained in such period of less than twelve months bears to
49 five hundred forty-eight, or
50 (2) who is not domiciled in the city but maintains a permanent place
51 of abode in the city and spends in the aggregate more than one hundred
52 eighty-three days of the taxable year in the city, unless such individ-
53 ual is in active service in the armed forces of the United States.
54 (i) Nonresident individual. A nonresident individual means an individ-
55 ual who is not a resident.
56 (j) Resident estate or trust. A resident estate or trust means:
S. 8578 1075
1 (1) the estate of a decedent who at his or her death was domiciled in
2 the city,
3 (2) a trust, or a portion of a trust, consisting of property trans-
4 ferred by will of a decedent who at his or her death was domiciled in
5 the city, or
6 (3) a trust, or portion of a trust, consisting of the property of:
7 (A) a person domiciled in the city at the time such property was
8 transferred to the trust, if such trust or portion of a trust was then
9 irrevocable, or if it was then revocable and has not subsequently become
10 irrevocable; or
11 (B) a person domiciled in the city at the time such trust, or portion
12 of a trust, became irrevocable, if it was revocable when such property
13 was transferred to the trust but has subsequently become irrevocable.
14 For the purposes of this subdivision, a trust or portion of a trust is
15 revocable if it is subject to a power, exercisable immediately or at any
16 future time, to revest title in the person whose property constitutes
17 such trust or portion of a trust, and a trust or portion of a trust
18 becomes irrevocable when the possibility that such power may be exer-
19 cised has been terminated.
20 (k) Nonresident estate or trust. A nonresident estate or trust means
21 an estate or trust which is not a resident.
22 (l) Unless a different meaning is clearly required, any terms used in
23 this chapter shall have the same meaning as when used in a comparable
24 context in the laws of the United States relating to federal taxes but
25 such meaning shall be subject to the exceptions or modifications
26 prescribed in or pursuant to article two-E of the general city law or by
27 the laws of this state. Any reference in this chapter to the internal
28 revenue code, the internal revenue code of nineteen hundred eighty-six
29 or to the laws of the United States shall mean the provisions of the
30 internal revenue code of nineteen hundred eighty-six, unless a reference
31 to the internal revenue code of nineteen hundred fifty-four is clearly
32 intended, and amendments thereto, and other provisions of the laws of
33 the United States relating to federal taxes, as the same are included in
34 the appendix and supplement to the appendix to this chapter. The quota-
35 tion of such laws of the United States is intended to make them a part
36 of this chapter and to avoid constitutional uncertainties which might
37 result if such laws were merely incorporated by reference. The quota-
38 tion of a provision of the federal internal revenue code or of any other
39 law of the United States shall not necessarily mean that it is applica-
40 ble to or has relevance to this chapter.
41 (m) With respect to any taxable year beginning in nineteen hundred
42 seventy, until and including the thirty-first day of December, nineteen
43 hundred seventy-one, "administrator" shall be read as "state tax commis-
44 sion"; "administrative agencies of the city" shall be read as "adminis-
45 trative agencies of the state"; "depositories or financial agents of the
46 city" shall be read as "depositories or financial agents of the state";
47 "officers or employees of the department of finance of the city" shall
48 be read as "officers or employees of the state department of taxation
49 and finance"; in sections 11-1934, 11-1936, 11-1939, and 11-1942 of this
50 chapter "city" shall be read as "state"; "corporation counsel or other
51 appropriate officer of the city" or "corporation counsel of the city"
52 shall be read as "state attorney general"; and the words "it" or "its"
53 shall apply instead of the pronouns used where the reference is to tax
54 commission. Provided, however, with respect to declarations of estimated
55 tax and payments of such tax and the withholding tax requirements, until
56 and including the thirty-first day of December, nineteen hundred seven-
S. 8578 1076
1 ty-one, any such terms shall be so read with respect to any taxable year
2 or other period beginning in nineteen hundred seventy-one.
3 (n) The term "partnership" shall include, unless a different meaning
4 is clearly required, a subchapter K limited liability company. The term
5 "subchapter K limited liability company" shall mean a limited liability
6 company classified as a partnership for federal income tax purposes. The
7 term "limited liability company" means a domestic limited liability
8 company or a foreign limited liability company, as defined in section
9 one hundred two of the limited liability company law, a limited liabil-
10 ity investment company formed pursuant to section five hundred seven of
11 the banking law, or a limited liability trust company formed pursuant to
12 section one hundred two-a of the banking law.
13 § 11-1902 Persons subject to tax. (a) Imposition of tax. (1) A tax is
14 hereby imposed for each taxable year ending on or after July first,
15 nineteen hundred sixty-six and on or before December thirty-first, nine-
16 teen hundred seventy and for each taxable year beginning after December
17 thirty-first, nineteen hundred ninety-nine, on the wages earned and net
18 earnings from self-employment, within the city, of every nonresident
19 individual, estate and trust which shall comprise: (i) A tax at the
20 rate of one-fourth of one percent on all wages.
21 (ii) A tax at the rate of three-eighths of one percent on all net
22 earnings from self-employment.
23 (2) For each taxable year beginning on or after January first, nine-
24 teen hundred seventy-one and ending on or before December thirty-first,
25 nineteen hundred ninety-nine, a tax is hereby imposed on the wages
26 earned, and net earnings from self-employment, within the city, of every
27 nonresident individual, estate and trust which shall comprise: (i) A
28 tax at the rate of forty-five hundredths of one percent on all wages.
29 (ii) A tax at the rate of sixty-five hundredths of one percent on all
30 net earnings from self-employment.
31 (3) For each taxable year beginning in nineteen hundred seventy and
32 ending in nineteen hundred seventy-one, two tentative taxes shall be
33 computed, the first as provided in paragraph one of this subdivision and
34 the second as provided in paragraph two of this subdivision, and the tax
35 for each such year shall be the sum of that proportion of each tentative
36 tax which the number of days in nineteen hundred seventy and the number
37 of days in nineteen hundred seventy-one, respectively, bears to the
38 number of days in the entire taxable year.
39 (4) For each taxable year beginning in nineteen hundred ninety-nine
40 and ending in two thousand, two tentative taxes shall be computed, the
41 first as provided in paragraph two of this subdivision and the second as
42 provided in paragraph one of this subdivision, and the tax for each such
43 year shall be the sum of that proportion of each tentative tax which the
44 number of days in nineteen hundred ninety-nine and the number of days in
45 two thousand, respectively, bears to the number of days in the entire
46 taxable year.
47 (b) Exclusion. (1) In computing the amount of wages and net earnings
48 from self-employment taxable under subdivision (a) of this section,
49 there shall be allowed an exclusion against the total of wages and net
50 earnings from self-employment in accordance with the following table:
51 Total of wages and net earnings
52 from self-employment Exclusion allowable
53 Not over $10,000 $3,000
54 Over $10,000 but not over $20,000 $2,000
S. 8578 1077
1 Over $20,000 but not over $30,000 $1,000
2 Over $30,000 None
3 (2) The exclusion allowable shall be applied pro rata against wages
4 and net earnings from self-employment.
5 (3) For taxable periods of less than one year, the exclusion allowable
6 shall be prorated pursuant to regulations of the commissioner.
7 (c) Limitation. In no event shall a taxpayer be subject to the tax
8 under this chapter in an amount greater than such taxpayer would be
9 required to pay if such taxpayer were a resident of the city and subject
10 to a tax on personal income of residents of the city adopted by the city
11 pursuant to authority granted by the general city law or the tax law.
12 § 11-1903 Taxable years to which tax imposed by this chapter applies;
13 tax for taxable years beginning prior to and ending after July first,
14 nineteen hundred sixty-six. (a) General. The tax imposed by this chapter
15 is imposed for each taxable year beginning with taxable years ending on
16 or after July first, nineteen hundred sixty-six.
17 (b) Alternate methods for determining tax for taxable years ending on
18 or after July first, nineteen hundred sixty-six. (1) The tax for any
19 taxable year ending on or after July first, nineteen hundred sixty-six
20 and on or before June thirtieth, nineteen hundred sixty-seven, shall be
21 the same part of the tax which would have been imposed had this chapter
22 been in effect for the entire taxable year as the number of months, or
23 major portions thereof, of the taxable year occurring after July first,
24 nineteen hundred sixty-six is of the number of months, or major portions
25 thereof, in the taxable year.
26 (2)(i) In lieu of the method of computation of tax prescribed in para-
27 graph one of this subdivision, if the taxpayer maintains adequate
28 records for any taxable year ending on or after July first, nineteen
29 hundred sixty-six and on or before June thirtieth, nineteen hundred
30 sixty-seven, the tax for such taxable year, at the election of the
31 taxpayer, may be computed on the basis of the wages which the taxpayer
32 would have reported had he or she filed a federal income tax return for
33 a taxable year beginning July first, nineteen hundred sixty-six, and
34 ending with the close of such taxable year ending on or before June
35 thirtieth, nineteen hundred sixty-seven, and the net earnings from self-
36 employment which the taxpayer would have reported for federal income tax
37 purposes had he or she filed a self-employment tax return for a taxable
38 year beginning July first, nineteen hundred sixty-six and ending with
39 the close of such taxable year ending on or before June thirtieth, nine-
40 teen hundred sixty-seven.
41 (ii) For purposes of this paragraph, the exclusions allowable under
42 section 11-1902 of this subchapter shall be reduced by a fraction, the
43 numerator of which is the number of months, or major portions thereof,
44 of the taxable year occurring before July first, nineteen hundred
45 sixty-six, and the denominator of which is the number of months, or
46 major portions thereof, in the taxable year. Except as provided in this
47 paragraph, the tax for such period ending on or before June thirtieth,
48 nineteen hundred sixty-seven, shall be computed in accordance with the
49 other provisions of this chapter.
50 § 11-1904 Allocation to the city. (a) General. If net earnings from
51 self-employment are derived from services performed, or from sources,
52 within and without the city, there shall be allocated to the city a fair
53 and equitable portion of such earnings.
54 (b) Allocation of net earnings from self-employment.
S. 8578 1078
1 (1) Place of business. If a taxpayer has no regular place of business
2 outside the city all of his or her net earnings from self-employment
3 shall be allocated to the city.
4 (2) Allocation by taxpayer's books. The portion of net earnings from
5 self-employment allocable to the city may be determined from the books
6 and records of a taxpayer's trade or business, if the methods used in
7 keeping such books and the accuracy thereof are approved by the commis-
8 sioner as fairly and equitably reflecting net earnings from self-employ-
9 ment within the city.
10 (3) Allocation by formula. If paragraph two of this subdivision does
11 not apply to the taxpayer, the portion of net earnings from self-employ-
12 ment allocable to the city shall be determined by multiplying (A) net
13 earnings from self-employment within and without the city, by (B) the
14 average of the following three percentages:
15 (i) Property percentage. The percentage computed by dividing (A) the
16 average of the value, at the beginning and end of the taxable year, of
17 real and tangible personal property connected with net earnings from
18 self-employment and located within the city, by (B) the average of the
19 value, at the beginning and end of the taxable year, of all real and
20 tangible personal property connected with the net earnings from self-em-
21 ployment and located both within and without the city. For this
22 purpose, real property shall include real property whether owned or
23 rented.
24 (ii) Payroll percentage. The percentage computed by dividing (A) the
25 total wages, salaries and other personal service compensation paid or
26 incurred during the taxable year to employees in connection with the net
27 earnings from self-employment derived from a trade or business carried
28 on within the city, by (B) the total of all wages, salaries and other
29 personal service compensation paid or incurred during the taxable year
30 to employees in connection with the net earnings from self-employment
31 derived from a trade or business carried on both within and without the
32 city.
33 (iii) Gross income percentage. The percentage computed by dividing
34 (A) the gross sales or charges for services performed by or through an
35 agency located within the city, by (B) the total of all gross sales or
36 charges for services performed within and without the city. The sales
37 or charges to be allocated to the city shall include all sales negoti-
38 ated or consummated, and charges for services performed, by an employee,
39 agent, agency or independent contractor chiefly situated at, connected
40 by contract or otherwise with, or sent out from, offices or other agen-
41 cies of the trade or business from which a taxpayer is deriving net
42 earnings from self-employment, situated within the city.
43 (c) Other allocation methods. The portion of net earnings from self-
44 employment allocable to the city shall be determined in accordance with
45 rules and regulations of the commissioner if it shall appear to the
46 commissioner that the net earnings from self-employment are not fairly
47 and equitably reflected under the provisions of subdivision (b) of this
48 section.
49 (d) Special rules for real estate. Income and deductions from the
50 rental of real property and gain and loss from the sale, exchange or
51 other disposition of real property, shall not be subject to allocation
52 under subdivision (b) or (c) of this section, but shall be considered as
53 entirely derived from or connected with the place in which such property
54 is located.
S. 8578 1079
1 § 11-1905 Accounting periods and methods. (a) Accounting periods. A
2 taxpayer's taxable year under this chapter shall be the same as his or
3 her taxable year for federal income tax purposes.
4 (b) Change of accounting periods. If a taxpayer's taxable year is
5 changed for federal income tax purposes, his or her taxable year for
6 purposes of this chapter shall be similarly changed. If a taxable peri-
7 od of less than twelve months results from a change of taxable year, the
8 exclusion allowable under section 11-1902 of this subchapter shall be
9 prorated under regulations of the commissioner.
10 (c) Accounting methods. A taxpayer's method of accounting under this
11 chapter shall be the same as his or her method of accounting for federal
12 income tax purposes. In the absence of any method of accounting for
13 federal income tax purposes, net earnings from self-employment within
14 the city shall be computed under such method as in the opinion of the
15 commissioner clearly reflects net earnings from self-employment within
16 the city.
17 (d) Change of accounting methods. (1) If a taxpayer's method of
18 accounting is changed for federal income tax purposes, his or her method
19 of accounting for purposes of this chapter shall be similarly changed.
20 (2) If a taxpayer's method of accounting is changed, other than from
21 an accrual to an installment method, any additional tax which results
22 from adjustments determined to be necessary solely by reason of the
23 change shall not be greater than if such adjustments were ratably allo-
24 cated and included for the taxable year of the change and the preceding
25 taxable years, beginning after July first, nineteen hundred sixty-six,
26 not in excess of two, during which the taxpayer used the method of
27 accounting from which the change is made.
28 (3) If a taxpayer's method of accounting is changed from an accrual to
29 an installment method, any additional tax for the year of such change of
30 method and for any subsequent year which is attributable to the receipt
31 of installment payments properly accrued in a prior year, shall be
32 reduced by the portion of tax for any prior taxable year attributable to
33 the accrual of such installment payments, in accordance with regulations
34 of the commissioner.
35 § 11-1908 Withholding of tax on wages. On or after the first payroll
36 period beginning August twenty-seventh, nineteen hundred sixty-six,
37 every employer maintaining an office or transacting business within this
38 state and making payment of any wages taxable under this chapter shall
39 deduct and withhold from such wages for each payroll period a tax
40 computed in such manner as to result, so far as practicable, in with-
41 holding from the employee's wages during each calendar year an amount
42 substantially equivalent to the tax reasonably estimated to be due from
43 the employee under this chapter. The method of determining the amount to
44 be withheld shall be prescribed by regulations of the commissioner.
45 § 11-1909 Withholding of tax on wages for taxable periods commencing
46 on or after January first, nineteen hundred seventy-six. The provisions
47 contained in sections 11-1908, 11-1910, 11-1911, 11-1912, 11-1913 and
48 11-1914 of this subchapter shall not be applicable to taxes imposed for
49 taxable periods commencing on or after January first, nineteen hundred
50 seventy-six provided however, with respect to such periods, the
51 provisions contained in part V of article twenty-two of the tax law
52 shall be applicable with the same force and effect as if those
53 provisions had been incorporated in full in this section except that the
54 term "aggregate amount" contained in paragraphs one, two and three of
55 subsection (a) of section six hundred seventy-four of the tax law shall
56 mean the aggregate amounts of New York state personal income tax, city
S. 8578 1080
1 earnings tax on nonresidents and city personal income tax on residents
2 authorized pursuant to article thirty of the tax law required to be
3 deducted and withheld and provided, however, that the provisions of such
4 paragraphs shall not be applicable to employer's returns required to be
5 filed with respect to taxes required to be deducted and withheld during
6 the calendar year nineteen hundred seventy-six, but such returns shall
7 be required to be filed with the tax commission at the times and in the
8 manner provided for in subdivision (a) of section 11-1912 of this
9 subchapter, except the term "commission" in such subdivision shall be
10 read as "tax commission." This section shall not apply to payments by
11 the United States for service in the armed forces of the United States
12 so long as the right to require deduction and withholding of tax from
13 such payments is prohibited by the laws of the United States. Service in
14 the armed forces of the United States shall have the same meaning as
15 when used in a comparable context in the laws of the United States
16 relating to withholding of city income taxes.
17 § 11-1910 Information statement for employee. Every employer required
18 to deduct and withhold tax under this chapter from the wages of an
19 employee, shall furnish to each such employee in respect of the wages
20 paid by such employer to such employee during the calendar year on or
21 before February fifteenth of the succeeding year, or, if his or her
22 employment is terminated before the close of such calendar year, within
23 thirty days from the date on which the last payment of the wages is
24 made, a written statement as prescribed by the commissioner showing the
25 total amount of wages paid by the employer to the employee, the amount
26 of wages paid for services performed within the city, the amount
27 deducted and withheld as tax, and such other information as the commis-
28 sioner may prescribe. The written statement required under this
29 section may be furnished to such employee in an electronic format.
30 § 11-1911 Credit for tax withheld. Wages upon which tax is required to
31 be withheld shall be taxable under this chapter as if no withholding
32 were required, but any amount of tax actually deducted and withheld
33 under this chapter in any calendar year shall be deemed to have been
34 paid on behalf of the employee from whom withheld, and such employee
35 shall be credited with having paid that amount of tax in such calendar
36 year. For a taxable year of less than twelve months, the credit shall be
37 made under regulations of the commissioner.
38 § 11-1912 Employer's return and payment of withheld taxes. (a) Gener-
39 al. On or after the first payroll period beginning August twenty-sev-
40 enth, nineteen hundred sixty-six, every employer required to deduct and
41 withhold tax under this chapter shall, for each calendar month, on or
42 before the fifteenth day of the month following the close of such calen-
43 dar month file a withholding return as prescribed by the commissioner
44 and pay over to the commissioner or to the depository designated by the
45 commissioner, the taxes so required to be deducted and withheld, except
46 that for the month of December in any year the returns shall be filed
47 and the taxes paid on or before January thirty-first of the succeeding
48 year. Where the aggregate amount required to be deducted and withheld
49 by any employer under this chapter and under chapter seventeen of this
50 title is less than twenty-five dollars in a calendar month and the
51 aggregate of such taxes for the semi-annual period ending on June thir-
52 tieth and December thirty-first can reasonably be expected to be less
53 than one hundred fifty dollars, the commissioner may, by regulation,
54 permit an employer to file a return on or before July thirty-first for
55 the semi-annual period ending on June thirtieth and on or before January
56 thirty-first for the semi-annual period ending on December thirty-first.
S. 8578 1081
1 The commissioner may, if he or she believes such action necessary for
2 the protection of the revenues, require any employer to make a return
3 and pay to him or her the tax deducted and withheld at any time, or from
4 time to time. Where the amount of wages paid by an employer is not
5 sufficient under this chapter and under chapter seventeen of this title
6 to require the withholding of tax from the wages of any of his or her
7 employees, the commissioner may, by regulation, permit such employer to
8 file an annual return on or before February twenty-eighth of the follow-
9 ing calendar year.
10 (b) Combined returns. The commissioner may by regulation provide for
11 the filing of one return which shall include the return required to be
12 filed under this section, together with the employer's return required
13 to be filed under chapter seventeen of this title.
14 (c) Deposit in trust for city. Whenever any employer fails to collect,
15 truthfully account for, pay over the tax, or make returns of the tax as
16 required in this section, the commissioner may serve a notice requiring
17 such employer to collect the taxes which become collectible after
18 service of such notice, to deposit such taxes in a bank approved by the
19 commissioner, in a separate account, in trust for the city and payable
20 to the commissioner, and to keep the amount of such tax in such account
21 until payment over to the commissioner. Such notice shall remain in
22 effect until a notice of cancellation is served by the commissioner.
23 § 11-1913 Employer's liability for withheld taxes. Every employer
24 required to deduct and withhold the tax under this chapter is hereby
25 made liable for such tax. For purposes of assessment and collection,
26 any amount required to be withheld and paid over to the commissioner,
27 and any additions to tax, penalties and interest with respect thereto
28 shall be considered the tax of the employer. Any amount of tax actually
29 deducted and withheld under this chapter shall be held to be a special
30 fund in trust for the city. No employee shall have any right of action
31 against his or her employer in respect to any monies deducted and with-
32 held from his or her wages and paid over to the commissioner in compli-
33 ance or in intended compliance with this chapter.
34 § 11-1914 Employer's failure to withhold. If an employer fails to
35 deduct and withhold the tax, as required, and thereafter the tax against
36 which such tax may be credited is paid, the tax so required to be
37 deducted and withheld shall not be collected from the employer, but the
38 employer shall not be relieved from liability for any penalties, inter-
39 est or additions to the tax otherwise applicable in respect of such
40 failure to deduct and withhold.
41 § 11-1915 Combined returns, employer's returns and payments. The
42 state tax commission may require:
43 (1) The filing of any or all of the following:
44 (A) A combined return which in addition to the return provided for in
45 this chapter may also include returns required to be filed under a law
46 authorized by article thirty of the tax law and under article twenty-two
47 of the tax law.
48 (B) A combined employer's return which in addition to the employer's
49 return provided for by this chapter may also include employer's returns
50 required to be filed under a law authorized by article thirty of the tax
51 law and under article twenty-two of the tax law.
52 (2) Where a combined return or employer's return is required, and
53 with respect to the payment of estimated tax, the state tax commission
54 may also require payment of a single amount which shall be the total of
55 the amounts, total taxes less any credits or refunds, required to be
56 paid with the returns or employer's returns or in payment of estimated
S. 8578 1082
1 tax pursuant to the provisions of this chapter, a law authorized by
2 article thirty of the tax law and pursuant to the provisions of article
3 twenty-two of the tax law.
4 SUBCHAPTER 2
5 RETURNS AND PAYMENT OF TAX
6 § 11-1916 Returns and payment of tax. (a) General. On or before the
7 fifteenth day of the fourth month following the close of the taxable
8 year, every person subject to the tax shall make and file a return and
9 any balance of the tax shown due on the face of such return shall be
10 paid therewith. The commissioner may, by regulation, provide for the
11 filing of returns and payment of the tax at such other times as he or
12 she deems necessary for the proper enforcement of this chapter. The
13 commissioner may also provide by regulation that any return otherwise
14 required to be made and filed under this chapter by any nonresident
15 individual need not be made and filed if such nonresident individual
16 had, during the taxable year to which the return would relate, no net
17 earnings from self-employment within the city. Any regulation allowing
18 such waiver of return may provide for additional limitations on and
19 conditions and prerequisites to the privilege of not filing a return.
20 (b) Decedents. The return for any deceased individual shall be made
21 and filed by his or her executor, administrator, or other person charged
22 with his or her property. If a final return of a decedent is for a
23 fractional part of a year, the due date of such return shall be the
24 fifteenth day of the fourth month following the close of the twelve-
25 month period which began with the first day of such fractional part of
26 the year.
27 (c) Individuals under a disability. The return for an individual who
28 is unable to make a return by reason of minority or other disability
29 shall be made and filed by his or her guardian, committee, fiduciary or
30 other person charged with the care of his or her person or property,
31 other than a receiver in possession of only a part of his or her proper-
32 ty, or by his or her duly authorized agent.
33 (d) Estates and trust. The return for an estate or trust shall be made
34 and filed by the fiduciary.
35 (e) Joint fiduciaries. If two or more fiduciaries are acting jointly,
36 the return may be made by any one of them.
37 (f) Cross reference. For provisions as to information returns by part-
38 nerships, employers and other persons, see section 11-1921 of this
39 subchapter.
40 § 11-1917 Time and place for filing returns and paying tax. A person
41 required to make and file a return under this chapter shall, without
42 assessment, notice or demand, pay any tax due thereon to the commission-
43 er on or before the date fixed for filing such return, determined with-
44 out regard to any extension of time for filing the return. The commis-
45 sioner shall prescribe by regulation the place for filing any return,
46 statement, or other document required pursuant to this chapter and for
47 payment of any tax.
48 § 11-1918 Signing of returns and other documents. (a) General. Any
49 return, statement or other document required to be made pursuant to this
50 chapter shall be signed in accordance with regulations or instructions
51 prescribed by the commissioner. The fact that an individual's name is
52 signed to a return, statement, or other document, shall be prima facie
53 evidence for all purposes that the return, statement or other document
54 was actually signed by such individual.
S. 8578 1083
1 (b) Partnerships. Any return, statement or other document required of
2 a partnership shall be signed by one or more partners. The fact that a
3 partner's name is signed to a return, statement, or other document,
4 shall be prima facie evidence for all purposes that such partner is
5 authorized to sign on behalf of the partnership.
6 (c) Certifications. The making or filing of any return, statement or
7 other document or copy thereof required to be made or filed pursuant to
8 this chapter, including a copy of a federal return, shall constitute a
9 certification by the person making or filing such return, statement or
10 other document or copy thereof that the statements contained therein are
11 true and that any copy filed is a true copy.
12 § 11-1919 Change of residence status during year. (a) General. If an
13 individual changes his or her status during his or her taxable year from
14 resident to nonresident, or from nonresident to resident, he or she
15 shall file a return as a nonresident for the portion of the year during
16 which he or she is a nonresident if he or she is subject to the tax
17 imposed by this chapter or, if not subject to such tax, an information
18 return for the portion of the year during which he or she is a nonresi-
19 dent, subject to such exceptions as the commissioner may prescribe by
20 regulation. Such information return shall be due at the same time as
21 the return required by chapter seventeen of this title for the portion
22 of the year during which such individual is a resident.
23 (b) City taxable wages and net earnings from self-employment for
24 portion of year individual is a nonresident. The city taxable wages and
25 net earnings from self-employment for the portion of the year during
26 which he or she is a nonresident shall be determined, except as provided
27 in subdivision (c) of this section, under this chapter as if his or her
28 taxable year for federal income tax purposes were limited to the period
29 of his or her nonresident status.
30 (c) Special accruals. (1) If an individual changes his or her status
31 from resident to nonresident, he or she shall, regardless of his or her
32 method of accounting, accrue for the portion of the taxable year prior
33 to such change of status any items of income, gain, loss or deduction
34 accruing prior to the change of status, if not otherwise properly inclu-
35 dible, whether or not because of an election to report on an installment
36 basis, or allowable for city earnings tax purposes for such portion of
37 the taxable year for a prior taxable year. The amounts of such accrued
38 items shall be determined as if such accrued items were includible or
39 allowable for federal self-employment tax purposes.
40 (2) If an individual changes his or her status from nonresident to
41 resident, he or she shall, regardless of his or her method of account-
42 ing, accrue for the portion of the taxable year prior to such change of
43 status any items of income, gain, loss or deduction accruing prior to
44 the change of status, if not otherwise properly includible, whether or
45 not because of an election to report on an installment basis, or allow-
46 able for federal self-employment tax purposes for such portion of the
47 taxable year or for prior taxable year. The amounts of such accrued
48 items shall be determined if such accrued items were includible or
49 allowable for federal self-employment tax purposes.
50 (3) No item of income, gain, loss or deduction which is accrued under
51 this subdivision shall be taken into account in determining city
52 adjusted wages earned, or net earnings from self-employment, within the
53 city, for any subsequent taxable period.
54 (4) Where an individual changes his or her status from resident to
55 nonresident, the accruals under this subdivision shall not be required
56 if the individual files with the commissioner a bond or other security
S. 8578 1084
1 acceptable to the commissioner, conditioned upon the inclusion of
2 amounts accruable under this subdivision in city adjusted gross income
3 under chapter seventeen of this title for one or more subsequent taxable
4 years as if the individual has not changed his or her resident status.
5 In such event, the tax under this chapter shall not apply to such
6 amounts.
7 (d) Prorations. Where an individual changes his or her status during
8 his or her taxable year from resident to nonresident or from nonresident
9 to resident, the exclusion allowable under subdivision (b) of section
10 11-1902 of this chapter shall be prorated, under regulations of the
11 commissioner, to reflect the portions of the entire taxable year during
12 which the individual was a resident and a nonresident.
13 § 11-1920 Extension of time. (a) General. The commissioner may grant a
14 reasonable extension of time for payment of tax or estimated tax, or any
15 installment, or for filing any return, statement, or other document
16 required pursuant to this chapter, on such terms and conditions as he or
17 she may require. Except for a taxpayer who is outside the United States
18 or who intends to claim nonresident status pursuant to subparagraphs
19 (i), (ii) and (iii) of paragraph one of subdivision (h) of section
20 11-1901 of this chapter, no such extension for filing any return, state-
21 ment or other document, shall exceed six months.
22 (b) Furnishing of security. If any extension of time is granted for
23 payment of any amount of tax, the commissioner may require the taxpayer
24 to furnish a bond or other security in an amount not exceeding twice the
25 amount for which the extension of time for payment is granted, on such
26 terms and conditions as the commissioner may require.
27 § 11-1921 Requirements concerning returns, notices, records and state-
28 ments. (a) General. The commissioner may prescribe regulations as to the
29 keeping of records, the content and form of returns and statements, and
30 the filing of copies of federal income tax returns and determinations.
31 The commissioner may require any person, by regulation or notice served
32 upon such person, to make such returns, render such statements, or keep
33 such records, as the commissioner may deem sufficient to show whether or
34 not such person is liable under this chapter for tax or for collection
35 of tax.
36 (b) Partnerships. Every partnership doing business in the city and
37 having no partners who are residents shall make a return for the taxable
38 year setting forth all items of income, gain, loss and deduction and
39 such other pertinent information as the commissioner may by regulations
40 and instructions prescribe. Such return shall be filed on or before the
41 fifteenth day of the fourth month following the close of each taxable
42 year. For purposes of this subdivision, "taxable year" means year or
43 period which would be a taxable year of the partnership if it were
44 subject to tax under this chapter.
45 (c) Information at source. The commissioner may prescribe regulations
46 and instructions requiring returns of information to be made and filed
47 on or before February twenty-eighth of each year as to the payment or
48 crediting in any calendar year of amounts of six hundred dollars or more
49 to any taxpayer under this chapter. Such returns may be required of any
50 person, including lessees or mortgagors of real or personal property,
51 fiduciaries, employers, and all officers and employees of this state, or
52 any municipal corporation or political subdivision of this state, having
53 the control, receipt, custody, disposal or payment of interest, rents,
54 salaries, wages, premiums, annuities, compensations, remunerations,
55 emoluments or other fixed or determinable gains, profits or income,
56 except interest coupons payable to bearer. A duplicate of the statement
S. 8578 1085
1 as to tax withheld on wages, required to be furnished by an employer to
2 an employee, shall constitute the return of information required to be
3 made under this section with respect to such wages.
4 (d) Notice of qualification as receiver, etc. Every receiver, trustee
5 in bankruptcy, assignee for benefit of creditors, or other like fiduci-
6 ary shall give notice of his or her qualifications as such to the
7 commissioner, as may be required by regulation.
8 § 11-1922 Report of change in federal or New York state taxable
9 income. If the amount of a taxpayer's federal or New York state taxable
10 income or self-employment income reported on his or her federal or New
11 York state tax return for any taxable year is changed or corrected by
12 the United States internal revenue service or the New York state commis-
13 sioner of taxation and finance or other competent authority, or as the
14 result of a renegotiation of a contract or subcontract with the United
15 States or New York state or if a taxpayer, pursuant to subsection (d) of
16 section six thousand two hundred thirteen of the internal revenue code,
17 executes a notice of waiver of the restrictions provided in subsection
18 (a) of said section or if a taxpayer, pursuant to subdivision (f) of
19 section six hundred eighty-one of the tax law executes a notice of waiv-
20 er of the restrictions provided in subdivision (c) of said section, or
21 if any tax on self-employment income in addition to that shown on his or
22 her return is assessed, the taxpayer shall report such change or
23 correction in federal or New York state taxable income or such execution
24 of such notice of waiver or such assessment and the changes or
25 corrections of his or her federal or New York state taxable income or
26 self-employment income on which it is based, within ninety days after
27 the final determination of such change, correction, or renegotiation, or
28 such execution of such notice of waiver or the making of such assessment
29 as otherwise required by the commissioner, and shall concede the accura-
30 cy of such determination or state wherein it is erroneous. Any taxpayer
31 filing an amended federal or New York state income or self-employment
32 income tax return shall also file within ninety days thereafter an
33 amended return under this chapter, and shall give such information as
34 the commissioner may require. The commissioner may by regulation
35 prescribe such exceptions to the requirements of this section as he or
36 she deems appropriate. For purposes of this section, (i) the term
37 "taxpayer" shall include a partnership having any income derived from
38 city sources, and (ii) the term "federal income tax return" shall
39 include the returns of income required under section six thousand thir-
40 ty-one of the internal revenue code. Reports made under this section by
41 a partnership shall indicate the portion of the change in each item of
42 income, gain, loss or deduction allocable to each partner and shall set
43 forth such identifying information with respect to such partner as may
44 be prescribed by the commissioner.
45 SUBCHAPTER 3
46 PROCEDURE AND ADMINISTRATION
47 § 11-1923 Notice of deficiency. (a) General. If upon examination of a
48 taxpayer's return under this chapter the commissioner determines that
49 there is a deficiency of tax, he or she may mail a notice of deficiency
50 to the taxpayer. If a taxpayer fails to file a return required under
51 this chapter, the commissioner is authorized to estimate the taxpayer's
52 wages and net earnings from self-employment or the wages from which
53 taxes are required to be deducted and withheld and the tax thereon, from
54 any information in the commissioner's possession, and to mail a notice
S. 8578 1086
1 of deficiency to the taxpayer. A notice of deficiency shall be mailed
2 by certified or registered mail to the taxpayer at such taxpayer's last
3 known address in or out of the city. If the taxpayer is deceased or
4 under a legal disability, a notice of deficiency may be mailed to his or
5 her last known address in or out of the city, unless the commissioner
6 has received notice of the existence of a fiduciary relationship with
7 respect to the taxpayer.
8 (b) Notice of deficiency as assessment. The notice of deficiency shall
9 be an assessment of the amount of tax specified in such notice, together
10 with the interest, additions to tax and penalties stated in such notice.
11 (c) Restrictions on collection and levy. No notice and demand for
12 payment of an assessment of a deficiency in tax made by a notice of
13 deficiency and no levy or proceeding in court for its collection shall
14 be made, begun or prosecuted, except as otherwise provided in section
15 11-1937 of this subchapter, until the expiration of the time for filing
16 a petition contesting such notice, nor, if a petition with respect to
17 the taxable year has been filed with the commissioner, until the deci-
18 sion of the commissioner has become final. After a petition has been
19 filed the restriction provided herein shall not apply to such part of
20 the deficiency as is not contested by the petition. For exception in
21 the case of judicial review of the decision of the commissioner, see
22 subdivision (c) of section 11-1932 of this subchapter.
23 (d) Exceptions for mathematical errors. If a mathematical error
24 appears on a return, including an overstatement of the credit for tax
25 withheld at the source or of the amount paid as estimated tax, the
26 commissioner shall notify the taxpayer that an amount of tax in excess
27 of that shown upon the return is due, and that such excess has been
28 assessed. Such notice shall not be considered as a notice of deficiency
29 for the purposes of this section, subdivision (f) of section 11-1929 of
30 this subchapter, limiting credits or refunds after petition to the
31 commissioner, or subdivision (b) of section 11-1931 of this subchapter,
32 authorizing the filing of a petition with the commissioner based on a
33 notice of deficiency, nor shall collection of such assessment be prohib-
34 ited by the provisions of subdivision (c) of this section.
35 (e) Exception where change in federal or New York state taxable income
36 is not reported (1) If the taxpayer fails to comply with section 11-1922
37 of this chapter in not reporting a change or correction increasing his
38 or her federal or New York state taxable income or self-employment
39 income as reported on such taxpayer's federal or New York state tax
40 return or in not reporting a change or correction which is treated in
41 the same manner as if it were a deficiency for federal or New York state
42 tax purposes or in not filing an amended return or in not reporting the
43 execution of a notice of waiver or an assessment described in such
44 section, instead of the mode and time of assessment and collection
45 provided for in subdivision (b) of this section, the commissioner may
46 assess a deficiency based upon such changed or corrected federal or New
47 York state taxable income or self-employment income by mailing to the
48 taxpayer a notice of additional tax due specifying the amount of the
49 deficiency, and such deficiency, together with the interest, additions
50 to tax and penalties stated in such notice, shall be deemed assessed and
51 subject to collection procedures on the date such notice is mailed
52 unless within thirty days after the mailing of such notice a report of
53 the federal or New York state change or correction or an amended return,
54 where such return was required by section 11-1922 of this chapter is
55 filed accompanied by a statement showing wherein such federal or New
S. 8578 1087
1 York state determination of such notice of additional tax due are erro-
2 neous.
3 (2) Such notice shall not be considered as a notice of deficiency for
4 the purposes of this section, subdivision (f) of section 11-1929 of this
5 subchapter, limiting credits or refunds after petition to the commis-
6 sioner, or subdivision (b) of section 11-1931 of this subchapter,
7 authorizing the filing of a petition with the commissioner based on a
8 notice of deficiency, nor shall the collection of such assessment be
9 prohibited by the provisions of subdivision (c) of this section.
10 If the taxpayer is deceased or under a legal disability, a notice of
11 additional tax due may be mailed to his or her last known address in or
12 out of the city, unless the commissioner has received notice of the
13 existence of a fiduciary relationship with respect to the taxpayer.
14 (f) Waiver of restrictions. The taxpayer shall at any time have the
15 right to waive the mailing of a notice of deficiency or restriction on
16 collection of the whole or any part of the deficiency, or both, by a
17 signed notice in writing filed with the commissioner.
18 (g) Deficiency defined. For purposes of this chapter, a deficiency
19 means the amount of the tax imposed by this chapter, less (1) the amount
20 shown as the tax upon the taxpayer's return, whether the return was made
21 or the tax computed by the taxpayer or by the commissioner, and less,
22 (2) the amounts previously assessed, or collected without assessment, as
23 a deficiency and plus (3) the amount of any rebates. For the purpose of
24 this definition, the tax imposed by this chapter and the tax shown on
25 the return shall both be determined without regard to payments on
26 account of estimated tax or the credit for withholding tax; and a rebate
27 means so much of an abatement, refund or other repayment, whether or not
28 erroneous, made on the ground that the amounts entering into the defi-
29 nition of a deficiency showed a balance in favor of the taxpayer.
30 § 11-1924 Assessment. (a) Assessment date. The amount of tax which a
31 return shows to be due, or the amount of tax which a return would have
32 shown to be due but for a mathematical error, shall be deemed to be
33 assessed on the date of filing of the return, including any amended
34 return showing an increase of tax. In the case of a return properly
35 filed without computation of tax, the tax computed by the commissioner
36 shall be deemed to be assessed on the date on which payment is due. If
37 a notice of deficiency has been mailed, the amount of the deficiency
38 shall be deemed to be assessed on the date on which it is mailed. If an
39 amended return or report filed pursuant to section 11-1922 of this chap-
40 ter concedes the accuracy of a federal or New York state adjustment,
41 change or correction, any deficiency in tax under this chapter resulting
42 therefrom shall be deemed to be assessed on the date of filing such
43 report or amended return, and such assessment shall be timely notwith-
44 standing section 11-1925 of this subchapter. If a notice of additional
45 tax due, as prescribed in subdivision (e) of section 11-1923 of this
46 subchapter, has been mailed, the amount of the deficiency shall be
47 deemed to be assessed on the date specified in such subdivision unless
48 within thirty days after the mailing of such notice a report of the
49 federal or New York state change or correction or an amended return,
50 where such return was required by section 11-1922 of this chapter, is
51 filed accompanied by a statement showing wherein such federal or New
52 York state determination and such notice of additional tax due are erro-
53 neous. Any amount paid as a tax or in respect of a tax, other than
54 amounts withheld at the source or paid as estimated income tax, shall be
55 deemed to be assessed upon the date of receipt of payment, notwithstand-
56 ing any other provisions.
S. 8578 1088
1 (b) Other assessment powers. If the mode or time for the assessment
2 of any tax under this chapter, including interest, additions to tax and
3 assessable penalties, is not otherwise provided for, the commissioner
4 may establish the same by regulations.
5 (d) Supplemental assessment. The commissioner may, at any time within
6 the period prescribed for assessment, make a supplemental assessment,
7 subject to the provisions of section 11-1923 of this subchapter where
8 applicable, whenever it is ascertained that any assessment is imperfect
9 or incomplete in any material respect.
10 (e) Cross reference. For assessment in case of jeopardy, see section
11 11-1937 of this subchapter.
12 § 11-1925 Limitations on assessment. (a) General. Except as otherwise
13 provided in this section, any tax under this chapter shall be assessed
14 within three years after the return was filed, whether or not such
15 return was filed on or after the date prescribed.
16 (b) Exceptions. (1) Assessment at any time. The tax may be assessed at
17 any time if:
18 (A) no return is filed,
19 (B) a false or fraudulent return is filed with intent to evade tax, or
20 (C) the taxpayer fails to comply with section 11-1922 of this chapter
21 in not reporting a change or correction increasing his or her federal or
22 New York state taxable income or self-employment income as reported on
23 the taxpayer's federal or New York state tax return, or the execution of
24 a notice of waiver and the changes or corrections on which it is based
25 or in not reporting an assessment or a change or correction which is
26 treated in the same manner as if it were a deficiency for federal or New
27 York state income tax purposes, or in not filing an amended return.
28 (2) Extension by agreement. Where, before the expiration of the time
29 prescribed in this section for the assessment of tax, both the commis-
30 sioner and the taxpayer have consented in writing to its assessment
31 after such time, the tax may be assessed at any time prior to the expi-
32 ration of the period agreed upon. The period so agreed upon may be
33 extended by subsequent agreements in writing made before the expiration
34 of the period previously agreed upon.
35 (3) Report of changed or corrected federal or New York state income.
36 If the taxpayer shall, pursuant to section 11-1922 of this chapter,
37 report a change or correction or file an amended return increasing the
38 taxpayer's federal or New York state taxable income or earnings from
39 self-employment or report an assessment or a change or correction which
40 is treated in the same manner as if it were a deficiency for federal or
41 New York state income tax purposes, the assessment, if not deemed to
42 have been made upon the filing of the report or amended return, may be
43 made at any time within two years after such report or amended return
44 was filed. The amount of such assessment of tax shall not exceed the
45 amount of the increase in city tax on earnings attributable to such
46 federal or New York state change or correction. The provisions of this
47 paragraph shall not affect the time within which or the amount for which
48 an assessment may otherwise be made.
49 (4) Recovery of erroneous refund. An erroneous refund shall be consid-
50 ered an underpayment of tax on the date made, and an assessment of a
51 deficiency arising out of an erroneous refund may be made at any time
52 within two years from the making of the refund, except that the assess-
53 ment may be made within five years from the making of the refund if it
54 appears that any part of the refund was induced by fraud or misrepresen-
55 tation of a material fact.
S. 8578 1089
1 (5) Request for prompt assessment. If a return is required for a dece-
2 dent or for the decedent's estate during the period of administration,
3 the tax shall be assessed within eighteen months after written request
4 therefor, made after the return is filed, by the executor, administrator
5 or other person representing the estate of such decedent, but not more
6 than three years after the return was filed, except as otherwise
7 provided in this subdivision and subdivision (c) of this section.
8 (c) Omission of income on return. The tax may be assessed at any time
9 within six years after the return was filed if a taxpayer omits from a
10 return an amount properly includible therein which is in excess of twen-
11 ty-five per centum of the amount of the gross income derived by the
12 taxpayer from any trade or business.
13 For purposes of this subdivision there shall not be taken into account
14 any amount which is omitted in the return if such amount is disclosed in
15 the return, or in a statement attached to the return, in a manner
16 adequate to apprise the commissioner of the nature and amount of such
17 item.
18 (d) Suspension of running of period of limitation. The running of the
19 period of limitations on or collection of tax or other amount, or of a
20 transferee's liability, shall, after the mailing of a notice of defi-
21 ciency, be suspended for the period during which the commissioner is
22 prohibited under subdivision (c) of section 11-1923 of this subchapter
23 collecting by levy or proceeding in court.
24 § 11-1926 Interest on underpayment. (a) General. If any amount of tax
25 is not paid on or before the last date prescribed in this chapter for
26 payment, interest on such amount at the appropriate rates prescribed for
27 underpayments of tax under chapter seventeen of this title shall be paid
28 for the period from such last date to the date paid, whether or not any
29 extension of time for payment was granted. Interest under this subdivi-
30 sion shall not be paid if the amount thereof is less than one dollar.
31 If the time for filing a return of tax withheld by an employer is
32 extended, the employer shall pay interest for the period for which the
33 extension is granted and may not charge such interest to the employee.
34 (c) Exception for mathematical error. No interest shall be imposed on
35 any underpayment of tax due solely to mathematical error if the taxpayer
36 files a return within the time prescribed in this chapter, including any
37 extension of time, and pays the amount of underpayment within three
38 months after the due date of such return, as it may be extended.
39 (d) No interest on interest. No interest under this chapter shall be
40 imposed on any interest provided by this chapter.
41 (e) Suspension of interest on deficiencies. If a waiver of
42 restrictions on collection of an assessment of a deficiency has been
43 filed by the taxpayer, and if notice and demand by the commissioner for
44 payment of such assessed deficiency is not made within thirty days after
45 the filing of such waiver, interest shall not be imposed on such defi-
46 ciency for the period beginning immediately after such thirtieth day and
47 ending with the date of notice and demand.
48 (f) Interest treated as tax. Interest under this section shall be
49 paid upon notice and demand and shall be assessed, collected and paid in
50 the same manner as tax. Any reference in this chapter to the tax
51 imposed by this chapter shall be deemed also to refer to interest
52 imposed by this section on such tax.
53 (g) Interest on penalties or additions to tax. Interest shall be
54 imposed under subdivision (a) of this section in respect of any assess-
55 able penalty or addition to tax only if such assessable penalty or addi-
56 tion to tax is not paid within ten days from the date of the notice and
S. 8578 1090
1 demand therefor under subdivision (b) of section 11-1934 of this
2 subchapter, and in such case interest shall be imposed only for the
3 period from such date of the notice and demand to the date of payment.
4 (h) Payment prior to notice of deficiency. If, prior to the mailing
5 to the taxpayer of a notice of deficiency under subdivision (b) of
6 section 11-1923 of this subchapter, the commissioner mails to the
7 taxpayer a notice of proposed increase of tax and within thirty days
8 after the date of the notice of proposed increase the taxpayer pays all
9 amounts shown on the notice to be due to the commissioner, no interest
10 under this section on the amount so paid shall be imposed for the period
11 after the date of such notice of proposed increase.
12 (i) Payment within ninety days after notice of deficiency. If a
13 notice of deficiency under section 11-1923 of this subchapter is mailed
14 to the taxpayer, and the total amount specified in such notice is paid
15 on or before the ninetieth day after the date of mailing, interest under
16 this section shall not be imposed for the period after the date of the
17 notice.
18 (j) Payment within ten days after notice and demand. If notice and
19 demand is made for payment of any amount under subdivision (b) of
20 section 11-1934 of this subchapter, and if such amount is paid within
21 ten days after the date of such notice and demand, interest under this
22 section on the amount so paid shall not be imposed for the period after
23 the date of such notice and demand.
24 (k) Limitation on assessment and collection. Interest prescribed
25 under this section may be assessed and collected at any time during the
26 period within which the tax or other amount to which such interest
27 relates may be assessed and collected, respectively.
28 (l) Interest on erroneous refund. Any portion of tax or other amount
29 which has been erroneously refunded, and which is recoverable by the
30 commissioner, shall bear interest at the rate of six per centum per
31 annum from the date of the payment of the refund, but only if it appears
32 that any part of the refund was induced by fraud or a misrepresentation
33 of a material fact.
34 (m) Satisfaction by credits. If any portion of a tax is satisfied by
35 credit of an overpayment, then no interest shall be imposed under this
36 section on the portion of the tax so satisfied for any period during
37 which, if the credit had not been made, interest would have been allow-
38 able with respect to such overpayment.
39 § 11-1927 Additions to tax and civil penalties. (a) Failure to file
40 tax return. In case of failure to file a tax return under this chapter
41 on or before the prescribed date, determined with regard to any exten-
42 sion of time for filing, unless it is shown that such failure is due to
43 reasonable cause and not due to willful neglect, there shall be added to
44 the amount required to be shown as tax on such return five percent of
45 the amount of such tax if the failure is for not more than one month,
46 with an additional five percent for each additional month or fraction
47 thereof during which such failure continues, not exceeding twenty-five
48 percent in the aggregate. For this purpose, the amount of tax required
49 to be shown on the return shall be reduced by the amount of any part of
50 the tax which is paid on or before the date prescribed for payment of
51 the tax and by the amount of any credit against the tax which may be
52 claimed upon the return.
53 (b) Deficiency due to negligence. If any part of a deficiency is due
54 to negligence or intentional disregard of this chapter or rules or regu-
55 lations hereunder, but without intent to defraud, there shall be added
56 to the tax an amount equal to five percent of the deficiency.
S. 8578 1091
1 (c) Failure to file declaration or underpayment of estimated tax. If
2 any taxpayer fails to file a declaration of estimated tax or fails to
3 pay all or any part of an installment of estimated tax, the taxpayer
4 shall be deemed to have made an underpayment of estimated tax. There
5 shall be added to the tax for the taxable year an amount at the rate of
6 six per centum upon the amount of the underpayment for the period of the
7 underpayment but not beyond the fifteenth day of the fourth month
8 following the close of the taxable year. The amount of underpayment
9 shall be the excess of the amount of the installment which would be
10 required to be paid if the estimated tax were equal to seventy percent
11 of the tax attributable to net earnings from self employment shown on
12 the tax return for the taxable year, or if no return was filed, of the
13 tax so attributable for such year, over the amount, if any, of the
14 installment paid on or before the last day prescribed for such payment.
15 No underpayment shall be deemed to exist with respect to a declaration
16 or installment otherwise due on or after the taxpayer's death.
17 (d) Exception to addition for underpayment of estimated tax. The addi-
18 tion to tax under subdivision (c) of this section with respect to any
19 underpayment of any installment shall not be imposed if the total amount
20 of all payments of estimated tax made on or before the last date
21 prescribed for the payment of such installment equals or exceeds which-
22 ever of the following is the lesser:
23 (1) The amount which would have been required to be paid on or before
24 such date if the estimated tax were whichever of the following is the
25 lesser:
26 (A) The tax attributable to net earnings from self-employment shown on
27 the return of the individual for the preceding taxable year, if a return
28 showing a liability for tax was filed by the individual for the preced-
29 ing taxable year and such preceding year was a taxable year of twelve
30 months, or
31 (B) An amount equal to seventy percent of the tax so attributable for
32 the taxable year computed by placing on an annualized basis the taxable
33 net earnings from self-employment for the months in the taxable year
34 ending before the month in which the installment is required to be paid.
35 For purposes of this subparagraph, the taxable net earnings from self-
36 employment shall be placed on an annualized basis by:
37 (i) multiplying by twelve, or, in the case of a taxable year of less
38 than twelve months, the number of months in the taxable year, the taxa-
39 ble net earnings from self-employment for the months in the taxable year
40 ending before the month in which the installment is required to be
41 paid,
42 (ii) dividing the resulting amount by the number of months in the
43 taxable year ending before the month in which such installment date
44 falls, and
45 (iii) deducting from such amount the proper proportion of the exclu-
46 sion allowable for the taxable year by subdivision (b) of section
47 11-1902 of this chapter; or
48 (2) An amount equal to ninety percent of the tax computed, at the
49 rates applicable to the taxable year, on the basis of the actual taxable
50 net earnings from self-employment for the months in the taxable year
51 ending before the month in which the installment is required to be paid.
52 (e) Deficiency due to fraud. If any part of a deficiency is due to
53 fraud, there shall be added to the tax an amount equal to fifty percent
54 of the deficiency. This amount shall be in lieu of any other addition
55 to tax imposed by subdivision (a) or (b) of this section.
S. 8578 1092
1 (f) Non-willful failure to pay withholding tax. If any employer, with-
2 out intent to evade or defeat any tax imposed by this chapter or the
3 payment thereof, shall fail to make a return and pay a tax withheld by
4 him or her at the time required by or under provisions of section
5 11-1912 of this chapter, such employer shall be liable for such tax and
6 shall pay the same together with interest thereon and the addition to
7 tax provided in subdivision (a) of this section, and such interest and
8 addition to tax shall not be charged to or collected from the employee
9 by the employer. The commissioner shall have the same rights and powers
10 for the collection of such tax, interest and addition to tax against
11 such employer as are now prescribed by this chapter for the collection
12 of tax against an individual taxpayer.
13 (g) Willful failure to collect and pay over tax. Any person required
14 to collect, truthfully account for, and pay over the tax imposed by this
15 chapter who willfully fails to collect such tax or truthfully account
16 for and pay over such tax or willfully attempts in any manner to evade
17 or defeat the tax or the payment thereof, shall, in addition to other
18 penalties provided by law, be liable to a penalty equal to the total
19 amount of the tax evaded, or not collected, or not accounted for and
20 paid over. No addition to tax under subdivision (b) or (e) of this
21 section shall be imposed for any offense to which this subdivision
22 applies.
23 (h) Failure to file certain information returns. In case of each fail-
24 ure to file a statement of a payment to another person, required under
25 authority of subdivision (c) of section 11-1921 of this chapter, relat-
26 ing to information at source, including the duplicate statement of tax
27 withheld on wages, on the date prescribed therefor, determined with
28 regard to any extension of time for filing, unless it is shown that such
29 failure is due to reasonable cause and not willful neglect, there shall,
30 upon notice and demand by the commissioner and in the same manner as
31 tax, be paid by the person so failing to file the statement, a penalty
32 of one dollar for each statement not so filed, but the total amount
33 imposed on the delinquent person for all such failures during any calen-
34 dar year shall not exceed one thousand dollars.
35 (i) Additional penalty. Any person who with fraudulent intent shall
36 fail to pay, or to deduct or withhold and pay, any tax, or to make,
37 render, sign or certify any return or declaration of estimated tax, or
38 to supply any information within the time required by or under this
39 chapter, shall be liable to a penalty of not more than one thousand
40 dollars, in addition to any other amounts required under this chapter,
41 to be imposed, assessed and collected by the commissioner. The commis-
42 sioner shall have the power, in his or her discretion, to waive, reduce
43 or compromise any penalty under this subdivision.
44 (j) Additions treated as tax. The additions to tax and penalties
45 provided by this section shall be paid upon notice and demand and shall
46 be assessed, collected and paid in the same manner as taxes, and any
47 reference in this chapter to tax or tax imposed by this chapter, shall
48 be deemed also to refer to the additions to tax and penalties provided
49 by this section. For purposes of section 11-1923 of this subchapter,
50 this subdivision shall not apply to:
51 (1) any addition to tax under subdivision (a) of this section except
52 as to that portion attributable to a deficiency;
53 (2) any addition to tax under subdivision (c) of this section; and
54 (3) any additional penalty under subdivision (i) of this section.
55 (k) Determination of deficiency. For purposes of subdivisions (b) and
56 (e) of this section, the amount shown as the tax by the taxpayer upon
S. 8578 1093
1 his or her return shall be taken into account in determining the amount
2 of the deficiency only if such return was filed on or before the last
3 day prescribed for the filing of such return, determined with regard to
4 any extension of time for such filing.
5 (l) Person defined. For purposes of subdivisions (g) and (i) of this
6 section, the term "person" includes an individual, corporation or part-
7 nership or an officer or employee of any corporation, including a
8 dissolved corporation, or a member or employee of any partnership, who
9 as such officer, employee, or member is under a duty to perform the act
10 in respect of which the violation occurs.
11 § 11-1928 Overpayment. (a) General. The commissioner, within the
12 applicable period of limitations, may credit an overpayment of tax and
13 interest on such overpayment against any liability in respect of any tax
14 imposed by this chapter or by another chapter or chapters of this title
15 on the person who made the overpayment, and the balance shall be
16 refunded. Any refund under this section shall be made only upon the
17 filing of a return.
18 (b) Excessive withholding. If the amount allowable as a credit for tax
19 withheld from the taxpayer exceeds his or her tax to which the credit
20 relates, the excess shall be considered an overpayment.
21 (c) Overpayment by employer. If there has been an overpayment of tax
22 required to be deducted and withheld under section 11-1908 of this chap-
23 ter, refund shall be made to the employer only to the extent that the
24 amount of the overpayment was not deducted and withheld by the employer.
25 (d) Credits against estimated tax. The commissioner may prescribe
26 regulations providing for the crediting against the estimated tax for
27 any taxable year of the amount determined to be an overpayment of the
28 tax for a preceding taxable year. If any overpayment of tax is so
29 claimed as a credit against estimated tax for the succeeding taxable
30 year, such amount shall be considered as a payment of the tax for the
31 succeeding taxable year, whether or not claimed as a credit in the
32 declaration of estimated tax for such succeeding taxable year, and no
33 claim for credit or refund of such overpayment shall be allowed for the
34 taxable year for which the overpayment arises.
35 (e) Rule where no tax liability. If there is no tax liability for a
36 period in respect of which an amount is paid as tax, such amount shall
37 be considered an overpayment.
38 (f) Assessment and collection after limitation period. If any amount
39 of tax is assessed or collected after the expiration of the period of
40 limitations properly applicable thereto, such amount shall be considered
41 an overpayment.
42 (g) Notwithstanding any provision of law in article fifty-two of the
43 civil practice law and rules to the contrary, the procedures for the
44 enforcement of money judgments shall not apply to the department of
45 finance, or to any officer or employee of the department of finance, as
46 a garnishee, with respect to any amount of money to be refunded or cred-
47 ited to a taxpayer under this chapter.
48 § 11-1929 Limitations on credit or refund. (a) General. Claim for
49 credit or refund of an overpayment of tax shall be filed by the taxpayer
50 within three years from the time the return was filed or two years from
51 the time the tax was paid, whichever of such periods expires the later,
52 or if no return was filed, within two years from the time the tax was
53 paid. If the claim is filed within the three year period, the amount of
54 the credit or refund shall not exceed the portion of the tax paid within
55 the three years immediately preceding the filing of the claim plus the
56 period of any extension of time for filing the return. If the claim is
S. 8578 1094
1 not filed within the three year period, but is filed within the two year
2 period, the amount of the credit or refund shall not exceed the portion
3 of the tax paid during the two years immediately preceding the filing of
4 the claim. Except as otherwise provided in this section, if no claim is
5 filed, the amount of a credit or refund shall not exceed the amount
6 which would be allowable if a claim had been filed on the date the cred-
7 it or refund is allowed.
8 (b) Extension of time by agreement. If an agreement under the
9 provisions of paragraph two of subdivision (b) of section 11-1925 of
10 this subchapter, extending the period for assessment of tax, is made
11 within the period prescribed in subdivision (a) of this section for the
12 filing of a claim for credit or refund, the period for filing a claim
13 for credit or refund, or for making credit or refund if no claim is
14 filed, shall not expire prior to six months after the expiration of the
15 period within which an assessment may be made pursuant to the agreement
16 or any extension thereof. The amount of such credit or refund shall not
17 exceed the portion of the tax paid after the execution of the agreement
18 and before the filing of the claim or the making of the credit or
19 refund, as the case may be, plus the portion of the tax paid within the
20 period which would be applicable under subdivision (a) of this section
21 if a claim had been filed on the date the agreement was executed.
22 (c) Notice of change or correction of federal or New York state
23 income. If a taxpayer is required by section 11-1922 of this chapter to
24 report a change or correction in federal or New York state taxable
25 income or self-employment income reported on his or her federal or New
26 York state tax return, or to report an assessment or a change or
27 correction which is treated in the same manner as if it were an overpay-
28 ment for federal or New York state income tax purposes, or to file an
29 amended return with the commissioner, claim for credit or refund of any
30 resulting overpayment of tax shall be filed by the taxpayer within two
31 years from the time the notice of such change or correction or such
32 amended return was required to be filed with the commissioner. If the
33 report or amended return required by section 11-1922 of this chapter is
34 not filed within the ninety day period therein specified, interest on
35 any resulting refund or credit shall cease to accrue after such nineti-
36 eth day. The amount of such credit or refund shall not exceed the
37 amount of the reduction in tax attributable to such federal or New York
38 state change, correction or items amended on the taxpayer's amended
39 federal or New York state income tax or self-employment tax return.
40 This subdivision shall not affect the time within which or the amount
41 for which a claim for credit or refund may be filed apart from this
42 subdivision.
43 (d) Failure to file claim within prescribed period. No credit or
44 refund shall be allowed or made, except as provided in subdivision (e)
45 of this section or subdivision (d) of section 11-1932 of this subchapter
46 after the expiration of the applicable period of limitation specified in
47 this chapter unless a claim for credit or refund is filed by the taxpay-
48 er within such period. Any later credit shall be void and any later
49 refund erroneous. No period of limitations specified in any other law
50 shall apply to the recovery by a taxpayer of moneys paid in respect of
51 taxes under this chapter.
52 (e) Effect of petition to commissioner. If a notice of deficiency for
53 a taxable year has been mailed to the taxpayer under section 11-1923 of
54 this subchapter and if the taxpayer files a timely petition with the
55 commissioner under section 11-1931 of this subchapter, the commissioner
56 may determine that the taxpayer has made an overpayment for such year,
S. 8578 1095
1 whether or not the commissioner also determines a deficiency for such
2 year. No separate claim for credit or refund for such year shall be
3 filed, and no credit or refund for such year shall be allowed or made,
4 except:
5 (1) as to overpayments determined by a decision of the commissioner
6 which has become final;
7 (2) as to any amount collected in excess of an amount computed in
8 accordance with the decision of the commissioner which has become final;
9 (3) as to any amount collected after the period of limitation upon the
10 making of levy for collection has expired; and
11 (4) as to any amount claimed as a result of a change or correction
12 described in subdivision (c) of this section.
13 (f) Limit on amount of credit or refund. The amount of overpayment
14 determined under subdivision (e) of this section shall, when the deci-
15 sion of the commissioner has become final, be credited or refunded in
16 accordance with subdivision (a) of section 11-1928 of this subchapter
17 and shall not exceed the amount of tax which the commissioner determines
18 as part of his or her decision was paid:
19 (1) after the mailing of the notice of deficiency, or
20 (2) within the period which would be applicable under subdivision (a),
21 (b) or (c) of this section, if on the date of the mailing of the notice
22 of deficiency a claim has been filed, whether or not filed, stating the
23 grounds upon which the commissioner finds that there is an overpayment.
24 (g) Early return. For purposes of this section, any return filed
25 before the last day prescribed for the filing thereof shall be consid-
26 ered as filed on such last day, determined without regard to any exten-
27 sion of time granted the taxpayer.
28 (h) Prepaid tax. For purposes of this section, any tax paid by the
29 taxpayer before the last day prescribed for its payment, any tax with-
30 held from the taxpayer during any calendar year, and any amount paid by
31 the taxpayer as estimated tax for a taxable year shall be deemed to have
32 been paid by the taxpayer on the fifteenth day of the fourth month
33 following the close of his or her taxable year with respect to which
34 such amount constitutes a credit or payment.
35 (i) Return and payment of withholding tax. Notwithstanding subdivision
36 (g) of this section, for purposes of this section with respect to any
37 withholding tax:
38 (1) if a return for any period ending with or within a calendar year
39 is filed before April fifteenth of the succeeding calendar year, such
40 return shall be considered filed on April fifteenth of such succeeding
41 calendar year; and
42 (2) if a tax with respect to remuneration paid during any period
43 ending with or within a calendar year is paid before April fifteenth of
44 the succeeding calendar year, such tax shall be considered paid on April
45 fifteenth of such succeeding calendar year.
46 (j) Cross reference. For provision barring refund of overpayment cred-
47 ited against tax of a succeeding year, see subdivision (d) of section
48 11-1928 of this subchapter.
49 § 11-1930 Interest on overpayment. (a) General. Notwithstanding the
50 provisions of section three-a of the general municipal law, interest
51 shall be allowed and paid as follows at the appropriate rates prescribed
52 for overpayments of tax under chapter seventeen of this title upon any
53 overpayment in respect of the tax imposed by this chapter:
54 (1) from the date of the overpayment to the due date of an amount
55 against which a credit is taken; or
S. 8578 1096
1 (2) from the date of the overpayment to a date, to be determined by
2 the commissioner, preceding the date of a refund check by not more than
3 thirty days, whether or not such refund check is accepted by the taxpay-
4 er after tender of such check to the taxpayer. The acceptance of such
5 check shall be without prejudice to any right of the taxpayer to claim
6 any additional overpayment and interest thereon.
7 No interest shall be allowed or paid if the amount thereof is less
8 than one dollar.
9 (b) Advance payment of tax, payment of estimated tax, and credit for
10 tax withholding. The provisions of subdivisions (g), (h) and (i) of
11 section 11-1929 of this subchapter applicable in determining the date of
12 payment of tax for purposes of determining the period of limitations on
13 credit or refund, shall be applicable in determining the date of payment
14 for purposes of this section.
15 (c) Refund within three months of due date of tax. If any overpayment
16 of tax imposed by this chapter is refunded within three months after the
17 last date prescribed, or permitted by extension of time, for filing the
18 return of such tax or within three months after the return was filed,
19 whichever is later, no interest shall be allowed under this section on
20 such overpayment.
21 (d) Cross-reference. For provision terminating interest after failure
22 to file notice of federal or New York state change under section 11-1922
23 of this chapter, see subdivision (c) of 11-1929 of this subchapter.
24 § 11-1931 Petition to commissioner. (a) General. The form of a peti-
25 tion to the commissioner, and further proceedings before the commission-
26 er in any case initiated by the filing of a petition, shall be governed
27 by such rules as the commissioner shall prescribe. No petition shall be
28 denied in whole or in part without opportunity for a hearing on reason-
29 able prior notice. Such hearing shall be conducted by the commissioner,
30 or by a hearing officer designated by the commissioner to take evidence
31 and report to the commissioner. The commissioner shall decide the case
32 as quickly as practicable. Notice of the decision shall be mailed
33 promptly to the taxpayer by certified or registered mail at his or her
34 last known address and such notice shall set forth the commissioner's
35 findings of fact and a brief statement of the grounds of decision in
36 each case decided in whole or in part adversely to the taxpayer. Any
37 portion of an assessment of a deficiency disallowed by the commission-
38 er's decision, shall be forthwith abated, or if paid, credited or
39 refunded to the taxpayer without the making of a claim therefor.
40 (b) Petition for redetermination of a deficiency. Within ninety days,
41 or one hundred fifty days if the notice is addressed to a person outside
42 of the United States, after the mailing of the notice of deficiency
43 authorized by section 11-1923 of this subchapter, the taxpayer may file
44 a petition with the commissioner for a redetermination of the deficien-
45 cy. Such petition may also assert a claim for refund for the same taxa-
46 ble year or years, subject to the limitations of subdivision (f) of
47 section 11-1929 of this subchapter.
48 (c) Petition for refund. A taxpayer may file a petition with the
49 commissioner for the amounts asserted in a claim for refund if:
50 (1) the taxpayer has filed a timely claim for refund with the commis-
51 sioner,
52 (2) the taxpayer has not previously filed with the commissioner a
53 timely petition under subdivision (b) of this section for the same
54 taxable year unless the petition under this subdivision relates to a
55 separate claim for credit or refund properly filed under subdivision (e)
56 of section 11-1929 of this subchapter, and
S. 8578 1097
1 (3) either: (A) six months have expired since the claim was filed, or
2 (B) the commissioner has mailed to the taxpayer, by registered or certi-
3 fied mail, a notice of disallowance of such claim in whole or in part.
4 No petition under this subdivision shall be filed more than two years
5 after the date of mailing of a notice of disallowance, unless prior to
6 the expiration of such a two-year period it has been extended by writ-
7 ten agreement between the taxpayer and the commissioner. If a taxpayer
8 files a written waiver of the requirement that he or she be mailed a
9 notice of disallowance, the two year period prescribed by this subdivi-
10 sion for filing a petition for refund shall begin on the date such waiv-
11 er is filed.
12 (d) Assertion and assessment of deficiency after filing petition.
13 (1) Petition for redetermination of deficiency. If a taxpayer files
14 with the commissioner a petition for redetermination of a deficiency,
15 the commissioner shall have power to determine and assess a greater
16 deficiency than asserted in the notice of deficiency and to determine
17 and assess any addition to tax or penalty provided in section 11-1927 of
18 this subchapter, if claim therefor is asserted at or before the hearing
19 and within the period in which an assessment would be timely under
20 section 11-1925 of this subchapter under the rules of the commissioner.
21 (2) Petition for refund. If the taxpayer files with the commissioner a
22 petition for credit or refund for a taxable year, the commissioner may:
23 (A) determine and assess a deficiency for such year as to any amount
24 of deficiency claim, which shall be an assessment, for which is asserted
25 at or before the hearing under rules of the commissioner, and within the
26 period in which an assessment would be timely under section 11-1925 of
27 this subchapter, or
28 (B) deny so much of the amount for which credit or refund is sought in
29 the petition, as is offset by other issues pertaining to the same taxa-
30 ble year which are asserted at or before the hearing under rules of the
31 commissioner.
32 (3) Opportunity to respond. A taxpayer shall be given a reasonable
33 opportunity to respond to any matters asserted by the commissioner under
34 this subdivision.
35 (4) Restriction on further notices of deficiency. If the taxpayer
36 files a petition with the commissioner under this section, no notice of
37 deficiency under section 11-1923 of this subchapter may thereafter be
38 issued by the commissioner for the same taxable year, except in case of
39 fraud or with respect to a change or correction in federal or New York
40 state taxable income or self-employment income required to be reported
41 under section 11-1922 of this chapter.
42 (e) Burden of proof. In any case before the commissioner under this
43 chapter, the burden of proof shall be upon the petitioner except for the
44 following issues, as to which the burden of proof shall be upon the
45 commissioner:
46 (1) whether the petitioner has been guilty of fraud with intent to
47 evade tax;
48 (2) whether the petitioner is liable as the transferee of property of
49 a taxpayer, except where the petitioner's liability arises by reason of
50 section 11-1936 of this subchapter, but not to show that the taxpayer
51 was liable for the tax; and
52 (3) whether the petitioner is liable for any increase in a deficiency
53 where such increase is asserted initially after a notice of deficiency
54 was mailed and a petition under this section filed, unless such increase
55 in deficiency is the result of a change or correction of federal or New
56 York state taxable income or self-employment income required to be
S. 8578 1098
1 reported under section 11-1922 of this chapter, and of which change or
2 correction the commissioner had no notice at the time he or she mailed
3 the notice of deficiency.
4 (f) Evidence of related federal determination. Evidence of a federal
5 determination relating to issues raised in a case before the commission-
6 er under this section shall be admissible, under rules established by
7 the commissioner.
8 (g) Jurisdiction over other years. The commissioner shall consider
9 such facts with relation to the taxes for other years as may be neces-
10 sary correctly to determine the tax for the taxable year, but in so
11 doing shall have no jurisdiction to determine whether or not the tax for
12 any other year has been overpaid or underpaid.
13 § 11-1932 Review of commissioner's decision. (a) General. A decision
14 of the commissioner shall be subject to judicial review for error, ille-
15 gality or unconstitutionality at the instance of any taxpayer affected
16 thereby in the manner provided by law for the review of a final decision
17 or action of administrative agencies of the city. An application by a
18 taxpayer for such review must be made within four months after notice of
19 the decision is sent by certified or registered mail to the taxpayer.
20 (b) Judicial review exclusive remedy of taxpayer. The review of a
21 decision of the commissioner provided by this section shall be exclusive
22 remedy available to any taxpayer for the judicial determination of the
23 liability of the taxpayer for the taxes imposed by this chapter.
24 (c) Collection pending review; review bond. Irrespective of any
25 restrictions on the collection of assessments for deficiencies, the
26 commissioner may collect by levy or, otherwise any assessment of a defi-
27 ciency after the expiration of the period specified in subdivision (a)
28 of this section, notwithstanding that an application for judicial review
29 in respect of such deficiency has been duly made by the taxpayer, unless
30 the taxpayer, at or before the time his or her application for review is
31 made, has paid the assessed deficiency, has deposited with the commis-
32 sioner the amount of the assessed deficiency, or has filed with the
33 commissioner a bond, which may be a jeopardy bond under subdivision (h)
34 of section 11-1937 of this subchapter, in the amount of the portion of
35 the assessed deficiency, including interest and other amounts, in
36 respect of which the application for review is made with surety approved
37 by a justice of the supreme court of the state of New York, conditioned
38 upon the payment of the assessed deficiency, including interest and
39 other amounts, as finally determined. If as a result of a waiver of the
40 restrictions on the collection of a deficiency any part of the amount
41 determined by the commissioner is paid after the filing of the review
42 bond, such bond shall, at the request of the taxpayer, be proportionate-
43 ly reduced. A similar bond for all costs and charges which may accrue
44 against the taxpayer in the prosecution of such judicial review proceed-
45 ing must be filed with the commissioner before any such proceeding is
46 instituted.
47 (d) Credit, refund or abatement after review. If the amount of a defi-
48 ciency assessed and determined by the commissioner is disallowed in
49 whole or in part by the court of review, the amount so disallowed shall
50 be credited or refunded to the taxpayer, without the making of claim
51 therefor, or, if payment has not been made, shall be abated.
52 (e) Date of finality of commissioner's decision. A decision of the
53 commissioner shall become final upon the expiration of the period speci-
54 fied in subdivision (a) of this section for making an application for
55 review, if no such application has been duly made within such time, or
56 if such application has been duly made, upon expiration of the time for
S. 8578 1099
1 all further judicial review, or upon the rendering by the commissioner
2 of a decision in accordance with the mandate of the court on review.
3 Provided, however, for the purpose of making an application for review,
4 the decision of the commissioner shall be deemed final on the date the
5 notice of decision is sent by certified or registered mail to the
6 taxpayer.
7 § 11-1933 Mailing rules; holidays. (a) Timely mailing. If any claim,
8 statement, notice, petition, or other document, including to the extent
9 authorized by the commissioner, a return or declaration of estimated
10 tax, required to be filed within a prescribed period or on or before a
11 prescribed date under authority of any provision of this chapter is,
12 after such period or such date, delivered by the United States mail to
13 the commissioner, bureau, office, officer or person with which or with
14 whom such document is required to be filed, the date of the United
15 States postmark stamped on the envelope shall be deemed to be the date
16 of delivery. This subdivision shall apply only if the postmark date
17 falls within the prescribed period or on or before the prescribed date
18 for the filing of such document, determined with regard to any extension
19 granted for such filing, and only if such document was deposited in the
20 mail, postage prepaid, properly addressed to the commissioner, bureau,
21 office, officer or person with which or with whom the document is
22 required to be filed. If any document is sent by United States regis-
23 tered mail, such registration shall be prima facie evidence that such
24 document was delivered to the commissioner, bureau, office, officer or
25 person to which or to whom addressed. To the extent that the commis-
26 sioner shall prescribe by regulation, certified mail may be used in lieu
27 of registered mail under this section. This subdivision shall apply in
28 the case of postmarks not made by the United States post office only if
29 and to the extent provided by regulations of the commissioner.
30 (b) Last known address. For purposes of this chapter, a taxpayer's
31 last known address shall be the address given in the last return filed
32 by the taxpayer, unless subsequent to the filing of such return the
33 taxpayer shall have notified the commissioner of a change of address.
34 (c) Last day a Saturday, Sunday or legal holiday. When the last day
35 prescribed under authority of this chapter, including any extension of
36 time, for performing any act falls on Saturday, Sunday, or a legal holi-
37 day in the state of New York, the performance of such act shall be
38 considered timely if it is performed on the next succeeding day which is
39 not a Saturday, Sunday or a legal holiday.
40 § 11-1934 Collection, levy and liens. (a) Collection procedures. The
41 taxes imposed by this chapter shall be collected by the commissioner,
42 and he or she may establish the mode or time for the collection of any
43 amount due the commissioner under this chapter if not otherwise speci-
44 fied. The commissioner shall, upon request, give a receipt for any sum
45 collected under this chapter. The commissioner may authorize banks or
46 trust companies which are depositories or financial agents of the city
47 to receive and give a receipt for any tax imposed under this chapter in
48 such manner, at such times, and under such conditions as the commission-
49 er may prescribe; and the commissioner shall prescribe the manner, times
50 and conditions under which the receipt of such tax by such banks and
51 trust companies is to be treated as payment of such tax to the commis-
52 sioner.
53 (b) Notice and demand for tax. The commissioner shall as soon as prac-
54 ticable and, in the case of an assessment the collection of which is
55 restricted by the provisions of subdivision (c) of section 11-1923 of
56 this subchapter, as soon as practicable after the expiration of such
S. 8578 1100
1 restrictions give notice to each person liable for any amount of tax,
2 addition to tax, penalty or interest, which has been assessed but
3 remains unpaid, stating the amount and demanding payment thereof. Such
4 notice shall be left at the dwelling or usual place of business of such
5 person or shall be sent by mail to such person's last known address.
6 Except where the commissioner determines that collection would be jeop-
7 ardized by delay, if any tax is assessed prior to the last date, includ-
8 ing any date fixed by extension, prescribed for payment of such tax,
9 payment of such tax shall not be demanded until after such date.
10 (c) Issuance of warrant after notice and demand. If any person liable
11 under this chapter for the payment of any tax, addition to tax, penalty
12 or interest neglects or refuses to pay the same within ten days after
13 notice and demand therefor is given to such person under subdivision (b)
14 of this section, the commissioner may within six years after the date of
15 the expiration of the period of restriction on the collection of such
16 assessment issue a warrant directed to the sheriff of any county of the
17 state, or to any officer or employee of the department of finance of the
18 city, commanding the sheriff or such officer or employee to levy upon
19 and sell such person's real and personal property for the payment of the
20 amount assessed, with the cost of executing the warrant, and to return
21 such warrant to the commissioner and pay to him or her the money
22 collected by virtue thereof within sixty days after the receipt of the
23 warrant. If the commissioner finds that the collection of tax or other
24 amount is in jeopardy, notice and demand for immediate payment of such
25 tax may be made by the commissioner and upon failure or refusal to pay
26 such tax or other amount the commissioner may issue a warrant without
27 regard to the ten-day period provided in this subdivision.
28 (d) Copy of warrant to be filed and lien to be created. Any sheriff or
29 officer or employee who receives a warrant under subdivision (c) of this
30 section shall within five days thereafter file a copy with the clerk of
31 the appropriate county. The clerk shall thereupon enter in the judgment
32 docket, in the column for judgment debtors, the name of the taxpayer
33 mentioned in the warrant, and in appropriate columns the tax or other
34 amounts for which the warrant is issued and the date when such copy is
35 filed; and such amount shall thereupon be a binding lien upon the real,
36 personal and other property of the taxpayer.
37 (e) Judgment. When a warrant has been filed with the county clerk the
38 commissioner shall, on behalf of the city, be deemed to have obtained
39 judgment against the taxpayer for the tax or other amounts.
40 (f) Execution. The sheriff or officer or employee shall thereupon
41 proceed upon the judgment in all respects, with like effect, and in the
42 same manner prescribed by law in respect to executions issued against
43 property upon judgments of a court of record, and a sheriff shall be
44 entitled to the same fees for such sheriff's services in executing the
45 warrant, to be collected in the same manner. An officer or employee of
46 the department of finance of the city may proceed in any county or coun-
47 ties of this state and shall have all the powers of execution conferred
48 by law upon sheriffs, but shall be entitled to no fee or compensation in
49 excess of actual expenses paid in connection with the execution of the
50 warrant.
51 (g) Taxpayer not then a resident. Where a notice and demand under
52 subdivision (b) of this section shall have been given to a taxpayer who
53 is not then a resident of this state, and it appears to the commissioner
54 that it is not practicable to find in this state property of the taxpay-
55 er sufficient to pay the entire balance of tax or other amount owing by
56 such taxpayer who is not then a resident of this state, the commissioner
S. 8578 1101
1 may, in accordance with subdivision (c) of this section, issue a warrant
2 directed to an officer or employee of the department of finance of the
3 city a copy of which warrant shall be mailed by certified or registered
4 mail to the taxpayer at his or her last known address, subject to the
5 rules for mailing provided in subdivision (a) of section 11-1933 of this
6 subchapter. Such warrant shall command the officer or employee to
7 proceed in the city, and such officer or employee shall, within five
8 days after receipt of the warrant, file the warrant and obtain a judg-
9 ment in accordance with this section. Thereupon the commissioner may
10 authorize the institution of any action or proceeding to collect or
11 enforce the judgment in any place and by any procedure where and by
12 which a civil judgment of the supreme court of the state of New York
13 could be collected or enforced. The commissioner may also, in his or
14 her discretion, designate agents or retain counsel for the purpose of
15 collecting, outside the state of New York, any unpaid taxes, additions
16 to tax, penalties or interest which have been assessed under this chap-
17 ter against taxpayers who are not then residents of this state, may fix
18 the compensation of such agents and counsel to be paid out of money
19 appropriated or otherwise lawfully available for payment thereof, and
20 may require of them bonds or other security for the faithful performance
21 of their duties, in such form and in such amount as the commissioner
22 shall deem proper and sufficient.
23 (h) Action by the city for recovery of taxes. Action may be brought by
24 the corporation counsel or other appropriate officer of the city at the
25 insistence of the commissioner to recover the amount of any unpaid
26 taxes, additions to tax, penalties or interest which have been assessed
27 under this chapter within six years prior to the date the action is
28 commenced. The period during which collection of any assessment is
29 prohibited by subdivision (c) of section 11-1923 of this subchapter,
30 shall be added to such six years.
31 (i) Release of lien. The commissioner, if he or she finds that the
32 interest of the city will not thereby be jeopardized, and upon such
33 conditions as may require, may release any property from the lien of any
34 warrant for unpaid taxes, additions to tax, penalties and interest filed
35 pursuant to this section, and such release may be recorded in the office
36 of any recording officer in which such warrant has been filed.
37 § 11-1935 Transferees. (a) General. The liability, at law or in equi-
38 ty, of a transferee of property of a taxpayer for any tax, additions to
39 tax, penalty or interest due to the city under this chapter, shall be
40 assessed, paid, and collected in the same manner and subject to the same
41 provisions and limitations as in the case of the tax to which liability
42 relates, except that the period of limitations for assessment against
43 the transferee shall be extended by one year for each successive trans-
44 fer, in order, from the original taxpayer to the transferee involved,
45 but not by more than three years in the aggregate. The term "transfer-
46 ee" includes donee, heir, legatee, devisee and distributee; and also
47 includes a person liable for the amount of any tax, additions to tax,
48 penalty or interest under the provisions of section 11-1936 of this
49 subchapter.
50 (b) Exceptions. (1) If before the expiration of the period of limita-
51 tions for assessment of liability of the transferee, a claim has been
52 filed by the commissioner in any court against the original taxpayer or
53 the last preceding transferee based upon the liability of the original
54 taxpayer, then the period of limitation for assessment of liability of
55 the transferee shall in no event expire prior to one year after such
56 claim has been finally allowed, disallowed or otherwise disposed of.
S. 8578 1102
1 (2) If, before the expiration of the time prescribed in subdivision
2 (a) of this section or paragraph one of this subdivision for the assess-
3 ment of the liability, the commissioner and the transferee have both
4 consented in writing to its assessment after such time, the liability
5 may be assessed at any time prior to the expiration of the period agreed
6 upon. The period so agreed upon may be extended by subsequent agree-
7 ments in writing made before the expiration of the period previously
8 agreed upon. For the purpose of determining the period of limitation on
9 credit or refund to the transferee of overpayments of tax made by such
10 transferee or overpayments of tax made by the transferor as to which the
11 transferee is legally entitled to credit or refund, such agreement and
12 any extension thereof shall be deemed an agreement and extension thereof
13 referred to in subdivision (b) of section 11-1929 of this subchapter.
14 If the agreement is executed after the expiration of the period of limi-
15 tation for assessment against the original taxpayer, then in applying
16 the limitations under subdivision (b) of section 11-1929 of this
17 subchapter on the amount of the credit or refund, the periods specified
18 in subdivision (a) of section 11-1929 of this subchapter shall be
19 increased by the period from the date of such expiration to the date of
20 the agreement.
21 (c) Deceased transferor. If any person is deceased, the period of
22 limitation for assessment against such person shall be the period that
23 would be in effect if he or she had lived.
24 (d) Evidence. Notwithstanding the provisions of section 11-1942 of
25 this subchapter, the commissioner shall use his or her powers to make
26 available to the transferee evidence necessary to enable the transferee
27 to determine the liability of the original taxpayer and of any preceding
28 transferees, but without undue hardship to the original taxpayer or
29 preceding transferee. See subdivision (e) of section 11-1931 of this
30 subchapter for rule as to burden of proof.
31 § 11-1936 Liability of bulk transferees. Whenever there is made a
32 sale, transfer or assignment in bulk of any part or the whole of a stock
33 of merchandise or of fixtures, or merchandise and of fixtures pertaining
34 to the conducting of the business of the seller, transferor or assignor,
35 otherwise than in the ordinary course of trade and in the regular prose-
36 cution of said business, the purchaser, transferee or assignee shall at
37 least ten days before taking possession of such merchandise, fixtures,
38 or merchandise and fixtures, or paying therefor, notify the commissioner
39 by registered mail of the proposed sale and of the price, terms and
40 conditions thereof, whether or not the seller, transferor or assignor,
41 has represented to, or informed the purchaser, transferee or assignee,
42 that it owes any tax pursuant to this chapter, whether or not the
43 purchaser, transferee or assignee has knowledge that such taxes are
44 owing, and whether or not any such taxes are in fact owing.
45 Whenever the purchaser, transferee or assignee shall fail to give the
46 notice to the commissioner required by this section, or whenever the
47 commissioner shall inform the purchaser, transferee or assignee that a
48 possible claim for such tax or taxes exists, any sums of money, property
49 or choses in action, or other consideration, which the purchaser, trans-
50 feree or assignee is required to transfer over to the seller, transferor
51 or assignor shall be subject to a first priority right and lien for any
52 such taxes theretofore or thereafter determined to be due from the sell-
53 er, transferor or assignor to the city, and the purchaser, transferee or
54 assignee is forbidden to transfer to the seller, transferor or assignor
55 any such sums of money, property or choses in action to the extent of
56 the amount of the city's claim. For failure to comply with the
S. 8578 1103
1 provisions of this subdivision the purchaser, transferee or assignee, in
2 addition to being subject to the liabilities and remedies imposed under
3 the provisions of article six of the uniform commercial code, shall be
4 personally liable for the payment to the city of any such taxes, there-
5 tofore or thereafter determined to be due to the city from the seller,
6 transferor or assignor and such liability may be assessed and enforced
7 in the same manner as the liability for tax is imposed under this chap-
8 ter.
9 § 11-1937 Jeopardy determination or assessment. (a) Authority for
10 making. If the commissioner believes that the assessment or collection
11 of a deficiency will be jeopardized by delay, he or she shall, notwith-
12 standing the provisions of sections 11-1923 and 11-1939 of this subchap-
13 ter, immediately assess or proceed to collect such deficiency, together
14 with all interest, penalties and additions to tax provided for by law,
15 and notice and demand shall be made by the commissioner for the payment
16 thereof.
17 (b) Notice of deficiency. If the jeopardy assessment is made before
18 any notice in respect of the tax to which the jeopardy assessment
19 relates has been mailed under section 11-1923 of this subchapter, then
20 the commissioner shall mail a notice under such section within sixty
21 days after making of the assessment.
22 (c) Amount assessable before decision of commissioner. The jeopardy
23 assessment may be made in respect of a deficiency greater or less than
24 that of which notice is mailed to the taxpayer and whether or not the
25 taxpayer has therefor filed a petition with the commissioner. The
26 commissioner may, at any time before rendering his or her decision,
27 abate such assessment or any unpaid portion thereof, to the extent that
28 he or she believes the assessment to be excessive in amount. The
29 commissioner may in his or her decision redetermine the entire amount of
30 the deficiency and of all amounts assessed at the same time in
31 connection therewith.
32 (d) Amount assessable after decision of commissioner. If the jeopardy
33 assessment of determination of jeopardy is made after the decision of
34 the commissioner is rendered, such assessment or determination may be
35 made only in respect of the deficiency determined by the commissioner in
36 his or her decision.
37 (e) Expiration of right to assess. A jeopardy determination may not be
38 made after the decision of the commissioner has become final or after
39 the taxpayer has made an application for review of the decision of the
40 commissioner.
41 (f) Collection of unpaid amounts. When a petition has been filed with
42 the commissioner and when the amount which should have been assessed has
43 been determined by a decision of the commissioner which has become
44 final, then any unpaid portion, the collection of which has been stayed
45 by bond, shall be collected as part of the tax upon notice and demand
46 from the commissioner, and any remaining portion of the assessment shall
47 be abated. If the amount already collected exceeds the amount deter-
48 mined as the amount which should have been assessed, such excess shall
49 be credited or refunded to the taxpayer as provided in section 11-1928
50 of this subchapter without the filing of claim therefor. If the amount
51 determined as the amount which should have been assessed is greater than
52 the amount actually assessed, then the difference shall be assessed and
53 shall be collected as part of the tax upon notice and demand from the
54 commissioner.
55 (g) Abatement if jeopardy does not exist. The commissioner may abate
56 the jeopardy determination if he or she finds that jeopardy does not
S. 8578 1104
1 exist. Such abatement may not be made after a decision of the commis-
2 sioner in respect of the deficiency has been rendered or, if no petition
3 is filed with the commissioner, after the expiration of the period for
4 filing such petition. The period of limitation on the making of a levy
5 or a proceeding for collection, in respect of any deficiency, shall be
6 determined as if the jeopardy assessment so abated has not been made,
7 except that the running of such period shall in any event be suspended
8 for the period from the date of such jeopardy determination until the
9 expiration of the tenth day after the day on which such jeopardy deter-
10 mination is abated.
11 (h) Bond to stay collection. The collection of the whole or any amount
12 of any assessment determined to be in jeopardy may be stayed by filing
13 with the commissioner, within such time as may be fixed by regulation, a
14 bond in an amount equal to the amount as to which the stay is desired
15 conditioned upon the payment of the amount, together with interest ther-
16 eon, the collection of which is stayed at the time at which, but for the
17 making of the jeopardy assessment, such amount would be due. Upon the
18 filing of the bond, the collection of so much of the amount assessed as
19 is covered by the bond shall be stayed. The taxpayer shall have the
20 right to waive such stay at any time in respect of the whole or any part
21 of the amount covered by the bond and, if as a result of such waiver any
22 part of the amount covered by the bond is paid, then the bond shall, at
23 the request of the taxpayer, be proportionately reduced. If any portion
24 of the jeopardy assessment is abated, or if a notice of deficiency under
25 section 11-1923 of this subchapter is mailed to the taxpayer in a lesser
26 amount, the bond shall, at the request of the taxpayer, be proportion-
27 ately reduced.
28 (i) Petition to commissioner. If the bond is given before the taxpayer
29 has filed his or her petition under section 11-1931 of this subchapter,
30 the bond shall contain a further condition that if a petition is not
31 filed within the period provided in such section, then the amount, the
32 collection of which is stayed by the bond, will be paid on notice and
33 demand at any time after the expiration of such period, together with
34 interest thereon from the date of the jeopardy notice and demand to the
35 date of notice and demand under this subdivision. The bond shall be
36 conditioned upon the payment of so much of such assessment, collection
37 of which is stayed by the bond, as is not abated by a decision of the
38 commissioner which has become final. If the commissioner determines
39 that the amount assessed is greater than the amount which should have
40 been assessed, then the bond shall, at the request of the taxpayer, be
41 proportionately reduced when the decision of the commissioner is
42 rendered.
43 (j) Stay of sale of seized property pending commissioner's decision.
44 Where a jeopardy assessment or a determination of jeopardy is made, the
45 property seized for the collection of the tax shall not be sold:
46 (1) if subdivision (b) of this section is applicable, prior to the
47 issuance of the notice of deficiency and the expiration of the time
48 provided in section 11-1931 of this subchapter for filing a petition
49 with the commissioner, and
50 (2) if a petition is filed with the commissioner, whether before or
51 after the making of such jeopardy assessment or determination, prior to
52 the expiration of the period during which the collection of the defi-
53 ciency assessed would be prohibited if subdivision (a) of this section
54 were not applicable.
55 Such property may be sold if the taxpayer consents to the sale, or if
56 the commissioner determines that the expenses of conservation and main-
S. 8578 1105
1 tenance will greatly reduce the net proceeds, or if the property is
2 perishable.
3 (k) Interest. For the purpose of subdivision (a) of section 11-1926 of
4 this subchapter, the last date prescribed for payment shall be deter-
5 mined without regard to any notice and demand for payment issued under
6 this section prior to the last date otherwise prescribed for such
7 payment.
8 (l) Early termination of taxable year. If the commissioner finds that
9 a taxpayer designs quickly to depart from this state or to remove his or
10 her property therefrom, or to conceal himself or herself or his or her
11 property therein, or to do any other act tending to prejudice or to
12 render wholly or partly ineffectual proceedings to collect the tax for
13 the current or the preceding taxable year unless such proceedings be
14 brought without delay, the commissioner shall declare the taxable period
15 for such taxpayer immediately terminated, and shall cause notice of such
16 finding and declaration to be given the taxpayer, together with a demand
17 for immediate payment of the tax for the taxable period so declared
18 terminated and of the tax for the preceding taxable year or so much of
19 such tax as is unpaid, whether or not the time otherwise allowed by law
20 for filing return and paying the tax has expired; and such taxes shall
21 thereupon become immediately due and payable. In any proceeding brought
22 to enforce payment of taxes made due and payable by virtue of the
23 provisions of this subdivision, the finding of the commissioner made as
24 herein provided, whether made after notice to the taxpayer or not, shall
25 be for all purposes presumptive evidence of jeopardy.
26 (m) Reopening of taxable period. Notwithstanding the termination of
27 the taxable period of the taxpayer by the commissioner as provided in
28 subdivision (1) of this section, the commissioner may reopen such taxa-
29 ble period each time the taxpayer is found by the commissioner to have
30 received wages or net earnings from self-employment, within the current
31 taxable year, since the termination of such period. A taxable period so
32 terminated by the commissioner may be reopened by the taxpayer if he or
33 she files with the commissioner a true and accurate return of taxable
34 wages and net earnings from self-employment under this chapter for such
35 taxable period, together with such other information as the commissioner
36 may by regulation prescribe.
37 (n) Furnishing of bond where taxable year is closed by the commis-
38 sioner. Payment of taxes shall not be enforced by any proceedings under
39 the provisions of subdivision (1) of this section prior to the expira-
40 tion of the time otherwise allowed for paying such taxes if the taxpayer
41 furnishes, under regulations prescribed by the commissioner, a bond to
42 insure the timely making of returns with respect to, and payment of,
43 such taxes or any taxes for prior years.
44 § 11-1938 Criminal penalties. (a) Attempt to evade tax. Any individ-
45 ual, corporation or partnership or any officer or employee of any corpo-
46 ration, or member or employee of any partnership, who, with intent to
47 evade any tax or any requirement of this chapter or any lawful require-
48 ment of the commissioner thereunder, shall fail to pay the tax, or to
49 make, render, sign or certify any return or declaration of estimated
50 tax, or to supply any information within the time required by or under
51 the provisions of this chapter, or who, with like intent, shall make,
52 render, sign or certify any false or fraudulent return, declaration or
53 statement, or shall supply any false or fraudulent information, or who
54 shall fail to comply with the provisions of subdivision (b) of section
55 11-1912 of this chapter after the service of a notice by the commission-
56 er thereunder, shall be guilty of a misdemeanor and shall, upon
S. 8578 1106
1 conviction, be fined not to exceed five thousand dollars or be impri-
2 soned not to exceed one year, or both, at the discretion of the court.
3 (b) Limitations. Notwithstanding the provisions of section 30.10 of
4 the criminal procedure law or of any other law of this state, a prose-
5 cution for any offense under this section may be commenced at any time
6 not later than three years after the commission of such offense provided
7 that, if such offense is the failure to do an act required by or under
8 any provision of this chapter to be done before a certain date, a prose-
9 cution for such offense may be commenced not later than three years
10 after such date.
11 (c) Willful failure to withhold. Any individual, corporation or part-
12 nership or any officer or employee of any corporation, including a
13 dissolved corporation, or member or employee of any partnership, who
14 willfully fails to collect or pay over any withholding tax as required,
15 shall, in addition to other penalties provided by law, be guilty of a
16 misdemeanor, and, upon conviction thereof, shall be fined not to exceed
17 five thousand dollars or imprisoned not to exceed one year, or both.
18 (d) Two or more charges. In the prosecution of offenses under this
19 section, if there are two or more charges against any person or corpo-
20 ration, involving a violation or violations of any provision or
21 provisions of this chapter, whether for the same or different taxable
22 years, instead of returning several indictments or filing several infor-
23 mations, all of such charges may be joined in one indictment or informa-
24 tion, in separate counts, and if two or more indictments are found, or
25 two or more informations are filed, the court may order them to be
26 consolidated. If a person or corporation shall be convicted of two or
27 more offenses constituting different crimes set forth in different
28 counts of one indictment or information, or in separate indictments or
29 informations consolidated as hereinbefore provided, the court may impose
30 a separate sentence for each offense, and if imprisonment is imposed,
31 the court may order any of such sentences to be served concurrently or
32 consecutively.
33 (e) Miscellaneous rules. Any prosecution under this section may be
34 conducted in any county where the person or corporation to whose tax
35 liability the proceeding relates resides, or has a place of business, or
36 in any county in which any such crime is committed. The corporation
37 counsel of the city shall have concurrent jurisdiction with any district
38 attorney in the prosecution of any offense under this section. If the
39 provisions of this section conflict with those contained in any other
40 law, this section shall control. The certificate of the commissioner to
41 the effect that a tax has not been paid, that a return or declaration of
42 estimated tax has not been filed, or that information has not been
43 supplied, as required by or under the provisions of this chapter, shall
44 be prima facie evidence that such tax has not been paid, that such
45 return or declaration has not been filed, or that such information has
46 not been supplied. All fines levied under this section shall be paid to
47 the commissioner and deposited in the same manner as revenues collected
48 or received under this chapter.
49 § 11-1939 Armed forces relief provisions. (a) Time to be disregarded.
50 In the case of an individual serving in the armed forces of the United
51 States or serving in support of such armed forces, in an area designated
52 by the president of the United States by executive order as a "combat
53 zone" at any time during the period designated by the president by exec-
54 utive order as the period of combatant activities in such zone, or
55 hospitalized outside the state as a result of injury received while
56 serving in such an area during such time, the period of service in such
S. 8578 1107
1 area, plus the period of continuous hospitalization outside the state
2 attributable to such injury, and the next one hundred eighty days there-
3 after, shall be disregarded in determining, under this chapter in
4 respect of the tax liability, including any interest, penalty, or addi-
5 tion to the tax, of such individual:
6 (1) Whether any of the following acts was performed within the time
7 prescribed therefor:
8 (A) filing any return of tax, except withholding tax;
9 (B) payment of any tax, except withholding tax, or any installment
10 thereof or of any other liability to the commissioner, in respect there-
11 of;
12 (C) filing a petition with the commissioner for credit or refund or
13 for redetermination of a deficiency, or application for review of a
14 decision rendered by the commissioner;
15 (D) allowance of a credit or refund of tax;
16 (E) filing a claim for credit or refund of tax;
17 (F) giving or making any notice or demand for the payment of any tax,
18 or with respect to any liability to the commissioner in respect of tax;
19 (G) collection, by the commissioner, by levy or otherwise of the
20 amount of any liability in respect of tax;
21 (H) bringing suit by the city, or any officer, on its behalf, in
22 respect of any liability in respect of tax; and
23 (I) any other act required or permitted under this chapter or speci-
24 fied in the regulations prescribed under this section by the commission-
25 er.
26 (2) The amount of any credit or refund, including interest.
27 (b) Action taken before ascertainment of right to benefits. The
28 collection of the tax imposed by this chapter or of any liability to the
29 commissioner in respect of such tax, or any action or proceeding by or
30 on behalf of the commissioner in connection therewith, may be made,
31 taken, begun, or prosecuted in accordance with law, without regard to
32 the provisions of subdivision (a) of this section, unless prior to such
33 collection, action, or proceeding it is ascertained that the person
34 concerned is entitled to the benefit of subdivision (a) of this section.
35 (c) Members of armed forces dying in action. In the case of any person
36 who dies while in active service as a member of the armed forces of the
37 United States, if such death occurred while serving in a combat zone
38 during a period of combatant activities in such zone, as described in
39 subdivision (a) of this section, or as a result of wounds, disease or
40 injury incurred while so serving, the tax imposed by this chapter shall
41 not apply with respect to the taxable year in which falls the date of
42 his or her death, or with respect to any prior taxable year ending on or
43 after the first day so served in a combat zone, and no returns shall be
44 required in behalf of such person or his or her estate for such year;
45 and the tax for any such taxable year which is unpaid at the date of
46 death, including interest, additions to tax and penalties, if any, shall
47 not be assessed and, if assessed, the assessment shall be abated and, if
48 collected, shall be refunded to the legal representative of such estate
49 if one has been appointed and has qualified, or, if no legal represen-
50 tative has been appointed or has qualified, to the surviving spouse.
51 § 11-1940 General powers of commissioner. (a) General. The commission-
52 er shall administer and enforce the tax imposed by this chapter and the
53 commissioner is authorized to make such rules and regulations, and to
54 require such facts and information to be reported, as the commissioner
55 may deem necessary to enforce the provisions of this chapter and the
56 commissioner may delegate his or her powers and functions under all
S. 8578 1108
1 subchapters of this chapter to one of his or her deputies or to any
2 employee or employees of his or her department.
3 (b) Examination of books and witnesses. The commissioner for the
4 purpose of ascertaining the correctness of any return, or for the
5 purpose of making an estimate of taxable wages and net earnings from
6 self-employment of any person, shall have power to examine or to cause
7 to have examined, by any agent or representative designated by him or
8 her for that purpose, any books, papers, records or memoranda bearing
9 upon the matters required to be included in the return, and may require
10 the attendance of the person rendering the return or any officer or
11 employee of such person, or the attendance of any other person having
12 knowledge in the premises, may take testimony and require proof material
13 for the commissioner's information, with power to administer oaths to
14 such person or persons and may issue commissions for the examination of
15 witnesses who are out of the state or unable to attend before the
16 commissioner or excused from attendance, and for the production of
17 books, papers, records or memoranda.
18 (c) Abatement authority. The commissioner, of his or her own motion,
19 may abate any small unpaid balance of an assessment of tax, or any
20 liability in respect thereof, if the commissioner determines under
21 uniform rules prescribed by him or her that the administration and
22 collection costs involved would not warrant collection of the amount
23 due. The commissioner may also abate, of his or her own motion, the
24 unpaid portion of the assessment of any tax or any liability in respect
25 thereof, which is excessive in amount, or is assessed after the expira-
26 tion of the period of limitation properly applicable thereto, or is
27 erroneously or illegally assessed. No claim for abatement under this
28 subdivision shall be filed by a taxpayer.
29 (d) Special refund authority. Where no questions of fact or law are
30 involved and it appears from the records of the commissioner that any
31 moneys have been erroneously or illegally collected from any taxpayer or
32 other person, or paid by such taxpayer or other person under a mistake
33 of facts, pursuant to the provisions of this chapter, the commissioner
34 at any time, without regard to any period of limitations, shall have the
35 power, upon making a record of his or her reasons therefor in writing,
36 to cause such moneys so paid and being erroneously and illegally held to
37 be refunded.
38 (e) Cooperation with the United States and other states. Notwith-
39 standing the provisions of section 11-1942 of this subchapter, the
40 commissioner may permit the secretary of the treasury of the United
41 States or such secretary's delegates, or the proper tax officer of any
42 other state imposing an income tax upon the income of individuals, or
43 the authorized representative of either such officer, to inspect any
44 return filed under this chapter, or may furnish to such officer or his
45 or her authorized representative an abstract of any such return or
46 supply him or her with information concerning an item contained in any
47 such return, or disclosed by any investigation of tax liability under
48 this chapter, but such permission shall be granted or such information
49 furnished to such officer or his or her representative only if the laws
50 of the United States or of such state, as the case may be, grant
51 substantially similar privileges to the commissioner and such informa-
52 tion is to be used for tax purposes only; and provided further the
53 commissioner may furnish to the commissioner of internal revenue or his
54 or her authorized representative such returns filed under this chapter
55 and other tax information as he or she may consider proper for the use
56 in court actions or proceedings under the internal revenue code, whether
S. 8578 1109
1 civil or criminal, where a written request therefor has been made to the
2 commissioner by the secretary of the treasury of the United States or by
3 his or her delegates, provided the laws of the United States grant
4 substantially similar powers to the secretary of the treasury of the
5 United States or such secretary's delegates. Where the commissioner has
6 so authorized use of returns and other information in such actions or
7 proceedings, officers and employees of the department of taxation and
8 finance may testify in such actions or proceedings in respect to such
9 returns or other information.
10 § 11-1941 Joint enforcement. (1) If there is assessed a tax under this
11 chapter and there is also assessed a tax or taxes against the same
12 taxpayer pursuant to article twenty-two of the tax law and if the
13 commissioner of the tax imposed by this chapter takes action under the
14 tax law with respect to the enforcement and collection of the tax or
15 taxes assessed under such tax law, the commissioner shall, wherever
16 possible, accompany such action with a similar action under similar
17 enforcement and collection provisions of this chapter.
18 (2) Any monies collected as a result of such joint action shall be
19 deemed to have been collected in proportion in the amounts due, includ-
20 ing tax, penalties, interest and additions to tax under article twenty-
21 two of the tax law and under this chapter.
22 (3) Whenever the commissioner takes any action with respect to a defi-
23 ciency of personal income tax, under article twenty-two of the tax law
24 other than the action set forth in subdivision one of this section the
25 commissioner may, in his or her discretion, accompany such action with a
26 similar action under this chapter.
27 § 11-1942 Secrecy requirement and penalties for violation. 1. Except
28 in accordance with proper judicial order or as otherwise provided by
29 law, it shall be unlawful for the commissioner or any other officer or
30 employee of the department of finance of the city, any person engaged or
31 retained by such commissioner or department on an independent contract
32 basis, any depository to which any return may be delivered as provided
33 in subdivision two of this section, any officer or employee of such
34 depository, or any person who, pursuant to this section, is permitted to
35 inspect any report or return or to whom a copy, an abstract or a portion
36 of any report or return is furnished, or to whom any information
37 contained in any report or return is furnished, to divulge or make known
38 in any manner the amount of wages or earnings or any particulars set
39 forth or disclosed in any report or return required under this chapter.
40 The commissioner or any other officer and employee charged with the
41 custody of such reports and returns shall not be required to produce any
42 of them or evidence of anything contained in them in any action or
43 proceeding in any court, except on behalf of the city in an action or
44 proceeding under the provisions of this chapter or in any other action
45 or proceeding involving the collection of a tax due under this chapter
46 to which the city is a party or a claimant, or on behalf of any party to
47 any action or proceeding under the provisions of this chapter when the
48 reports, returns or facts shown thereby are directly involved in such
49 action or proceeding, in any of which events the court may require the
50 production of, and may admit in evidence, so much of said reports,
51 returns or of the facts shown thereby, as are pertinent to the action or
52 proceeding and no more; except as provided in subdivision (e) of section
53 11-1940 of this subchapter. The commissioner may, nevertheless, publish
54 a copy or a summary of any determination or decision rendered after the
55 hearing required under section 11-1931 of this subchapter of this chap-
56 ter. Nothing in this section shall be construed to prohibit the deliv-
S. 8578 1110
1 ery to a taxpayer or the taxpayer's duly authorized representative of a
2 certified copy of any return or report filed in connection with his or
3 her tax or to prohibit the publication of statistics so classified as to
4 prevent the identification of particular reports or returns and the
5 items thereof, or the inspection by the legal representatives of the
6 city of the report or return of any taxpayer who shall bring action to
7 set aside or review the tax based thereon, or against whom an action or
8 proceeding under this chapter has been recommended by the commissioner.
9 Reports and returns shall be preserved for three years and thereafter
10 until the commissioner orders them to be destroyed. Any violation of
11 the provisions of this section shall be punished by a fine not exceeding
12 one thousand dollars or by imprisonment not exceeding one year, or both,
13 at the discretion of the court, and if the offender be the commissioner
14 or any other officer or employee of the city, he or she shall be
15 dismissed from office and be incapable of holding any public office in
16 the city or the state for a period of five years thereafter.
17 2. Notwithstanding the provisions of subdivision one of this section,
18 the commissioner of finance, in his or her discretion, may require or
19 permit any or all individuals, estates or trusts, liable for any tax
20 imposed by this chapter, to make payments on account of estimated tax
21 and payment of any tax, penalty or interest imposed by this chapter to
22 banks, banking houses or trust companies designated by the commissioner
23 of finance and to file declarations of estimated tax and reports and
24 returns with such banks, banking houses or trust companies as agents of
25 the commissioner of finance, in lieu of making any such payment directly
26 to the commissioner of finance. However, the commissioner of finance
27 shall designate only such banks, banking houses or trust companies as
28 are depositories or financial agents of Staten Island.
29 § 11-1943 Provisions not applicable. The provisions contained in this
30 subchapter shall not be applicable with respect to taxes imposed for
31 taxable periods commencing on or after January first, nineteen hundred
32 seventy-six but, with respect to the tax imposed for such periods the
33 provisions contained in part VI of article twenty-two of the tax law and
34 sections six hundred fifty-three, six hundred fifty-eight, six hundred
35 sixty-two and thirteen hundred eleven of the tax law including the
36 provisions of judicial review by a proceeding under article seventy-
37 eight of the civil practice law and rules shall be applicable with the
38 same force and effect as if those provisions had been incorporated in
39 full in this section except where inconsistent with the provisions of
40 this chapter.
41 § 11-1944 Deposit and disposition of revenues by commissioner. All
42 taxes, penalties and interest imposed under this chapter which are paid
43 to or collected by the commissioner of finance shall be deposited by the
44 commissioner of finance in the general fund of the city.
45 § 11-1945 Effect of invalidity in part; inconsistencies with other
46 laws. (a) If any clause, sentence, paragraph, subdivision, section,
47 provision or other portion of this chapter or the application thereof to
48 any person or circumstances shall be held to be invalid, such holding
49 shall not affect, impair or invalidate the remainder of this chapter or
50 the application of such portion held invalid, to any other person or
51 circumstances, but shall be confined in its operation to the clause,
52 sentence, paragraph, subdivision, section, provision or other portion
53 thereof directly involved in such holding or to the person and circum-
54 stances therein involved.
55 (b) If any provision of this chapter is inconsistent with, in conflict
56 with, or contrary to any other provision of law, such provision of this
S. 8578 1111
1 chapter shall prevail over such other provision and such other provision
2 shall be deemed to have been amended, superseded or repealed to the
3 extent of such inconsistency, conflict or contrariety.
4 CHAPTER 20
5 SALES, EXCISE AND RELATED TAXES
6 SUBCHAPTER 1
7 GENERAL SALES AND COMPENSATING USE TAXES
8 § 11-2001 Imposition of general sales and compensating use taxes. (a)
9 There are hereby imposed and there shall be paid all of the sales and
10 compensating use taxes described in article twenty-eight of the tax law
11 as authorized by subdivision (a) of section twelve hundred ten of the
12 tax law, at the rate of four and one-half percent, provided that the
13 taxes described in paragraph six of subdivision (c) of section eleven
14 hundred five of the tax law shall be imposed and paid at the rate of six
15 percent.
16 (b) Notwithstanding any contrary provision of this section or other
17 law, this section: (1) does not impose tax on (i) receipts from the
18 sale of the services of laundering, dry-cleaning, tailoring, weaving,
19 pressing, shoe repairing and shoe shining described in subparagraph (ii)
20 of paragraph three of subdivision (c) of section eleven hundred five of
21 the tax law; (ii) receipts from the sale of services described in para-
22 graph six of subdivision (c) of section eleven hundred five of the tax
23 law at facilities owned and operated by the city or an agency or instru-
24 mentality of the city or a public corporation the majority of whose
25 members are appointed by the mayor or the city council or both of them;
26 (2) for purposes of the tax described in subdivision (e) of section
27 eleven hundred five of the tax law, defines "permanent resident" to mean
28 any occupant of any room or rooms in a hotel for at least one hundred
29 eighty consecutive days with regard to the period of such occupancy; (3)
30 does not omit from the tax described in paragraph one of subdivision (f)
31 of section eleven hundred five of the tax law charges to a patron for
32 admission to, or use of, facilities for sporting activities in which
33 such patron is to be a participant, such as bowling alleys and swimming
34 pools; (4) provides the clothing and footwear exemption in paragraph
35 thirty of subdivision (a) of section eleven hundred fifteen of the tax
36 law; (5) omits the exemption provided in paragraph forty-one of subdivi-
37 sion (a) of section eleven hundred fifteen of the tax law; (6) omits the
38 exemption provided in subdivision (c) of section eleven hundred fifteen
39 of the tax law insofar as it applies to fuel, gas, electricity, refrig-
40 eration and steam, and gas, electric, refrigeration and steam service of
41 whatever nature for use or consumption directly and exclusively in the
42 production of gas, electricity, refrigeration or steam; and (7) omits
43 the provision for refund or credit contained in clause six of subdivi-
44 sion (a) of section eleven hundred nineteen of the tax law.
45 (c) The taxes imposed by this section shall be in addition to any and
46 all other taxes authorized or imposed under any other provision of law.
47 (d) The taxes imposed by this section shall be administered and
48 collected by the state commissioner of taxation and finance as provided
49 in articles twenty-eight and twenty-nine of the tax law.
50 (e) The provisions of articles twenty-eight and twenty-nine of the tax
51 law relating or applicable to the taxes imposed by this section, includ-
52 ing the applicable definitions, transitional provisions, limitations,
53 special provisions, exemptions, exclusions, refunds, credits and admin-
54 istrative provisions, so far as those provisions can be made applicable
S. 8578 1112
1 to the taxes imposed by this section, shall apply to the taxes imposed
2 by this section with the same force and effect as if those provisions
3 had been incorporated in full into this section and had expressly
4 referred to the taxes imposed by this section, except to the extent that
5 any provision of article twenty-eight or twenty-nine of the tax law is
6 either inconsistent with or not relevant to the taxes imposed by this
7 section.
8 (f) Net collections from the taxes imposed by this section paid to
9 this city by the state comptroller shall be credited to and deposited in
10 the general fund of this city, but no part of such revenues may be
11 expended unless appropriated in the annual budget of this city.
12 (g) If any provision of this section or the application thereof shall
13 for any reason be adjudged by any court of competent jurisdiction to be
14 invalid, such judgment shall not affect, impair or invalidate the
15 remainder of this section but shall be confined in its operation to the
16 provision thereof directly involved in the controversy in which such
17 judgment shall have been rendered and the application of such provision
18 to other persons or circumstances shall not be affected thereby.
19 § 11-2002 Imposition of special sales taxes. (a) There are hereby
20 imposed and there shall be paid sales taxes at the rate of four and
21 one-half percent on receipts from every sale of the services of beauty,
22 barbering, hair restoring, manicuring, pedicuring, electrolysis, massage
23 services and similar services, and every sale of services by weight
24 control salons, health salons, gymnasiums, Turkish and sauna bath and
25 similar establishments and every charge for the use of such facilities,
26 whether or not any tangible personal property is transferred in conjunc-
27 tion therewith; but excluding services rendered by a physician, osteo-
28 path, dentist, nurse, physiotherapist, chiropractor, podiatrist, optome-
29 trist, ophthalmic dispenser or a person performing similar services
30 licensed under title eight of the education law, as amended, and exclud-
31 ing such services when performed on pets and other animals, as author-
32 ized by subdivision (a) of section twelve hundred twelve-a of the tax
33 law. Provided, however, that the tax hereby imposed shall not be imposed
34 after November thirtieth, two thousand twenty-six.
35 (b) The taxes imposed by this section shall be in addition to any and
36 all other taxes authorized or imposed under any other provision of law.
37 (c) The taxes imposed by this section shall be administered and
38 collected by the state commissioner of taxation and finance as provided
39 in articles twenty-eight and twenty-nine of the tax law.
40 (d) The provisions of articles twenty-eight and twenty-nine of the tax
41 law relating or applicable to the taxes imposed by this section, includ-
42 ing the applicable definitions, transitional provisions, limitations,
43 special provisions, exemptions, exclusions, refunds, credits and admin-
44 istrative provisions, so far as those provisions can be made applicable
45 to the taxes imposed by this section, shall apply to the taxes imposed
46 by this section with the same force and effect as if those provisions
47 had been incorporated in full into this section and had expressly
48 referred to the taxes imposed by this section, except to the extent that
49 any provision of article twenty-eight or twenty-nine of the tax law is
50 either inconsistent with or not relevant to the taxes imposed by this
51 section.
52 (e) Net collections from the taxes imposed by this section paid to
53 this city by the state comptroller shall be credited to and deposited in
54 the general fund of this city, but no part of such revenues may be
55 expended unless appropriated in the annual budget of this city.
S. 8578 1113
1 (f) If any provision of this section or the application thereof shall
2 for any reason be adjudged by any court of competent jurisdiction to be
3 invalid, such judgment shall not affect, impair or invalidate the
4 remainder of this section but shall be confined in its operation to the
5 provision thereof directly involved in the controversy in which such
6 judgment shall have been rendered and the application of such provision
7 to other persons or circumstances shall not be affected thereby.
8 § 11-2032 Construction and enforcement. This subchapter shall be
9 construed and enforced in conformity with articles twenty-eight and
10 twenty-nine of the tax law of the state of New York pursuant to which
11 the same is enacted.
12 SUBCHAPTER 3
13 SALES TAX ON CREDIT SERVICES,
14 PROTECTIVE AND DETECTIVE SERVICES,
15 INTERIOR DECORATING AND DESIGNING
16 SERVICES, AND INTERIOR CLEANING AND MAINTENANCE SERVICES
17 § 11-2039 Definitions. (a) "Person" includes an individual, partner-
18 ship, society, association, joint-stock company, corporation, estate,
19 receiver, trustee, assignee, referee, and any other person acting in a
20 fiduciary or representative capacity, whether appointed by a court or
21 otherwise, and any combination of the foregoing.
22 (b) When used in this subchapter for the purposes of the taxes imposed
23 by this subchapter, the following terms shall mean:
24 (1) "Purchaser." A person who purchases property or to whom are
25 rendered services, the receipts from which are taxable under this
26 subchapter.
27 (2) "Receipt." The amount of the sale price of any property and the
28 charge for any service taxable under this subchapter, valued in money,
29 whether received in money or otherwise, including any amount for which
30 credit is allowed by the vendor to the purchaser, without any deduction
31 for expenses or early payment discounts, but excluding any credit for
32 tangible personal property accepted in part payment and intended for
33 resale.
34 (3) "Sale." Any transfer of title or possession or both, exchange or
35 barter, rental, lease or license to use or consume, conditional or
36 otherwise, in any manner or by any means whatsoever for a consideration,
37 or any agreement therefor, including the rendering of any service, taxa-
38 ble under this subchapter, for a consideration or any agreement there-
39 for.
40 (4) "Vendor." A person making sales of tangible personal property or
41 services, the receipts from which are taxed by this subchapter.
42 (5) "Tax commission." Tax commission of the state of New York.
43 (6) "Tax law." Tax law of the state of New York.
44 § 11-2040 Imposition of tax. (a) There is hereby imposed within the
45 city and there shall be paid a tax at the rate of four and one-half
46 percent upon the receipts from every sale, except for resale, of credit
47 rating and credit reporting services, including, but not limited to,
48 those services provided by mercantile and consumer credit rating or
49 reporting bureaus or agencies, whether rendered in written or oral form
50 or in any other manner, except to the extent otherwise taxable under
51 article twenty-eight of the tax law; provided, however, that the tax
52 hereby imposed shall not be imposed after November thirtieth, two thou-
53 sand twenty-six, on receipts from sales of the services specified in
54 this subdivision.
S. 8578 1114
1 (b) Wages, salaries and other compensation paid by an employer to an
2 employee for performing as an employee the services described in subdi-
3 vision (a) of this section are not receipts subject to the taxes imposed
4 by such subdivision.
5 (c) Any taxes imposed by this subchapter are in addition to any other
6 tax which the city may impose or may be imposing pursuant to any law.
7 § 11-2041 Transitional provisions. The taxes imposed under subdivision
8 (a) of section 11-2040 of this subchapter shall be paid with respect to
9 receipts from all sales of services on or after September first, nine-
10 teen hundred seventy-five although rendered or agreed to be rendered
11 under a prior contract. Where a service is sold on a monthly, quarterly,
12 yearly or other term basis, the charge for such service shall be subject
13 to tax under this subchapter to the extent that such charge is applica-
14 ble to any period on or after September first, nineteen hundred seven-
15 ty-five, and such charge shall be apportioned on the basis of the ratio
16 of the number of days falling within such period to the total number of
17 days in the full term or period.
18 § 11-2042 Exempt organizations. Except as otherwise provided in this
19 section, any sale by or to any of the following shall not be subject to
20 the taxes imposed by this subchapter:
21 (1) The state of New York, or any of its agencies, instrumentalities,
22 public corporations, including a public corporation created pursuant to
23 agreement or compact with another state or Canada, or political subdivi-
24 sions where it is the purchaser, user or consumer, or where it is a
25 vendor of services or property of a kind not ordinarily sold by private
26 persons;
27 (2) The United States of America, and any of its agencies and instru-
28 mentalities, insofar as it is immune from taxation where it is the
29 purchaser, user or consumer, or where it sells services or property of a
30 kind not ordinarily sold by private persons;
31 (3) The United Nations or any international organization of which the
32 United States of America is a member where it is the purchaser, user or
33 consumer, or where it sells services or property of a kind not ordinar-
34 ily sold by private persons;
35 (4) Any corporation, association, trust, or community chest, fund or
36 foundation, organized and operated exclusively for religious, charita-
37 ble, scientific, testing for public safety, literary or educational
38 purposes, or for the prevention of cruelty to children or animals, no
39 part of the net earnings of which inures to the benefit of any private
40 shareholder or individual, no substantial part of the activities of
41 which is carrying on propaganda, or otherwise attempting to influence
42 legislation, and which does not participate in, or intervene in, includ-
43 ing the publishing or distributing of statements any political campaign
44 on behalf of any candidate for public office;
45 (5) A post or organization of war veterans, or an auxiliary unit or
46 society of, or a trust or foundation for, any such post or organization:
47 (A) organized in this state,
48 (B) at least seventy-five percent of the members of which are war
49 veterans and substantially all of the other members of which are indi-
50 viduals who are veterans, but not war veterans, or are cadets, or are
51 spouses, widows or widowers of war veterans or such individuals, and
52 (C) no part of the net earnings of which inures to the benefit of any
53 private shareholder or individual.
54 § 11-2043 Refunds or credits based on proof of certain uses. A refund
55 or credit equal to the amount of the sales or compensating use tax
56 imposed by section eleven hundred seven of the tax law or by section
S. 8578 1115
1 11-2001 of this chapter, as the case may be, and paid on the sale or use
2 of tangible personal property which is later used by such purchaser in
3 performing a service subject to tax under this subchapter shall be
4 allowed such purchaser against the tax imposed by this subchapter and
5 collected by such person on the sale of such services if such property
6 has become a physical component part of the property upon which the
7 service is performed or has been transferred to the purchaser of the
8 service in conjunction with the performance of the service subject to
9 tax; provided, however, that any such refund or credit shall be without
10 interest.
11 § 11-2044 Administration and collection. The taxes imposed by section
12 11-2040 of this subchapter shall be administered and collected by the
13 tax commission in the same manner as the taxes imposed by article twen-
14 ty-eight of the tax law are administered and collected by such commis-
15 sion. All of the provisions of such article relating to or applicable
16 to the administration and collection of the taxes imposed by that arti-
17 cle shall apply to the taxes imposed by this subchapter, including
18 sections eleven hundred one, eleven hundred eleven, and sections eleven
19 hundred thirty-one through eleven hundred forty-seven inclusive, with
20 the same force and effect as if those provisions had been incorporated
21 in full into this subchapter and had expressly referred to the taxes
22 imposed by this subchapter, except as otherwise provided in section
23 twelve hundred fifty of the tax law. For purposes of this subchapter,
24 the term "tax" in part IV of such article twenty-eight of the tax law
25 shall include the taxes imposed by this subchapter.
26 § 11-2045 Deposit and disposition of revenue. (a) The tax commission
27 shall deposit daily to the credit of the comptroller of the state of New
28 York, all taxes, penalties and interest collected under this subchapter
29 in such responsible banks, banking houses or trust companies as may be
30 designated by the comptroller. Such deposits shall be kept in trust for
31 the city and separate and apart from all other monies in the possession
32 of the comptroller. The comptroller shall require adequate security
33 from all such depositories. Of the revenue collected under this subchap-
34 ter the comptroller shall retain in his or her hands such amount as the
35 commissioner of taxation and finance of the state of New York may deter-
36 mine to be necessary for refunds under this subchapter and for reason-
37 able costs of the tax commission in administering, collecting and
38 distributing the taxes under this subchapter, out of which the comp-
39 troller shall pay any refunds made under the provisions of this subchap-
40 ter. The comptroller, after reserving such refund fund and such costs,
41 shall on or before the twelfth day of each month, pay to the commission-
42 er of finance of this city all taxes, interest and penalties collected
43 under this subchapter and remaining to the comptroller's credit in such
44 banks, banking houses or trust companies at the close of business on the
45 last day of the preceding month, provided, however, that the comptroller
46 shall on or before the last day of June and December make a partial
47 payment consisting of the collections made during and including the
48 first twenty-five days of said months to the commissioner of finance of
49 this city. The amount so payable shall be certified to the comptroller
50 by the president of the tax commission or such president's delegate, who
51 shall not be held liable for any inaccuracy in such certificate. Where
52 the amount so paid over in any such distribution is more or less than
53 the amount then due to this city, the amount of the overpayment or
54 underpayment shall be certified to the comptroller by the president of
55 the tax commission or such president's delegate, who shall not be held
56 liable for any inaccuracy in such certificate. The amount of the over-
S. 8578 1116
1 payment shall be so certified to the comptroller as soon after the
2 discovery of the overpayment or underpayment as reasonably possible and
3 subsequent payments and distributions by the comptroller to this city
4 shall be adjusted by subtracting the amount of any such overpayment from
5 or by adding the amount of any such underpayment to such number of
6 subsequent payments and distributions as the comptroller and the presi-
7 dent of the state tax commission shall consider reasonable in view of
8 the amount of the overpayment or underpayment and all other facts and
9 circumstances.
10 (b) All payments to the commissioner of finance pursuant to subdivi-
11 sion (a) of this section shall be credited to and deposited in the
12 general fund of this city, but no part of such revenues may be expended
13 unless appropriated in the annual budget of this city.
14 § 11-2046 Construction and enforcement. This subchapter shall be
15 construed and enforced in conformity with articles twenty-eight and
16 twenty-nine of the tax law of the state of New York pursuant to which it
17 is enacted.
18 § 11-2047 Effective date. This subchapter shall take effect September
19 first, nineteen hundred seventy-five except that certificates of regis-
20 tration may be filed with the state tax commission and certificates of
21 authority to collect tax may be issued by the state tax commission prior
22 to such date.
23 SUBCHAPTER 4
24 ADDITIONAL PARKING TAX
25 § 11-2048 Definitions. (a) "Person" includes an individual, partner-
26 ship, society, association, joint-stock company, corporation, estate,
27 receiver, trustee, assignee, referee, and any other person acting in a
28 fiduciary or representative capacity, whether appointed by a court or
29 otherwise, and any combination of the foregoing.
30 (b) When used in this subchapter for the purpose of the taxes imposed
31 by this subchapter, the following terms shall mean:
32 (1) "Purchaser." A person who purchased property or to whom are
33 rendered services, the receipts from which are taxable under this
34 subchapter.
35 (2) "Receipt." The amount of the sale price of any property and the
36 charge for any service taxable under this subchapter, valued in money,
37 whether received in money or otherwise, including any amount for which
38 credit is allowed by the vendor to the purchaser, without any deduction
39 for expenses or early payment discounts, but excluding any credit for
40 tangible personal property accepted in part payment and intended for
41 resale.
42 (3) "Sale." Any transfer of title or possession or both, exchange or
43 barter, rental, lease or license to use or consume, conditional or
44 otherwise, in any manner or by any means whatsoever for a consideration,
45 or any agreement therefor, including the rendering of any service, taxa-
46 ble under this subchapter, for a consideration or any agreement there-
47 for.
48 (4) "Vendor." A person making sales of tangible personal property or
49 services, the receipts from which are taxed by this subchapter.
50 (5) "Tax commission." Tax commission of the state of New York.
51 (6) "Tax law." Tax law of the state of New York.
52 § 11-2049 Imposition of tax. On and after September first, nineteen
53 hundred eighty, there is hereby imposed within the city of New York, and
54 there shall be paid, a tax at the rate of eight percent on receipts from
S. 8578 1117
1 every sale of the service of providing parking, garaging or storing for
2 motor vehicles by persons operating a garage, other than a garage which
3 is part of premises occupied solely as a private one or two family
4 dwelling, parking lot or other place of business engaged in providing
5 parking, garaging or storing for motor vehicles, in every county within
6 the city of New York with a population density in excess of fifty thou-
7 sand persons per square mile, as determined by reference to the latest
8 federal census; provided, however, that receipts for such services paid
9 to a homeowner's association by its members or receipts paid by members
10 of a homeowner's association to a person leasing the parking facility
11 from the homeowner's association shall not be subject to the tax imposed
12 by this section. For purposes of this section, a homeowner's association
13 is an association, including a cooperative housing or apartment corpo-
14 ration, (i) the membership of which is comprised exclusively of owners
15 or residents of residential dwelling units, including owners of units in
16 a condominium, and including shareholders in a cooperative housing or
17 apartment corporation, where such units are located in a defined
18 geographical area such as a housing development or subdivision; and (ii)
19 which owns or operates a garage, parking lot or other place of business
20 engaged in providing parking, garaging or storing for motor vehicles
21 located in such area for use, whether or not exclusive, by such owners
22 or residents. The tax imposed on the receipts described in this section
23 is in addition to the tax imposed on such receipts under subchapter one
24 of this chapter or section eleven hundred seven of the tax law, as the
25 case may be.
26 § 11-2050 Transitional provisions. The taxes imposed by this subchap-
27 ter shall be paid with respect to receipts from all sales of services on
28 or after September first, nineteen hundred eighty although rendered or
29 agreed to be rendered under a prior contract. Where a service is sold
30 on a monthly, quarterly, yearly or other term basis, the charge for such
31 service shall be subject to tax under this subchapter to the extent that
32 such charge is applicable to any period on or after September first,
33 nineteen hundred eighty, and such charge shall be apportioned on the
34 basis of the ratio of the number of days falling within such period to
35 the total number of days in the full term or period.
36 § 11-2051 Exempt organizations and individuals. (a) Except as other-
37 wise provided in this section, any sale by or to any of the following
38 shall not be subject to the taxes imposed by this subchapter:
39 (1) The state of New York, or any of its agencies, instrumentalities,
40 public corporations, including a public corporation created pursuant to
41 agreement or compact with another state or Canada, or political subdivi-
42 sions where it is the purchaser, user or consumer, or where it is a
43 vendor of services of a kind not ordinarily sold by private persons;
44 (2) The United States of America, and any of its agencies and instru-
45 mentalities, insofar as it is immune from taxation where it is the
46 purchaser, user or consumer or where it sells services of a kind not
47 ordinarily sold by private persons;
48 (3) The United Nations or any international organization of which the
49 United States of America is a member where it is the purchaser, user or
50 consumer, or where it sells services of a kind not ordinarily sold by
51 private persons;
52 (4) Any corporation, association, trust, or community chest, fund or
53 foundation, organized and operated exclusively for religious, charita-
54 ble, scientific, testing for public safety, literary or educational
55 purposes, or to foster national or international amateur sports competi-
56 tion, but only if no part of its activities involve the provision of
S. 8578 1118
1 athletic facilities or equipment, or for the prevention of cruelty to
2 children or animals, no part of the net earnings of which inures to the
3 benefit of any private shareholder or individual, no substantial part of
4 the activities of which is carrying on propaganda, or otherwise attempt-
5 ing to influence legislation, except as otherwise provided in subsection
6 (h) of section five hundred one of the United States internal revenue
7 code of nineteen hundred fifty-four, as amended, and which does not
8 participate in, or intervene in, including the publishing or distribut-
9 ing of statements, any political campaign on behalf of any candidate for
10 public office;
11 (5) A post or organization of past or present members of the armed
12 forces of the United States, or an auxiliary unit or society of, or a
13 trust or foundation for, any such post or organization:
14 (A) organized in this state,
15 (B) at least seventy-five percent of the members of which are past or
16 present members of the armed forces of the United States and substan-
17 tially all of the other members of which are individuals who are cadets
18 or are spouses, widows or widowers of past or present members of the
19 armed forces of the United States or of cadets, and
20 (C) no part of the net earnings of which inures to the benefit of any
21 private shareholder or individual;
22 (6) The following Indian nations or tribes residing in New York state:
23 Cayuga, Oneida, Onondaga, Poospatuck, Saint Regis Mohawk, Seneca, Shin-
24 necock, Tonawanda and Tuscarora, where it is the purchaser, user or
25 consumer;
26 (7) A not-for-profit corporation operating as a health maintenance
27 organization subject to the provisions of article forty-four of the
28 public health law; and
29 (8) Cooperative and foreign corporations doing business in this state
30 pursuant to the rural electric cooperative law.
31 (b) Nothing in this section shall exempt sales of the service of
32 providing parking, garaging or storing for motor vehicles by an organ-
33 ization described in paragraph four or paragraph five of subdivision (a)
34 of this section operating a garage, other than a garage which is part of
35 premises occupied solely as a private one-family or two-family dwelling,
36 parking lot or other place of business engaged in providing parking,
37 garaging or storing for motor vehicles.
38 (c) (1) For purposes of paragraph four of subdivision (a) of this
39 section, in the case of a qualified amateur sports organization (A) the
40 requirement of such paragraph that no part of its activities involve the
41 provision of athletic facilities or equipment shall not apply, and (B)
42 such organization shall not fail to meet the requirement of such para-
43 graph merely because its membership is local or regional in nature.
44 (2) For purposes of this subdivision, the term "qualified amateur
45 sports organization" means any organization organized and operated
46 exclusively to foster national or international amateur sports competi-
47 tion if such organization is also organized and operated primarily to
48 conduct national or international competition in sports or to support
49 and develop amateur athletes for national or international competition
50 in sports.
51 (d) The tax imposed by this subchapter shall not apply to any sale of
52 services to an individual resident of the county in which such tax is
53 imposed when such services are rendered on a monthly or longer-term
54 basis at the principal location for the parking, garaging or storing of
55 a motor vehicle owned or leased, but only in the case of a lease for a
56 term of one year or more, by such individual resident. For purposes of
S. 8578 1119
1 this subdivision, the term "individual resident" means a natural person
2 who maintains in such county a permanent place of abode which is such
3 person's primary residence; the term "motor vehicle" means a motor vehi-
4 cle which is registered pursuant to the vehicle and traffic law at the
5 address of the primary residence referred to in this subdivision, or
6 which is registered pursuant to the vehicle and traffic law and leased
7 to an individual resident at the address of the primary residence
8 referred to in this subdivision, and which is not used in carrying on
9 any trade, business or commercial activity; and the term "lease for a
10 term of one year or more" shall not include any lease the term of which
11 is less than one year, irrespective of the fact that the cumulative
12 period for which such lease may be in effect is one year or more as the
13 result of the right to exercise an option to renew or other like
14 provision.
15 § 11-2052 Administration and collection; penalties; refunds. (a) The
16 taxes imposed by this subchapter shall be administered and collected by
17 the tax commission in the same manner as the taxes imposed by article
18 twenty-eight of the tax law are administered and collected by such
19 commission. All of the provisions of such article relating to or appli-
20 cable to the administration and collection of the taxes imposed by that
21 article shall apply to the taxes imposed by this subchapter, including
22 section eleven hundred one and sections eleven hundred thirty-one
23 through eleven hundred forty-seven inclusive, with the same force and
24 effect as if those provisions had been incorporated in full into this
25 subchapter and had expressly referred to the taxes imposed by this
26 subchapter, except to the extent that any provisions of such article
27 twenty-eight are either inconsistent with a provision of this subchap-
28 ter, or of article twenty-nine of the tax law, or are not relevant to
29 this subchapter or to article twenty-nine of the tax law. For purposes
30 of this subchapter, the term "tax" in part IV of such article twenty-
31 eight of the tax law shall include the taxes imposed by this subchapter.
32 (b) Notwithstanding subdivision (a) of this section or any other
33 provision of law to the contrary, the tax commission shall, subject to
34 such terms and conditions as it may consider necessary, delegate to the
35 commissioner of finance the power and authority to develop and adminis-
36 ter reasonable and necessary procedures, including the use of exemption
37 certificates for presentation to vendors, for determining entitlement to
38 exemption from tax under subdivision (d) of section 11-2051 of this
39 subchapter, and to prescribe, subject to the approval of the tax commis-
40 sion, rules and regulations necessary and appropriate in carrying out
41 such responsibilities.
42 (c) Any person who, in violation of any provision of subdivision (d)
43 of section 11-2051 of this subchapter or any rule or regulation promul-
44 gated thereunder, obtains or uses a certificate of exemption relating to
45 the exemption allowed by such subdivision, shall, if such violation was
46 due to negligence or intentional disregard of such provision or rule or
47 regulation, but without intent to defraud, be liable for a penalty of
48 not more than one hundred dollars for each such violation, and, if such
49 violation was due to fraud, be liable for a penalty of not more than
50 five hundred dollars for each such violation. The commissioner of
51 finance shall have the power, in his or her discretion, to waive, reduce
52 or compromise any penalty imposed pursuant to this subdivision. The
53 penalties authorized by this subdivision shall be in addition to any
54 penalty provided by section eleven hundred forty-five of the tax law,
55 and shall be paid and disposed of, and, if unpaid, shall be determined,
S. 8578 1120
1 assessed, collected and enforced, in the same manner as the taxes
2 imposed by this subchapter.
3 (d) Notwithstanding subdivision (d) of section 11-2051 of this
4 subchapter, section eleven hundred thirty-nine of the tax law or any
5 other provision of law to the contrary, an individual resident shall not
6 be entitled to a refund or credit with respect to any amount of tax
7 which was paid to a vendor prior to the date such individual resident
8 presented to the vendor a valid certificate of exemption from such tax.
9 § 11-2053 Deposit and disposition of revenue. (a) The tax commission
10 shall deposit daily to the credit of the comptroller of the state of New
11 York, all taxes, penalties and interest collected under this subchapter
12 in such responsible banks, banking houses or trust companies as may be
13 designated by the comptroller. Such deposits shall be kept in trust for
14 the city and separate and apart from all other monies in the possession
15 of the comptroller. The comptroller shall require adequate security
16 from all such depositories. Of the revenue collected under this
17 subchapter the comptroller shall retain in his or her hands such amount
18 as the commissioner of taxation and finance of the state of New York may
19 determine to be necessary for refunds under this subchapter and for
20 reasonable costs of the tax commission in administering, collecting and
21 distributing the taxes under this subchapter, out of which the comp-
22 troller shall pay any refunds made under the provisions of this subchap-
23 ter. The comptroller, after reserving such refund fund and such costs
24 shall, on or before the twelfth day of each month, pay to the commis-
25 sioner of finance of this city all taxes, interest and penalties
26 collected under this subchapter during the next preceding calendar month
27 and remaining to the comptroller's credit in such banks, banking houses
28 or trust companies at the close of business on the last day of such
29 preceding month, provided, however, that the comptroller shall on or
30 before the last day of June and December make a partial payment consist-
31 ing of the collections made during and including the first twenty-five
32 days of said months to the commissioner of finance of this city. The
33 amount so payable shall be certified to the comptroller by the president
34 of the tax commission or such president's delegate, who shall not be
35 held liable for any inaccuracy in such certificate. Provided, however,
36 any such certification may be based on such information as may be avail-
37 able to the tax commission at the time such certificate must be made
38 under this section and may be estimated on the basis of percentages or
39 other indices calculated from distributions for prior periods. Where the
40 amount so paid over in any such distribution is more or less than the
41 amount then due to this city, the amount of the overpayment or underpay-
42 ment shall be certified to the comptroller by the president of the tax
43 commission or such president's delegate, who shall not be held liable
44 for any inaccuracy in such certificate. The amount of the overpayment or
45 underpayment shall be so certified to the comptroller as soon after the
46 discovery of the overpayment or underpayment as reasonably possible and
47 subsequent payments and distributions by the comptroller to this city
48 shall be adjusted by subtracting the amount of any such overpayment from
49 or by adding the amount of any such underpayment to such number of
50 subsequent payments and distributions as the comptroller and the presi-
51 dent of the tax commission shall consider reasonable in view of the
52 amount of the overpayment or underpayment and all other facts and
53 circumstances.
54 (b) All payments to the commissioner of finance pursuant to subdivi-
55 sion (a) of this section shall be credited to and deposited in the
56 general fund of this city.
S. 8578 1121
1 § 11-2054 Construction and enforcement. This subchapter shall be
2 construed and enforced in conformity with articles twenty-eight and
3 twenty-nine of the tax law of the state of New York pursuant to which it
4 is enacted.
5 SUBCHAPTER 5
6 TAX ON BEER AND LIQUOR
7 § 11-2055 Definitions. When used in this subchapter the following
8 terms shall mean or include:
9 1. "Person." An individual, partnership, society, association,
10 corporation, joint-stock company, and any combination of individuals,
11 and also an executor, administrator, receiver, trustee or other fiduci-
12 ary.
13 2. "Alcohol." Ethyl alcohol, hydrated oxide of ethyl or spirit of
14 wine, from whatever source or by whatever process produced.
15 3. "Beers." All alcoholic beer, lager beer, ale, porter, and stout,
16 and all other fermented beverages of any name or description manufac-
17 tured from malt, wholly or in part, or from any substitute therefor
18 containing one-half of one per centum, or more, of alcohol by volume.
19 4. "Liquors." Any and all distilled or rectified spirits, alcohol,
20 brandy, cordial, whether the base therefor be wine or liquor, whiskey,
21 rum, gin and all other distilled beverages containing alcohol, including
22 all dilutions and mixtures of one or more of such liquids, including any
23 alcoholic liquids which would be wines if the alcoholic content thereof
24 were not more than twenty-four per centum by volume. Such term shall not
25 include liquors containing not more than twenty-four per centum of alco-
26 hol by volume.
27 5. "Alcoholic beverages." Beer or liquors.
28 6. "Distributor." Any person who imports or causes to be imported into
29 this city any alcoholic beverages which are or will be offered for sale
30 or used for any commercial purpose; any purchaser of warehouse receipts
31 for alcoholic beverages stored in a warehouse in this city who causes
32 such beverages to be removed from such warehouse; and also any person
33 who produces, distills, manufactures, brews, compounds, mixes or
34 ferments any alcoholic beverages within this city for sale, except: (a)
35 a person who manufactures, mixes or compounds alcoholic beverages the
36 ingredients of which consist only of alcoholic beverages on which the
37 taxes imposed by this subchapter have been paid, and (b) a person who
38 mixes or compounds alcoholic beverages with non-alcoholic ingredients
39 for sale and immediate consumption on the premises, who shall be a
40 distributor only with respect to the ingredients which consist of alco-
41 holic beverages upon which the taxes imposed by this subchapter have not
42 been paid.
43 7. "Noncommercial importer." A person other than a distributor who
44 imports or causes to be imported into this city alcoholic beverages,
45 except that such person shall not be a noncommercial importer where he
46 or she imports or causes to be imported into this city alcoholic bever-
47 ages in the quantities and under the conditions provided by subdivision
48 (e) of section 11-2056 of this subchapter.
49 8. "Sale." Any transfer, exchange or barter in any manner or by any
50 means whatsoever. The sale of warehouse receipts given upon the storage
51 of alcoholic beverages shall not be construed as a sale of the beverages
52 represented by such receipts.
53 9. "Use." Any compounding or mixing of alcoholic beverages with other
54 ingredients or other treatment of the same in such manner as to render
S. 8578 1122
1 them unfit or unsuitable for consumption as a beverage and also the
2 actual consumption or possession for consumption of alcoholic beverages
3 as a beverage or otherwise.
4 10. "Gallon." One hundred twenty-eight fluid ounces; "quart" means
5 thirty-two fluid ounces.
6 11. "Liter." A metric unit of capacity equal to one thousand cubic
7 centimeters of alcoholic beverages and equivalent to thirty-three and
8 eight hundred fourteen thousandths fluid ounces.
9 12. "City." The city of Staten Island.
10 13. "Commissioner of finance." Commissioner of finance of the city.
11 14. "Tax commission." The tax commission of the state of New York.
12 15. Unless a different meaning is clearly required, any term used in
13 this subchapter shall have the same meaning as when used in a comparable
14 context in the laws of the state of New York relating to taxes on alco-
15 holic beverages.
16 § 11-2056 Imposition of tax. (a) There are hereby imposed on a
17 distributor and a noncommercial importer excise taxes at the following
18 rates:
19 (1) twelve cents per gallon upon beers; and
20 (2) twenty-six and four-tenths cents per liter upon liquors, when sold
21 or used within this city, except when sold or used under such circum-
22 stances that this city is without power to impose such tax or when sold
23 to the United States, and except beers when sold to or by a voluntary
24 unincorporated organization of the armed forces of the United States
25 operating a place for the sale of goods pursuant to regulations promul-
26 gated by the appropriate executive agency of the United States, and
27 except when sold to professional foreign consuls-general, consuls and
28 vice-consuls who are nationals of the state appointing them and who are
29 assigned to foreign consulates in this city provided that American
30 consular officers of equal rank who are citizens of the United States
31 and who exercise their official functions at American consulates in such
32 foreign country are granted reciprocal exemptions; provided, however,
33 that the tax commission may permit the sale of alcohol without tax to a
34 holder of any industrial alcohol permit, alcohol permit or alcohol
35 distributor's permit, issued by the state liquor authority, and by the
36 holder of an alcohol distributor's permit, class A, issued by such
37 authority to a holder of a distiller's license, class B, or a winery
38 license, issued by such authority and may also permit the use of alcohol
39 for any purpose other than the production of alcoholic beverages by such
40 holders without tax.
41 Notwithstanding any other provision of this subchapter, the tax
42 commission may permit the purchase of liquors without tax by a holder of
43 a distiller's license issued by the state liquor authority from another
44 holder of a distiller's license by such authority, in which event the
45 liquors so purchased shall be subject to the tax imposed by this
46 subchapter in the hands of the purchaser in the same manner and to the
47 same extent as if such purchaser had imported or caused the same to be
48 imported into this city or had produced, distilled, manufactured,
49 brewed, compounded, mixed or fermented the same within this city.
50 (b) There is also imposed on each person, other than a distributor
51 within the meaning of this subchapter, who, on August first, nineteen
52 hundred eighty, owns and possesses for the purposes of sale beers or
53 liquors, a floor tax at the rates applicable under subdivision (a) upon
54 such beer in excess of one hundred gallons and upon such liquor in
55 excess of four hundred liters. Such floor tax shall be due and payable
S. 8578 1123
1 on the twentieth day of the month succeeding the month of August, nine-
2 teen hundred eighty.
3 (c) If, prior to August first, nineteen hundred eighty, a contract of
4 sale of alcoholic beverages was made, and delivery thereof pursuant to
5 such contract is made within this city on or after August first, nine-
6 teen hundred eighty, the vendor shall be deemed a distributor for the
7 purposes of this subchapter, and such alcoholic beverages shall be
8 deemed to be sold, and shall be subject to such taxes, at the time of
9 such delivery.
10 (d) In any case where the quantity of alcoholic beverages taxable
11 pursuant to this subchapter is a fractional part of one liter, or one
12 gallon in the case of beers, or an amount greater than a whole multiple
13 of liters, or gallons in the case of beers, the amount of tax levied and
14 imposed on such fractional part of one liter, or one gallon in the case
15 of beers, or fractional part of a liter, or gallon, in excess of a whole
16 multiple of liters or gallons shall be such fractional part of the rate
17 imposed by subdivisions (a) and (b) of this section.
18 (e) Notwithstanding any other provisions of this subchapter, there
19 shall be exempt from the taxes imposed under this subchapter, per month,
20 one quart of alcoholic beverages, or one gallon of such beverages in the
21 case of a person arriving directly from American Samoa, Guam or the
22 Virgin Islands of the United States not more than one quart of which
23 shall have been acquired elsewhere than in such insular possessions:
24 (1) purchased outside this city as an incident to a journey from which
25 the purchaser is returning and
26 (2) not to be offered for sale or used for any commercial purpose,
27 provided such alcoholic beverages accompany such person on his or her
28 return to this city and provided, further, that in the case of a person
29 arriving in this city from other than a state of the United States,
30 including the District of Columbia, the Virgin Islands of the United
31 States or a contiguous country maintaining a free zone or free port,
32 such person shall have remained beyond the territorial limits of the
33 United States for a period of not less than forty-eight hours.
34 Provided, however, where the amounts purchased outside the city or
35 brought in exceed the amounts specified in this subdivision but are not
36 in excess of one liter in the case of the references to one quart or
37 four liters in the case of the reference to one gallon, and where no
38 duty is required by the laws of the United States to be paid on such
39 amounts, such metric standards of fill shall be substituted for one
40 quart and one gallon, respectively, and such amounts shall be exempt
41 from tax under the conditions provided for in this subdivision.
42 § 11-2057 Manner of administration and collection. All the provisions
43 of article eighteen of the tax law shall apply to the taxes imposed by
44 subdivision (a) of section 11-2056 of this subchapter, and the
45 provisions of sections four hundred twenty, four hundred twenty-six,
46 four hundred twenty-nine through four hundred thirty-four, four hundred
47 thirty-six and four hundred thirty-seven of the tax law shall apply to
48 the tax imposed by subdivision (b) of section 11-2056 of this subchap-
49 ter, so far as such sections can be made applicable to the taxes imposed
50 by this subchapter with such limitations as set forth in section four
51 hundred forty-five of the tax law and such modifications as may be
52 necessary in order to adapt such language to the taxes imposed by this
53 subchapter.
54 § 11-2058 State tax commission; administration. The taxes imposed by
55 this subchapter shall be administered and collected by the tax commis-
56 sion in the same manner as the taxes imposed under sections four hundred
S. 8578 1124
1 twenty-four and four hundred twenty-five of the tax law subject to all
2 provisions of that article as may be applicable. The tax commission may
3 make such provisions as it deems necessary for the joint administration
4 and collection of the state and local taxes imposed and authorized by
5 article eighteen of the tax law and this subchapter. Nothing in such
6 article eighteen or this subchapter which requires payment of both state
7 and local taxes to the tax commission shall be construed as the payment
8 of either tax more than once.
9 § 11-2059 Disposition of revenues. All taxes, penalties and interest
10 imposed by this subchapter, which are collected by the tax commission,
11 shall be deposited daily with such responsible banks, banking houses or
12 trust companies, as may be designated by the state comptroller, to the
13 credit of the comptroller, in trust for this city. Such deposits shall
14 be kept in trust and separate and apart from all other monies in the
15 possession of the comptroller. The comptroller shall require adequate
16 security from all such depositories of such revenues collected by the
17 tax commission. The comptroller shall retain in his or her hands such
18 amount as the commissioner of taxation and finance may determine to be
19 necessary for refunds in respect of the taxes imposed by this subchap-
20 ter, and for reasonable costs of the state tax commission in administer-
21 ing, collecting and distributing such taxes, out of which the comp-
22 troller shall pay any refunds of such taxes to which taxpayers shall be
23 entitled under the provisions of this subchapter. The comptroller, after
24 reserving such refund and such costs shall, on or before the twelfth day
25 of each month, pay to the commissioner of finance the taxes, penalties
26 and interest imposed by this subchapter, collected by the state tax
27 commission pursuant to this subchapter during the next preceding calen-
28 dar month. The amount so payable shall be certified to the comptroller
29 by the president of the state tax commission or his or her delegate, who
30 shall not be held liable for any inaccuracy in such certificate. Where
31 the amount so paid over to the city in any such distribution is more or
32 less than the amount then due to the city, the amount of the overpayment
33 or underpayment shall be certified to the comptroller by the president
34 of the state tax commission or his or her delegate, who shall not be
35 held liable for any inaccuracy in such certificate. The amount of the
36 overpayment or underpayment shall be so certified to the comptroller as
37 soon after the discovery of the overpayment or underpayment as reason-
38 ably possible and subsequent payments and distributions by the comp-
39 troller to the city shall be adjusted by subtracting the amount of any
40 such overpayment from or by adding the amount of any such underpayment
41 to such number of subsequent payments and distributions as the comp-
42 troller and the president of the state tax commission shall consider
43 reasonable in view of the amount of the overpayment or underpayment and
44 all other facts or circumstances.
45 § 11-2060 Construction. This subchapter shall be construed and
46 enforced in conformity with section four hundred forty-five of the tax
47 law, pursuant to which it is enacted.
48 CHAPTER 21
49 REAL PROPERTY TAX
50 § 11-2101 Definitions. When used in this chapter the following terms
51 shall mean or include:
52 1. "Person." An individual, partnership, society, association, joint
53 stock company, corporation, estate, receiver, trustee, assignee, referee
54 or any other person acting in a fiduciary or representative capacity,
S. 8578 1125
1 whether appointed by a court or otherwise, any combination of individ-
2 uals, and any other form of unincorporated enterprise owned or conducted
3 by two or more persons.
4 2. "Deed." Any document or writing, other than a will, regardless of
5 where made, executed or delivered, whereby any real property or interest
6 therein is created, vested, granted, bargained, sold, transferred,
7 assigned or otherwise conveyed, including any such document or writing
8 whereby any leasehold interest in real property is granted, assigned or
9 surrendered.
10 3. "Instrument." Any document or writing, other than a deed or a will,
11 regardless of where made, executed or delivered, whereby any economic
12 interest in real property is transferred.
13 4. "Transaction." Any act or acts, regardless of where performed, and
14 whether or not reduced to writing, unless evidenced by a deed or instru-
15 ment, whereby any economic interest in real property is transferred,
16 other than a transfer pursuant to the laws of intestate succession.
17 5. "Real property." Every estate or right, legal or equitable, present
18 or future, vested or contingent, in lands, tenements or hereditaments,
19 which are located in whole or in part within the city of Staten Island.
20 It shall not include a mortgage, a release of mortgage or, for purposes
21 of paragraph three and subparagraphs (ii) and (iii) of paragraph seven
22 of subdivision a of section 11-2102 of this chapter, a leasehold inter-
23 est in a one, two or three-family house or an individual dwelling unit
24 in a dwelling which is to be occupied or is occupied as the residence or
25 home of four or more families living independently of each other. It
26 shall not include rights to sepulture.
27 6. "Economic interest in real property." The ownership of shares of
28 stock in a corporation which owns real property; the ownership of an
29 interest or interests in a partnership, association or other unincorpo-
30 rated entity which owns real property; and the ownership of a beneficial
31 interest or interests in a trust which owns real property.
32 7. "Transfer" or "transferred." When used in relation to an economic
33 interest in real property, the terms "transfer" or "transferred" shall
34 include the transfer or transfers or issuance of shares of stock in a
35 corporation, interest or interests in a partnership, association or
36 other unincorporated entity, or beneficial interest in a trust, whether
37 made by one or several persons, or in one or several related trans-
38 actions, which shares of stock or interest or interests constitute a
39 controlling interest in such corporation, partnership, association,
40 trust or other entity.
41 8. "Controlling interest." In the case of a corporation, fifty percent
42 or more of the total combined voting power of all classes of stock of
43 such corporation, or fifty percent or more of the total fair market
44 value of all classes of stock of such corporation; and, in the case of a
45 partnership, association, trust or other entity, fifty percent or more
46 of the capital, profits or beneficial interest in such partnership,
47 association, trust or other entity.
48 9. "Consideration." The price actually paid or required to be paid for
49 the real property or economic interest therein, without deduction for
50 mortgages, liens or encumbrances, whether or not expressed in the deed
51 or instrument and whether paid or required to be paid by money, proper-
52 ty, or any other thing of value. It shall include the cancellation or
53 discharge of an indebtedness or obligation. It shall also include the
54 amount of any mortgage, lien or other encumbrance, whether or not the
55 underlying indebtedness is assumed.
S. 8578 1126
1 10. "Net consideration." Any consideration, exclusive of any mortgage
2 or other lien or encumbrance on the real property or interest therein
3 which existed before the delivery of the deed and remains thereon after
4 the delivery of the deed.
5 11. "Comptroller." The comptroller of the city of Staten Island.
6 12. "Commissioner of finance." The commissioner of finance of the city
7 of Staten Island.
8 13. "City." The city of Staten Island.
9 14. "Grantor." The person or persons making, executing or delivering
10 the deed. The term "grantor" also includes the entity with an interest
11 in real property or the person or persons who transfer an economic
12 interest in real property.
13 15. "Grantee." The person or persons accepting the deed or who obtain
14 any of the real property which is the subject of the deed or any inter-
15 est therein. The term "grantee" also includes the person or persons to
16 whom an economic interest in real property is transferred.
17 16. "Affixed." Includes attached or annexed by adhesion, stapling or
18 otherwise, or a notation by stamp, imprint or writing.
19 17. "Register." Includes the city register and the county clerk of the
20 county of Richmond.
21 18. "Tax appeals tribunal." The tax appeals tribunal established by
22 section one hundred sixty-eight of the charter of the preceding munici-
23 pality as it existed January first, nineteen hundred ninety-four.
24 § 11-2102 Imposition of tax. a. A tax is hereby imposed on each deed
25 at the time of delivery by a grantor to a grantee when the consideration
26 for the real property and any improvement thereon, whether or not
27 included in the same deed, exceeds twenty-five thousand dollars. The tax
28 shall be:
29 (1) at the rate of one-half of one per centum of the net consideration
30 with respect to conveyances made before July first, nineteen hundred
31 seventy-one, or made in performance of a contract therefor executed
32 before such date;
33 (2) at the rate of one percent of such net consideration with respect
34 to
35 (i) all conveyance made on or after July first, nineteen hundred
36 seventy-one and before February first, nineteen hundred eighty-two, or
37 made in performance of a contract therefor executed during such period;
38 (ii) conveyances made on or after February first, nineteen hundred
39 eighty-two and before July first, nineteen hundred eighty-two of one,
40 two or three-family houses and individual residential condominium units,
41 and
42 (iii) conveyances made on or after February first, nineteen hundred
43 eighty-two and before July first, nineteen hundred eighty-two where the
44 consideration is less than five hundred thousand dollars, other than
45 grants, assignments or surrenders of leasehold interests in real proper-
46 ty taxable under paragraph three of this subdivision;
47 (3) at the rate of one percent of the consideration with respect to
48 grants, assignments or surrenders of leasehold interests in real proper-
49 ty made on or after February first, nineteen hundred eighty-two and
50 before July first, nineteen hundred eighty-two where the consideration
51 if five hundred thousand dollars or more, provided however, that for
52 purposes of this paragraph the amount subject to tax in the case of a
53 grant of a leasehold interest in real property shall be only such amount
54 as is not considered rent for purposes of the tax imposed by chapter
55 seven of this title;
S. 8578 1127
1 (4) at the rate of two percent of the consideration with respect to
2 all other conveyances made on or after February first, nineteen hundred
3 eighty-two and before July first, nineteen hundred eighty-two, except
4 that, for purposes of this paragraph, where the consideration includes
5 the amount of any mortgage or other lien or encumbrance on the real
6 property or interest therein which existed before the delivery of the
7 deed and remains thereon after the delivery of the deed, the portion of
8 the consideration ascribable to such mortgage, lien or encumbrance shall
9 be taxed at the rate of one percent, and only the balance of such
10 consideration shall be taxed at the rate of two percent;
11 (5) at the rate of one percent of the consideration with respect to
12 conveyances made on or after July first, nineteen hundred eighty-two and
13 before August first, nineteen hundred eighty-nine of one, two or three-
14 family houses and individual residential condominium units;
15 (6) at the rate of one percent of the consideration with respect to
16 conveyances made on or after July first, nineteen hundred eighty-two and
17 before August first, nineteen hundred eighty-nine where the consider-
18 ation is less than five hundred thousand dollars, other than grants,
19 assignments or surrenders of leasehold interests in real property taxa-
20 ble as hereafter provided;
21 (7) (i) at the rate of one percent of the consideration with respect
22 to a grant, assignment or surrender, made on or after July first, nine-
23 teen hundred eighty-two and before August first, nineteen hundred eight-
24 y-nine, of a leasehold interest in a one, two or three-family house or
25 an individual dwelling unit in a dwelling which is to be occupied or is
26 occupied as the residence or home of four or more families living inde-
27 pendently of each other,
28 (ii) at the rate of one percent of the consideration with respect to
29 grants, assignments or surrenders of leasehold interests in real proper-
30 ty made on or after July first, nineteen hundred eighty-two and before
31 August first, nineteen hundred eighty-nine where the consideration is
32 less than five hundred thousand dollars, or
33 (iii) at the rate of two percent of the consideration with respect to
34 grants, assignments or surrenders of leasehold interests in real proper-
35 ty made on or after July first, nineteen hundred eighty-two and before
36 August first, nineteen hundred eighty-nine where the consideration is
37 five hundred thousand dollars or more;
38 (iv) provided, however, that for purposes of subparagraphs (i), (ii)
39 and (iii) of this paragraph, the amount subject to tax in the case of a
40 grant of a leasehold interest shall be only such amount as is not
41 considered rent for purposes of the tax imposed by chapter seven of this
42 title; and
43 (8) at the rate of two percent of the consideration with respect to
44 all other conveyances made on or after July first, nineteen hundred
45 eighty-two and before August first, nineteen hundred eighty-nine;
46 (9) with respect to conveyances made on or after August first, nine-
47 teen hundred eighty-nine, other than grants, assignments or surrenders
48 of leasehold interests in real property taxable as provided in paragraph
49 ten of this subdivision, the tax shall be at the following rates:
50 (i) at the rate of one percent of the consideration for conveyances of
51 one, two or three-family houses and individual residential condominium
52 units where the consideration is five hundred thousand dollars or less,
53 and at the rate of one and four hundred twenty-five thousandths of one
54 percent of the consideration for such conveyances where the consider-
55 ation is more than five hundred thousand dollars, and
S. 8578 1128
1 (ii) at the rate of one and four hundred twenty-five thousandths of
2 one percent of the consideration with respect to all other conveyances
3 where the consideration is five hundred thousand dollars or less, and at
4 the rate of two and six hundred twenty-five thousandths of one percent
5 where the consideration for such conveyances is more than five hundred
6 thousand dollars;
7 (10) With respect to a grant, assignment or surrender of a leasehold
8 interest in real property made on or after August first, nineteen
9 hundred eighty-nine, the tax shall be at the following rates:
10 (i) at the rate of one percent of the consideration for the granting,
11 assignment or surrender of a leasehold interest in a one, two or three-
12 family house or an individual dwelling unit in a dwelling which is to be
13 occupied or is occupied as the residence or home of four or more fami-
14 lies living independently of each other where the consideration is five
15 hundred thousand dollars or less, and at the rate of one and four
16 hundred twenty-five thousandths of one percent of the consideration
17 where the consideration for granting, assignment or surrender or such
18 leasehold interest is more than five hundred thousand dollars; and
19 (ii) at the rate of one and four hundred twenty-five thousandths of
20 one percent of the consideration for the granting, assignment or surren-
21 der of a leasehold interest in all other real property where the consid-
22 eration is five hundred thousand dollars or less, and at the rate of two
23 and six hundred twenty-five thousandths of one percent of the consider-
24 ation where the consideration for the granting, assignment or surrender
25 of such a leasehold interest is more than five hundred thousand dollars;
26 and
27 (iii) provided, however, that for purposes of subparagraphs (i) and
28 (ii) of this paragraph, the amount subject to tax in the case of a grant
29 of a leasehold interest shall be only such amount as is not considered
30 rent for purposes of the tax imposed by chapter seven of this title.
31 Where any real property is situated partly within and partly without
32 the boundaries of the city of Staten Island the consideration and net
33 consideration subject to tax shall be such part of the total consider-
34 ation and total net consideration attributable to that portion of such
35 real property situated within the city of Staten Island or to the inter-
36 est in such portion.
37 b. (1) In addition to the taxes imposed by subdivision a of this
38 section, there is hereby imposed a tax on each instrument or trans-
39 action, unless evidenced by a deed subject to tax under subdivision a of
40 this section, at the time of the transfer, whereby any economic interest
41 in real property is transferred by a grantor to a grantee, where the
42 consideration exceeds twenty-five thousand dollars.
43 (A) With respect to such transfers made on or after July thirteenth,
44 nineteen hundred eighty-six and before August first, nineteen hundred
45 eighty-nine, the tax shall be (i) at the rate of one percent of the
46 consideration where the real property the economic interest in which is
47 transferred is a one, two or three-family house, an individual cooper-
48 ative apartment, an individual residential condominium unit or an indi-
49 vidual dwelling unit in a dwelling which is to be occupied or is occu-
50 pied as the residence or home of four or more families living
51 independently of each other, or where the consideration for the transfer
52 is less than five hundred thousand dollars, and (ii) at the rate of two
53 percent of the consideration with respect to all other transfers.
54 (B) With respect to such transfers made on or after August first,
55 nineteen hundred eighty-nine, the tax shall be at the following rates:
S. 8578 1129
1 (i) at the rate of one percent of the consideration where the real
2 property, the economic interest in which is transferred, is a one, two
3 or three-family house, an individual cooperative apartment, an individ-
4 ual residential condominium unit or an individual dwelling unit in a
5 dwelling which is to be occupied or is occupied as the residence or home
6 of four or more families living independently of each other and where
7 the consideration for such transfer of an economic interest in such real
8 property is five hundred thousand dollars or less, and at the rate of
9 one and four hundred twenty-five thousandths of one percent of the
10 consideration where the consideration for such transfer of an economic
11 interest in such property is more than five hundred thousand dollars,
12 and
13 (ii) at the rate of one and four hundred twenty-five thousandths of
14 one percent of the consideration with respect to all other transfers of
15 an economic interest in real property where the consideration is five
16 hundred thousand dollars or less, and at the rate of two and six hundred
17 twenty-five thousandths of one percent of the consideration where the
18 consideration for such transfers is more than five hundred thousand
19 dollars.
20 (C) Where any real property, the economic interest in which is trans-
21 ferred, is situated partly within and partly without the boundaries of
22 the city of Staten Island, the consideration subject to tax shall be
23 such part of the consideration as is attributable to that portion of
24 such real property which is situated within the city of Staten Island.
25 (2) Notwithstanding the definition of "controlling interest" contained
26 in subdivision eight of section 11-2101 of this chapter or anything to
27 the contrary contained in subdivision seven of such section, in the case
28 of any transfer of shares of stock in a cooperative housing corporation
29 in connection with the grant or transfer of a proprietary leasehold, the
30 tax imposed by this subdivision shall apply to (i) the original transfer
31 of such shares of stock by the cooperative corporation or cooperative
32 plan sponsor, and (ii) any subsequent transfer of such shares of stock
33 by the owner thereof. Notwithstanding any provision of this chapter to
34 the contrary, in the case of a transfer described in clause (ii) of this
35 subparagraph which relates to an individual residential unit, the
36 consideration for such transfer shall not include any portion of the
37 unpaid principal of any mortgage on the real property of the cooperative
38 housing corporation. In determining the tax on a transfer described in
39 clause (i) of this subparagraph, a credit shall be allowed for a propor-
40 tionate part of the amount of any tax paid upon the conveyance to the
41 cooperative housing corporation of the land and building or buildings
42 comprising the cooperative dwelling or dwellings. Such proportionate
43 part shall be the amount determined by multiplying the amount of tax
44 paid upon the conveyance to the cooperative housing corporation by a
45 fraction, the numerator of which shall be the number of shares of stock
46 transferred in a transaction described in clause (i) of this subpara-
47 graph and the denominator of which shall be the total number of
48 outstanding shares of stock of the cooperative housing corporation,
49 including any stock held by the corporation. In no event, however, shall
50 such credit reduce the tax on a transfer described in clause (i) of this
51 subparagraph below zero, nor shall any such credit be allowed for any
52 tax paid more than twenty-four months prior to the date on which occurs
53 the first in a series of transfers of shares of stock in an offering of
54 cooperative housing corporation shares described in clause (i) of this
55 subparagraph. For purposes of this paragraph, the term "cooperative
56 housing corporation" shall not include a housing company organized and
S. 8578 1130
1 operating pursuant to the provisions of article two, four, five or elev-
2 en of the private housing finance law.
3 (3) Notwithstanding the definition of "controlling interest" contained
4 in paragraph eight of section 11-2101 of this chapter or anything to the
5 contrary contained in paragraph seven of such section, in the case of a
6 corporation, other than a cooperative housing corporation, partnership,
7 association, trust or other entity formed for the purpose of cooperative
8 ownership of real property, the tax imposed by this subdivision shall
9 apply to each transfer of shares of stock in such corporation, interest
10 in such partnership, association or other entity or beneficial interest
11 in such trust, in connection with the grant or transfer of a proprietary
12 leasehold. Notwithstanding any provision of this chapter to the contra-
13 ry, in the case of a transfer described in this paragraph which relates
14 to an individual residential unit, other than the original transfer of
15 such a unit by the cooperative entity or cooperative plan sponsor, the
16 consideration for such transfer shall not include any portion of the
17 unpaid principal of any mortgage on the real property of such corpo-
18 ration, partnership, association, trust or other entity. Notwithstanding
19 any other provision of law to the contrary, all revenues arising from
20 the tax imposed pursuant to this paragraph shall be credited to and
21 deposited in the general fund of the city, but no part of such revenues
22 may be expended unless appropriated in the annual budget of the city.
23 c. (1) Anything to the contrary notwithstanding, in the case of any
24 conveyance or transfer of real property or any economic interest therein
25 in complete or partial liquidation of a corporation, partnership, asso-
26 ciation, trust or other entity, the taxes imposed by this section shall
27 be measured by (i) the consideration for such conveyance or transfer, or
28 (ii) the value of the real property or economic interest therein, which-
29 ever is greater.
30 (2) If, within twenty-four months following the transfer of an econom-
31 ic interest in real property which is subject to the tax imposed by this
32 chapter, the corporation, partnership, association, trust or other enti-
33 ty owning the real property the economic interest in which was so trans-
34 ferred, is liquidated, and such real property is conveyed to the grantee
35 or grantees of such economic interest, a credit shall be allowed against
36 the tax imposed by this chapter upon such conveyance in liquidation to
37 such grantee or grantees. The amount of such credit shall be equal to
38 the amount of the tax paid upon the prior transfer of the economic
39 interest in such real property, but shall in no event be greater than
40 the tax payable upon the conveyance in liquidation.
41 d. In the case of a transfer of an economic interest in any entity
42 that owns assets in addition to real property or interest therein, the
43 consideration subject to tax shall be deemed equal to the fair market
44 value of the real property or interest therein apportioned based on the
45 percentage of the ownership interest in the entity transferred.
46 e. (1) Notwithstanding anything contained in this section, the tax
47 imposed under subdivisions a and b of this section on any deed or other
48 instrument or transaction conveying or transferring real property or an
49 economic interest therein, that qualifies as a real estate investment
50 trust transfer, as defined below, shall be imposed at a rate equal to
51 fifty percent of the otherwise applicable rate.
52 (2) For purposes of this subdivision, a real estate investment trust
53 transfer shall mean (A) any deed or other instrument or transaction
54 conveying or transferring real property or an economic interest therein
55 to a real estate investment trust as defined in section eight hundred
56 fifty-six of the internal revenue code (a "REIT") or to a partnership or
S. 8578 1131
1 corporation in which a REIT owns a controlling interest immediately
2 following the transaction; and (B) any issuance or transfer of an inter-
3 est in a REIT, or in a partnership or corporation in which a REIT owns a
4 controlling interest immediately following the issuance or transfer in
5 connection with a transaction described in subparagraph (A) of this
6 paragraph.
7 Provided, however, a transaction described in the opening paragraph
8 of this paragraph shall not constitute a real estate investment trust
9 transfer unless (i) it occurs in connection with the initial formation
10 of the REIT and the conditions described in subparagraphs (C) and (D) of
11 this paragraph are satisfied, or (ii) in the case of any real estate
12 investment trust transfer occurring on or after July thirteenth, nine-
13 teen hundred ninety-six and before September first, two thousand twen-
14 ty-six, the transaction is described in subparagraph (E) of this para-
15 graph in which case the provision of such subparagraph shall apply.
16 (C) The value of the ownership interests in the REIT, or in a partner-
17 ship or corporation in which the REIT owns a controlling interest,
18 received by the grantor as consideration for such conveyance or transfer
19 must be equal to an amount not less than forty percent of the value of
20 the equity interest in the real property or economic interest therein
21 conveyed or transferred by the grantor to the grantee and such ownership
22 interests must be retained by the grantor or owners of the grantor for a
23 period of not less than two years following the date of such conveyance
24 or transfer; provided, however, that in the case of the death of the
25 grantor or an owner of the grantor within such two year period, this two
26 year retention requirement shall be deemed to be satisfied notwithstand-
27 ing any conveyance or transfer of such ownership interests held by such
28 individual as a result of such death. The value of the equity interest
29 in such real property or economic interest therein shall be computed by
30 subtracting from the consideration for the conveyance or transfer of the
31 real property or economic interest therein the unpaid balance of any
32 loans secured by mortgages or other encumbrances which are liens on the
33 real property or economic interest therein immediately before the
34 conveyance or transfer. For purposes of this computation, in the case of
35 a conveyance or transfer of real property other than a conveyance or
36 transfer of an economic interest in real property, the amount of the
37 unpaid balance of any loans secured by mortgages or other encumbrances
38 to be subtracted from consideration is determined by multiplying the
39 total unpaid balance of any loans secured by mortgages or other encum-
40 brances on the real property by the percentage of the ownership interest
41 in the real property being conveyed or transferred to the grantee. In
42 the case of a transfer of an economic interest in real property, such
43 amount to be subtracted is equal to the sum of the following amounts:
44 (i) a reasonable apportionment to the interests in real property owned
45 by the entity of the amount of any loans secured by encumbrances on the
46 ownership interests in the entity which are being conveyed or trans-
47 ferred and (ii) the amount of any loans secured by mortgages or other
48 encumbrances on the real property of the entity multiplied by the
49 percentage interest in the entity which is being conveyed or trans-
50 ferred.
51 Provided, however, that for purposes of the computation made pursuant
52 to this subparagraph, any mortgages or other encumbrances on the real
53 property or economic interest therein which are created in contemplation
54 of the initial formation of the REIT or in contemplation of the convey-
55 ance or transfer of such real property or economic interest therein to
56 the REIT or to a partnership or corporation in which the REIT owns a
S. 8578 1132
1 controlling interest immediately following the conveyance or transfer
2 shall not be considered.
3 (D) Seventy-five percent or more of the cash proceeds received by such
4 REIT from the sale of ownership interests in such REIT upon its initial
5 formation must be used: (i) to make payments on loans secured by any
6 interest in real property, including an ownership interest in an entity
7 owning real property, which is owned directly or indirectly by such
8 REIT; (ii) to pay for capital improvements to real property or any
9 interest therein owned directly or indirectly by such REIT; (iii) to pay
10 brokerage fees and commissions, professional fees and payments to or on
11 behalf of a tenant as an inducement to enter into a lease or sublease
12 incurred in connection with the creation of a leasehold or sublease
13 pertaining to real property or any interest therein owned directly or
14 indirectly by such REIT; (iv) to acquire any interest in real property,
15 including an ownership interest in any entity owning real property,
16 apart from any acquisition to which a reduced rate of tax is applicable
17 pursuant to this subdivision, without regard to this subparagraph; or
18 (v) for reserves established for any of the purposes described in clause
19 (i), (ii) or (iii) of this subparagraph. For purposes of this subpara-
20 graph, the term real property shall include real property wherever
21 located.
22 (E) If a transaction otherwise described in subparagraph (A) or (B) of
23 this paragraph occurs other than in connection with the initial forma-
24 tion of a REIT, the condition set forth in subparagraph (D) shall be
25 disregarded and such transaction shall constitute a "real estate invest-
26 ment trust transfer" if the condition set forth in subparagraph (C)
27 would be satisfied if "fifty percent" is substituted for "forty percent"
28 therein.
29 (3) For purposes of determining the consideration for a real estate
30 investment trust transfer taxable under this subdivision the value of
31 the real property or interest therein shall be equal to the estimated
32 market value as determined by the commissioner of finance for real prop-
33 erty tax purposes as reflected on the most recent notice of assessment
34 issued by such commissioner, or such other value as the taxpayer may
35 establish to the satisfaction of such commissioner.
36 (4) This subdivision shall only apply to real estate investment trust
37 transfers occurring on or after the effective date of this subdivision.
38 f. Notwithstanding any other provision of this chapter, in determining
39 the tax imposed by this chapter with respect to a deed, instrument or
40 transaction conveying or transferring a one, two or three-family house,
41 an individual residential condominium unit, an individual residential
42 cooperative apartment, or an interest therein, the consideration for
43 such conveyance or transfer shall exclude, to the extent otherwise
44 included therein, the amount of any mortgage or other lien or encum-
45 brance on the real property or interest therein that existed before the
46 delivery of the deed or the transfer and remains thereon after the date
47 of delivery of the deed or the transfer, other than any mortgage, lien
48 or encumbrance placed on the property or interest in connection with, or
49 in anticipation of, the conveyance or transfer, or by reason of deferred
50 payments of the purchase price whether represented by notes or other-
51 wise. Provided, however, that this subdivision shall not apply to a
52 conveyance or transfer (1) to a mortgagee, lienor or encumbrancer,
53 regardless of whether the grantor or transferor is or was personally
54 liable for the indebtedness secured by the mortgage, lien or encumbrance
55 or whether the mortgage, lien or encumbrance is canceled of record, or
S. 8578 1133
1 (2) which qualifies as a "real estate investment trust transfer" as
2 defined in subdivision e of this section.
3 § 11-2103 Presumptions and burden of proof. For the purpose of the
4 proper administration of this chapter and to prevent evasion of the tax
5 hereby imposed, it shall be presumed that all deeds and transfers of
6 economic interests in real property are taxable. Where the consider-
7 ation includes property other than money, it shall be presumed that the
8 consideration is the value of the real property or interest therein.
9 Such presumptions shall prevail until the contrary is established and
10 the burden of proving the contrary shall be on the taxpayer. The burden
11 of proving that a lien or encumbrance existed on the real property or
12 interest therein before the delivery of the deed and remained thereon
13 thereafter and the burden of proving the amount of such lien or encum-
14 brance at the time of the delivery of the deed shall be on the taxpayer.
15 § 11-2104 Payment. The tax imposed hereunder shall be paid by the
16 grantor to the commissioner of finance at the office of the register in
17 the county where the deed is or would be recorded within thirty days
18 after the delivery of the deed by the grantor to the grantee but before
19 the recording of such deed, or, in the case of a tax on the transfer of
20 an economic interest in real property, at such place as the commissioner
21 of finance shall designate, within thirty days after the transfer. The
22 grantee shall also be liable for the payment of such tax in the event
23 that the amount of tax due is not paid by the grantor or the grantor is
24 exempt from tax. All moneys received as such payments by the register
25 during the preceding month shall be transmitted to the commissioner of
26 finance on the first day of each month or on such other day as is mutu-
27 ally agreeable to the commissioner of finance and the register. From the
28 moneys so received by him or her, the commissioner of finance shall set
29 said in a special account:
30 (1) the total amount of taxes imposed pursuant to the provisions of
31 paragraph three of subdivision a of section 11-2102 of this chapter
32 including any interest or penalties thereon;
33 (2) fifty percent of the total amount of taxes imposed pursuant to the
34 provisions of paragraph four of subdivision a of section 11-2102 of this
35 chapter, including fifty percent of any interest or penalties thereon,
36 provided, however, that where such tax is measured by the consideration
37 for a conveyance without deduction for the amount of any mortgage or
38 other lien or encumbrance on the real property or interest therein which
39 existed before the delivery of the deed and remains thereon after the
40 delivery of the deed, the entire amount of tax imposed at the rate of
41 one percent on the portion of the consideration ascribable to such
42 nondeductible mortgage, lien or other encumbrance, including any inter-
43 est or penalties thereon, and fifty percent of the tax on the balance of
44 the consideration, including fifty percent of any interest or penalties
45 thereon, shall be set aside in such special account;
46 (3) fifty percent of the total amount of taxes imposed pursuant to the
47 provisions of subparagraph (iii) of paragraph seven of subdivision a of
48 section 11-2102 of this chapter, including fifty percent of any interest
49 or penalties thereon;
50 (4) fifty percent of the total amount of taxes imposed pursuant to the
51 provisions of paragraph eight of subdivision a of section 11-2102 of
52 this chapter, including fifty percent of any interest or penalties ther-
53 eon;
54 (5) fifty percent of the total amount of taxes imposed at the rate of
55 two percent pursuant to the provisions of clause (ii) of subparagraph A
S. 8578 1134
1 of paragraph one of subdivision b of section 11-2102 of this chapter
2 including fifty percent of any interest or penalties thereon;
3 (6) with respect to any conveyance of real property, transfer of an
4 economic interest therein, or any grant, assignment or surrender of a
5 leasehold interest in real property, made on or after August first,
6 nineteen hundred eighty-nine and taxable under this chapter, in each
7 instance where the tax rate is in excess of two percent, a portion of
8 the tax received equal to one percent of the consideration subject to
9 the tax plus any interest or penalty attributable to such portion of the
10 tax; and
11 (7) notwithstanding anything in subdivision six of this section to the
12 contrary, in each instance where the tax rate imposed pursuant to subdi-
13 vision e of section 11-2102 of this chapter is in excess of one percent,
14 a portion of the tax received equal to one-half of one percent of the
15 total consideration for the real property or economic interest therein
16 conveyed or transferred, plus any interest or penalty attributable to
17 such portion of the tax.
18 Moneys in such account shall be used for payment by such commissioner
19 to the state comptroller for deposit in the urban mass transit operating
20 assistance account of the mass transportation operating assistance fund
21 of any amount of insufficiency certified by the state comptroller pursu-
22 ant to the provisions of subdivision six of section eighty-eight-a of
23 the state finance law, and, on the fifteenth day of each month, the
24 commissioner of finance shall transmit all funds in such account on the
25 last day of the preceding month, except the amount required for the
26 payment of any amount of insufficiency certified by the state comp-
27 troller and such amount as he or she deems necessary for refunds and
28 such other amounts necessary to finance the New York City transportation
29 disabled committee and the New York City paratransit system as estab-
30 lished by section fifteen-b of the transportation law, provided, howev-
31 er, that such amounts shall not exceed six percent of the total funds in
32 the account but in no event be less than one hundred seventy-five thou-
33 sand dollars beginning April first, nineteen hundred eighty-six, and
34 further that beginning November fifteenth, nineteen hundred eighty-four
35 and during the entire period prior to operation of such system, the
36 total of such amounts shall not exceed three hundred seventy-five thou-
37 sand dollars for the administrative expenses of such committee and fifty
38 thousand dollars for the expenses of the agency designated pursuant to
39 paragraph b of subdivision five of such section, and other amounts
40 necessary to finance the operating needs of the private bus companies
41 franchised by the city of New York and eligible to receive state operat-
42 ing assistance under section eighteen-b of the transportation law,
43 provided, however, that such amounts shall not exceed four percent of
44 the total funds in the account, to the New York city transit authority
45 for mass transit within the city.
46 § 11-2105 Returns. a. A joint return shall be filed by both the
47 grantor and the grantee for each deed whether or not a tax is due there-
48 on. Such return shall be filed with the commissioner of finance within
49 thirty days after the delivery of the deed by the grantor to the grantee
50 but before the recording of such deed. The commissioner of finance may,
51 by rule, require that such returns be filed electronically.
52 Filing shall be accomplished by delivering the return to the register
53 for transmittal to the commissioner of finance or, where required by the
54 commissioner of finance, by electronic filing of the return in a manner
55 designated by the commissioner of finance. In the case of a transfer of
56 an economic interest in real property, a joint return shall be filed in
S. 8578 1135
1 the above manner by both the grantor and the grantee for each instrument
2 or transaction by which such transfer is effected, whether or not a tax
3 is due thereon. Such return shall be filed with the commissioner of
4 finance, at such place and in such manner as he or she may designate
5 within thirty days after the transfer. The commissioner of finance shall
6 prescribe the form of the return and the information which it shall
7 contain. The return shall be signed by both the grantor or the grantor's
8 agent and the grantee or the grantee's agent. Where the commissioner of
9 finance requires electronic filing, the return shall be signed electron-
10 ically. Upon the filing of such return for a deed, evidence of the
11 filing shall be affixed to the deed by the register. The commissioner of
12 finance may provide for the use of stamps as evidence of payment and
13 that they shall be affixed to the deed before it is recorded. Where
14 either the grantor or grantee has failed to sign the return, it shall be
15 accepted as a return, but the party who has failed to sign the return or
16 file a separate return shall be subject to the penalties applicable to a
17 person who has failed to file a return and the period of limitations for
18 assessment of tax or of additional tax shall not apply to such party.
19 For good cause, the commissioner of finance may waive any rule requiring
20 electronic filing and may permit a return to be filed in such other
21 manner as the commissioner of finance may designate.
22 b. Returns shall be preserved for three years and thereafter until
23 the commissioner of finance permits them to be destroyed.
24 c. The commissioner of finance may require amended returns to be filed
25 within twenty days after notice and to contain the information specified
26 in the notice.
27 d. If a return required by this chapter is not filed or if a return
28 when filed is incorrect or insufficient on its face the commissioner of
29 finance shall take the necessary steps to enforce the filing of such a
30 return or of a corrected return.
31 e. Where a deed, or instrument or transaction has more than one gran-
32 tor or more than one grantee, the return may be signed by any one of the
33 grantors and by any one of the grantees, provided, however, that those
34 not signing shall not be relieved of any liability for the tax imposed
35 by this chapter.
36 f. The payment of, and the filing of returns relating to, the taxes
37 imposed hereunder, shall be required as a condition precedent to the
38 recording or filing of a deed, lease, assignment or surrender of lease
39 or other instrument effecting a conveyance or transfer subject to such
40 taxes.
41 g. Every cooperative housing corporation shall be required to file an
42 information return with the commissioner of finance as follows: such
43 information return shall be filed by February fifteenth of the year two
44 thousand and of each year thereafter, covering the reporting period
45 beginning on January sixth of the year preceding the filing and ending
46 on January fifth of the year of the filing. For reporting periods begin-
47 ning before January sixth, nineteen hundred ninety-nine, such informa-
48 tion return shall be filed by July fifteenth of each year covering the
49 preceding period of January first through June thirtieth and by January
50 fifteenth of each year covering the preceding period of July first
51 through December thirty-first provided, however, that for the reporting
52 period from January first through June thirtieth, nineteen hundred
53 eighty-nine, such information return shall be filed by July thirty-
54 first, nineteen hundred eighty-nine. The return shall contain such
55 information regarding the transfer of shares of stock in the cooperative
56 housing corporation as the commissioner may deem necessary, including
S. 8578 1136
1 but not limited to, the names, addresses and employer identification
2 numbers or social security numbers of the grantor and the grantee, the
3 number of shares transferred, the date of the transfer and the consider-
4 ation paid for such transfer, provided, however, that if such cooper-
5 ative housing corporation elects that such information return be deemed
6 an application for an abatement pursuant to paragraph (f) of subdivision
7 three of section four hundred sixty-seven-a of the real property tax
8 law, such return shall contain the information required pursuant to
9 paragraph (d) of subdivision three of such section. The commissioner of
10 finance may enter into an agreement with the commissioner of taxation
11 and finance of the state of New York to provide that a single informa-
12 tion return may be filed for purposes of the tax imposed by this chapter
13 and the real estate transfer tax imposed by article thirty-one of the
14 tax law.
15 h. Returns with respect to the conveyance of a one- or two-family
16 dwelling will not be accepted for filing unless accompanied by an affi-
17 davit signed by the grantor and grantee indicating that the premises is
18 equipped with an approved and operational smoke detecting device as
19 provided in article six of subchapter seventeen of chapter one of title
20 twenty-seven of this code.
21 i. When the grantor or grantee of a deed for a building used as resi-
22 dential real property containing up to four family dwelling units is a
23 limited liability company, the joint return shall not be accepted for
24 filing unless it is accompanied by a document which identifies the names
25 and business addresses of all members, managers, and any other author-
26 ized persons, if any, of such limited liability company and the names
27 and business addresses or, if none, the business addresses of all share-
28 holders, directors, officers, members, managers and partners of any
29 limited liability company or other business entity that are to be the
30 members, managers or authorized persons, if any, of such limited liabil-
31 ity company. The identification of such names and addresses shall not be
32 deemed an unwarranted invasion of personal privacy pursuant to article
33 six of the public officers law. If any such member, manager or author-
34 ized person of the limited liability company is itself a limited liabil-
35 ity company or other business entity other than a publicly traded enti-
36 ty, a REIT, an UPREIT, or a mutual fund, the names and addresses of the
37 shareholders, directors, officers, members, managers and partners of the
38 limited liability company or other business entity shall also be
39 disclosed until full disclosure of ultimate ownership by natural persons
40 is achieved. For purposes of this subdivision, the terms "members",
41 "managers", "authorized person", "limited liability company" and "other
42 business entity" shall have the same meaning as those terms are defined
43 in section one hundred two of the limited liability company law.
44 § 11-2106 Exemptions. a. The following shall be exempt from the
45 payment of the tax imposed by this chapter and from filing a return:
46 1. The state of New York, or any of its agencies, instrumentalities,
47 public corporations, including a public corporation created pursuant to
48 agreement or compact with another state or the Dominion of Canada, or
49 political subdivisions;
50 2. The United States of America, and any of its agencies and instru-
51 mentalities, insofar, as they are immune from taxation, provided, howev-
52 er, that the exemption of such governmental bodies or persons shall not
53 relieve a grantee from them of liability for the tax or from filing a
54 return.
55 b. The tax imposed by this chapter shall not apply to any of the
56 following deeds, instruments or transactions:
S. 8578 1137
1 1. A deed, instrument or transaction conveying or transferring real
2 property or an economic interest therein by or to the United Nations or
3 other world-wide international organizations of which the United States
4 of America is a member;
5 2. A deed, instrument or transaction conveying or transferring real
6 property or an economic interest therein by or to any corporation, or
7 association, or trust, or community chest, fund or foundation, organized
8 or operated exclusively for religious, charitable, or educational
9 purposes, or for the prevention of cruelty to children or animals, and
10 no part of the net earnings of which inures to the benefit of any
11 private shareholder or individual and no substantial part of the activ-
12 ities of which is carrying on propaganda, or otherwise attempting to
13 influence legislation; provided, however, that nothing in this paragraph
14 shall include an organization operated for the primary purpose of carry-
15 ing on a trade or business for profit, whether or not all of its profits
16 are payable to one or more organizations described in this paragraph;
17 3. A deed, instrument or transaction conveying or transferring real
18 property or an economic interest therein to any governmental body or
19 person exempt from payment of the tax pursuant to subdivision a of this
20 section;
21 4. A deed delivered pursuant to a contract made prior to May first,
22 nineteen hundred fifty-nine;
23 5. A deed delivered by any governmental body or person exempt from
24 payment of the tax pursuant to subdivision a of this section as a result
25 of a sale at a public auction held in accordance with the provisions of
26 a contract made prior to May first, nineteen hundred fifty-nine;
27 6. A deed or instrument given solely as security for, or a transaction
28 the sole purpose of which is to secure, a debt or obligation or a deed
29 or instrument given, or a transaction entered into, solely for the
30 purpose of returning such security;
31 7. A deed, instrument or transaction conveying or transferring real
32 property or an economic interest therein from a mere agent, dummy, straw
33 man or conduit to his principal or a deed, instrument or transaction
34 conveying or transferring real property or an economic interest therein
35 from the principal to his agent, dummy, straw man or conduit.
36 8. A deed, instrument or transaction conveying or transferring real
37 property or an economic interest therein that effects a mere change of
38 identity or form of ownership or organization to the extent the benefi-
39 cial ownership of such real property or economic interest therein
40 remains the same, other than a conveyance to a cooperative housing
41 corporation of the land and building or buildings comprising the cooper-
42 ative dwelling or dwellings. For purposes of this paragraph, the term
43 "cooperative housing corporation" shall not include a housing company
44 organized and operating pursuant to the provisions of article two, four,
45 five or eleven of the private housing finance law.
46 9. A deed, instrument or transaction conveying or transferring real
47 property or an economic interest therein by or to any housing develop-
48 ment fund company organized pursuant to article eleven of the private
49 housing finance law or to an entity, the controlling interest of which
50 is held by such a company, if at the time of such conveyance or trans-
51 fer, such real property is subject to, or simultaneously with such
52 conveyance or transfer is made subject to, a regulatory agreement with
53 the state of New York, a municipal corporation or any other public
54 corporation created by or pursuant to any law of the state of New York
55 that: encumbers the real property for thirty years or more, requires
56 mutual consent for revocation or amendment, restricts more than fifty
S. 8578 1138
1 percent of the floor area, other than common areas, to residential real
2 property, and restricts at least sixty-six and two-thirds percent of
3 such residential real property to purchase, lease, license or other use
4 by persons of low income and families of low income within the meaning
5 of section two of the private housing finance law; provided, however,
6 that if such regulatory agreement restricts less than one hundred
7 percent of the floor area, other than common areas, to purchase, lease,
8 license or other use by persons of low income and families of low income
9 within the meaning of section two of the private housing finance law,
10 the tax shall apply to the consideration less the product of the consid-
11 eration and a fraction, the numerator of which is the floor area that
12 such regulatory agreement restricts to purchase, lease, license or other
13 use by persons of low income and families of low income within the mean-
14 ing of section two of the private housing finance law and the denomina-
15 tor of which is the entire floor area, minus the floor area of common
16 areas; provided further, that if such real property is made subject to a
17 regulatory agreement that meets the terms of this paragraph within two
18 years of the conveyance or transfer then the commissioner of finance may
19 issue a refund based on the application of this paragraph pursuant to
20 the provisions of section 11-2108 of this chapter, treating the transfer
21 or conveyance as if such real property were subject to such regulatory
22 agreement as of the date of such transfer or conveyance, if, notwith-
23 standing any other time limitation set forth in section 11-2108 of this
24 chapter, application to the commissioner of finance for such refund is
25 made within twelve months of the effective date of such regulatory
26 agreement.
27 c. Notwithstanding any provision of this chapter to the contrary,
28 where stock of a cooperative housing corporation and the appurtenant
29 proprietary leasehold are transferred to such cooperative housing corpo-
30 ration or a wholly owned subsidiary of such housing corporation, or to
31 the holder of a mortgage on the real property of such cooperative hous-
32 ing corporation or a wholly owned subsidiary of such holder of a mort-
33 gage on the real property of such cooperative housing corporation, such
34 cooperative housing corporation or its wholly owned subsidiary, or such
35 mortgage holder or its wholly owned subsidiary, shall not be liable as
36 grantee for the tax determined to be due under this chapter from the
37 grantor in such transfer, provided that such transfer occurred pursuant
38 to, as the result of, or in connection with an action, proceeding, or
39 other procedure to which such cooperative housing corporation is a
40 party, to enforce a lien, security interest or other rights on or in
41 such stock and proprietary leasehold, including but not limited to
42 rights under the proprietary lease. This subdivision shall apply to
43 transfers occurring on or after June sixteenth, nineteen hundred nine-
44 ty-two.
45 § 11-2107 Determination of tax. If a return required by this chapter
46 is not filed, or if a return when filed is incorrect or insufficient,
47 the amount of tax due shall be determined by the commissioner of finance
48 from such information as may be obtainable, including the assessed valu-
49 ation of the real property or interest therein. Notice of such determi-
50 nation shall be given to the person liable for the tax. Such determi-
51 nation shall finally and irrevocably fix the tax unless the person
52 against whom it is assessed, within ninety days after the giving of
53 notice of such determination, or, if the commissioner of finance has
54 established a conciliation procedure pursuant to section 11-124 of the
55 code of the preceding municipality and the taxpayer has requested a
56 conciliation conference in accordance therewith, within ninety days from
S. 8578 1139
1 the mailing of a conciliation decision or the date of the commissioner's
2 confirmation of the discontinuance of the conciliation proceeding, both
3 (1) serves a petition upon the commissioner of finance and (2) files a
4 petition with the tax appeals tribunal for a hearing, or, unless the
5 commissioner of finance of his or her own motion shall redetermine the
6 same. Such hearing and any appeal to the tax appeals tribunal sitting en
7 banc from the decision rendered in such hearing shall be conducted in
8 the manner and subject to the requirements prescribed by the tax appeals
9 tribunal pursuant to sections one hundred sixty-eight through one
10 hundred seventy-two of the charter of the preceding municipality as it
11 existed January first, nineteen hundred ninety-four. After such hearing
12 the tax appeals tribunal shall give notice of its decision to the person
13 against whom the tax is assessed and to the commissioner of finance. A
14 decision of the tax appeals tribunal sitting en banc shall be reviewable
15 for error, illegality or unconstitutionality or any other reason whatso-
16 ever by a proceeding under article seventy-eight of the civil practice
17 law and rules if application therefor is made to the supreme court by
18 the person against whom the tax was assessed within four months after
19 the giving of the notice of such tax appeals tribunal decision. A
20 proceeding under article seventy-eight of the civil practice law and
21 rules shall not be instituted by a taxpayer unless: (a) the amount of
22 any tax sought to be reviewed, with penalties and interest thereon, if
23 any, shall be first deposited with the commissioner of finance and there
24 shall be filed with the commissioner of finance an undertaking, issued
25 by a surety company authorized to transact business in this state and
26 approved by the superintendent of insurance of this state as to solvency
27 and responsibility, in such amount and with such sureties as a justice
28 of the supreme court shall approve, to the effect that if such proceed-
29 ing be dismissed or the tax confirmed, the taxpayer will pay all costs
30 and charges which may accrue in the prosecution of the proceeding; or
31 (b) at the option of the taxpayer such undertaking filed with the
32 commissioner of finance may be in a sum sufficient to cover the taxes,
33 penalties and interest thereon stated in such decision plus the costs
34 and charges which may accrue against it in the prosecution of the
35 proceeding, in which event the taxpayer shall not be required to deposit
36 such taxes, penalties and interest as a condition precedent to the
37 application.
38 § 11-2108 Refunds. a. In the manner provided in this section the
39 commissioner of finance shall refund or credit, without interest, any
40 tax, penalty or interest erroneously, illegally or unconstitutionally
41 collected or paid if application to the commissioner of finance for such
42 refund shall be made within one year from the payment thereof. Whenever
43 a refund is made or denied by the commissioner of finance, the commis-
44 sioner shall state his or her reason therefor and give notice thereof to
45 the taxpayer in writing. Such application may be made by the grantor,
46 grantee or other person who has actually paid the tax. The commissioner
47 of finance may, in lieu of any refund required to be made, allow credit
48 therefor on payments due from the applicant.
49 b. Any determination of the commissioner of finance denying a refund
50 or credit pursuant to subdivision a of this section shall be final and
51 irrevocable unless the applicant for such refund or credit, within nine-
52 ty days from the mailing of notice of such determination, or, if the
53 commissioner of finance has established a conciliation procedure pursu-
54 ant to section 11-124 of the code of the preceding municipality and the
55 applicant has requested a conciliation conference in accordance there-
56 with, within ninety days from the mailing of a conciliation decision or
S. 8578 1140
1 the date of the commissioner's confirmation of the discontinuance of the
2 conciliation proceeding, both (1) serves a petition upon the commission-
3 er of finance and (2) files a petition with the tax appeals tribunal for
4 a hearing. Such petition for a refund or credit made as herein provided
5 shall be deemed an application for a revision of any tax, penalty or
6 interest complained of. Such hearing and any appeal to the tax appeals
7 tribunal sitting en banc from the decision rendered in such hearing
8 shall be conducted in the manner and subject to the requirements
9 prescribed by the tax appeals tribunal pursuant to sections one hundred
10 sixty-eight through one hundred seventy-two of the charter of the
11 preceding municipality as it existed January first, nineteen hundred
12 ninety-four. After such hearing, the tax appeals tribunal shall give
13 notice of its decision to the applicant and the commissioner of finance.
14 The applicant shall be entitled to review such decision of the tax
15 appeals tribunal sitting en banc by a proceeding pursuant to article
16 seventy-eight of the civil practice law and rules, provided such
17 proceeding is instituted within four months after the giving of notice
18 of such decision, and provided, in the case of an application by a
19 taxpayer, that a final determination of tax due was not previously made.
20 Such a proceeding shall not be instituted by a taxpayer unless an under-
21 taking is filed with the commissioner of finance in such amount and with
22 such sureties as a justice of the supreme court shall approve to the
23 effect that if such proceeding be dismissed or the tax confirmed, the
24 taxpayer will pay all costs and charges which may accrue in the prose-
25 cution of such proceeding.
26 c. A person shall not be entitled to a revision, refund or credit
27 under this section of a tax, interest or penalty which had been deter-
28 mined to be due pursuant to the provisions of section 11-2107 of this
29 chapter where he or she has had a hearing or an opportunity for a hear-
30 ing, as provided in said section, or has failed to avail himself or
31 herself of the remedies therein provided. No refund or credit shall be
32 made of a tax, interest or penalty paid after a determination by the
33 commissioner of finance made pursuant to section 11-2107 of this chapter
34 unless it be found that such determination was erroneous, illegal or
35 unconstitutional or otherwise improper, by the tax appeals tribunal
36 after a hearing, or on the commissioner of finance's own motion, or, if
37 such tax appeals tribunal affirms in whole or in part the determination
38 of the commissioner of finance, in a proceeding under article seventy-
39 eight of the civil practice law and rules, pursuant to the provisions of
40 said section, in which event refund or credit without interest shall be
41 made of the tax, interest or penalty found to have been overpaid.
42 § 11-2109 Reserves. In cases where the grantor or grantee has
43 applied for a refund and has instituted a proceeding under article
44 seventy-eight of the civil practice law and rules to review a determi-
45 nation adverse to him or her on his or her application for refund, the
46 comptroller shall set up appropriate reserves to meet any decision
47 adverse to the city.
48 § 11-2110 Remedies exclusive. The remedies provided by sections
49 11-2107 and 11-2108 of this chapter shall be exclusive remedies avail-
50 able to any person for the review of tax liability imposed by this chap-
51 ter; and no determination or proposed determination of tax or determi-
52 nation on any application for refund shall be enjoined or reviewed by an
53 action for declaratory judgment, an action for money had and received or
54 by any action or proceeding other than a proceeding in the nature of a
55 certiorari proceeding under article seventy-eight of the civil practice
56 law and rules; provided, however, that a taxpayer may proceed by declar-
S. 8578 1141
1 atory judgment if he or she institutes suit within thirty days after a
2 deficiency assessment is made and pays the amount of the deficiency
3 assessment to the commissioner of finance prior to the institution of
4 such suit and posts a bond for costs as provided in section 11-2107 of
5 this chapter.
6 § 11-2111 Proceedings to recover tax. a. Whenever any grantor or
7 grantee shall fail to pay any tax, penalty or interest imposed by this
8 chapter as herein provided, the corporation counsel shall, upon the
9 request of the commissioner of finance bring or cause to be brought an
10 action to enforce the payment of the same on behalf of the city of
11 Staten Island in any court of the state of New York or of any other
12 state or of the United States. If, however, the commissioner of finance
13 in his or her discretion believes that any such grantor or grantee
14 subject to the provisions of this chapter is about to cease business,
15 leave the state or remove or dissipate the assets out of which the tax
16 or penalty might be satisfied, and that any such tax or penalty will not
17 be paid when due, such commissioner may declare such tax or penalty to
18 be immediately due and payable and may issue a warrant immediately.
19 b. As an additional or alternate remedy, the commissioner of finance
20 may issue a warrant, directed to the city sheriff commanding him or her
21 to levy upon and sell the real and personal property of the grantor,
22 grantee or other person liable for the tax which may be found within the
23 city, for the payment of the amount thereof, with any penalty and inter-
24 est, and the cost of executing the warrant, and to return such warrant
25 to the commissioner of finance and to pay to him or her the money
26 collected by virtue thereof within sixty days after the receipt of such
27 warrant. The city sheriff shall within five days after the receipt of
28 the warrant file with the county clerk a copy thereof, and thereupon
29 such clerk shall enter in the judgment docket the name of the person
30 mentioned in the warrant and the amount of the tax, penalty and interest
31 for which the warrant is issued and the date when such copy is filed.
32 Thereupon the amount of such warrant so docketed shall become a lien
33 upon the title to and the interest in real and personal property of the
34 person against whom the warrant is issued. The city sheriff shall then
35 proceed upon the warrant in the same manner, and with like effect, as
36 that provided by law in respect to executions issued against property
37 upon judgments of a court of record and for services in executing the
38 warrant he or she shall be entitled to the same fees, which such sheriff
39 may collect in the same manner. In the discretion of the commissioner
40 of finance a warrant of like terms, force and effect may be issued and
41 directed to an officer or employee of the department of finance, and in
42 the execution thereof such officer or employee shall have all the powers
43 conferred by law upon sheriffs, but shall be entitled to no fee or
44 compensation in excess of the actual expenses paid in the performance of
45 such duty. If a warrant is returned not satisfied in full, the commis-
46 sioner of finance may from time to time issue new warrants and shall
47 also have the same remedies to enforce the amount due thereunder as if
48 the city had recovered judgment therefor and execution thereon had been
49 returned unsatisfied.
50 c. The commissioner of finance, if he or she finds that the interests
51 of the city will not thereby be jeopardized, and upon such conditions as
52 the commissioner of finance may require, may release any property from
53 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
54 tions to tax, penalties and interest filed pursuant to subdivision b of
55 this section, and such release or vacating of the warrant may be
56 recorded in the office of any recording officer in which such warrant
S. 8578 1142
1 has been filed. The clerk shall thereupon cancel and discharge as of the
2 original date of docketing the vacated warrant.
3 § 11-2112 General powers of the commissioner of finance. In addition
4 to the powers granted to the commissioner of finance in this chapter, he
5 or she is hereby authorized and empowered:
6 1. To make, adopt and amend rules and regulations appropriate to the
7 carrying out of this chapter and the purposes thereof;
8 2. To extend, for cause shown, the time for filing any return for a
9 period not exceeding thirty days; and to compromise disputed claims in
10 connection with the taxes hereby imposed;
11 3. To request information from the tax commission of the state of New
12 York or the treasury department of the United States relative to any
13 person; and to afford returns, reports and other information to such tax
14 commission or such treasury department relative to any person, any other
15 provision of this chapter to the contrary notwithstanding;
16 4. To delegate his or her functions under this section to a deputy
17 commissioner of finance or any employee or employees of the department
18 of finance;
19 5. To prescribe the methods for determining the consideration and net
20 consideration attributable to that portion of real property located
21 partly within and partly without the city of Staten Island which is
22 located within the city of Staten Island or any interest therein;
23 6. To require any grantor or grantee to keep such records, and for
24 such length of time as may be required for the proper administration of
25 this chapter and to furnish such records to the commissioner of finance
26 upon request;
27 7. To assess, determine, revise and adjust the taxes imposed under
28 this chapter.
29 § 11-2113 Administration of oaths and compelling testimony. a. The
30 commissioner of finance, his or her employees or agents duly designated
31 and authorized by him or her, the tax appeals tribunal and any of its
32 duly designated and authorized employees or agents shall have power to
33 administer oaths and take affidavits in relation to any matter or
34 proceeding in the exercise of their powers and duties under this chap-
35 ter. The commissioner of finance and the tax appeals tribunal shall have
36 power to subpoena and require the attendance of witnesses and the
37 production of books, papers and documents to secure information perti-
38 nent to the performance of the duties of the commissioner or of the tax
39 appeals tribunal under this chapter and of the enforcement of this chap-
40 ter and to examine them in relation thereto, and to issue commissions
41 for the examination of witnesses who are out of the state or unable to
42 attend before such commissioner or the tax appeals tribunal or excused
43 from attendance.
44 b. A justice of the supreme court either in court or at chambers shall
45 have power summarily to enforce by proper proceedings the attendance and
46 testimony of witnesses and the production and examination of books,
47 papers and documents called for by the subpoena of the commissioner of
48 finance or the tax appeals tribunal under this chapter.
49 c. Cross-reference; criminal penalties. For failure to obey subpoenas
50 or for testifying falsely, see section 11-4007 of this title; for
51 supplying false or fraudulent information, see section 11-4009 of this
52 title.
53 d. The officers who serve the summons or subpoena of the commissioner
54 of finance or the tax appeals tribunal and witnesses attending in
55 response thereto shall be entitled to the same fees as are allowed to
56 officers and witnesses in civil cases in courts of record, except as
S. 8578 1143
1 herein otherwise provided. Such officers shall be the city sheriff and
2 his or her duly appointed deputies or any officers or employees of the
3 department of finance or the tax appeals tribunal, designated to serve
4 such process.
5 § 11-2114 Interest and penalties. (a) Interest on underpayments. If
6 any amount of tax is not paid on or before the last date prescribed for
7 payment, without regard to any extension of time granted for payment,
8 interest on such amount at the rate set by the commissioner of finance
9 pursuant to subdivision (g) of this section, or, if no rate is set, at
10 the rate of seven and one-half percent per annum, shall be paid for the
11 period from such last date to the date of payment. In computing the
12 amount of interest to be paid, such interest shall be compounded daily.
13 Interest under this subdivision shall not be paid if the amount thereof
14 is less than one dollar.
15 (b) (1) Failure to file return. (A) In case of failure to file a
16 return under this chapter on or before the prescribed date, determined
17 with regard to any extension of time for filing, unless it is shown that
18 such failure is due to reasonable cause and not due to willful neglect,
19 there shall be added to the amount required to be shown as tax on such
20 return five percent of the amount of such tax if the failure is for not
21 more than one month, with an additional five percent for each additional
22 month or fraction thereof during which such failure continues, not
23 exceeding twenty-five percent in the aggregate.
24 (B) In the case of a failure to file a return of tax within sixty days
25 of the date prescribed for filing of such return, determined with regard
26 to any extension of time for filing, unless it is shown that such fail-
27 ure is due to reasonable cause and not due to willful neglect, the addi-
28 tion to tax under subparagraph (A) of this paragraph shall not be less
29 than the lesser of one hundred dollars or one hundred percent of the
30 amount required to be shown as tax on such return.
31 (C) For purposes of this paragraph, the amount of tax required to be
32 shown on the return shall be reduced by the amount of any part of the
33 tax which is paid on or before the date prescribed for payment of the
34 tax and by the amount of any credit against the tax which may be claimed
35 upon the return.
36 (2) Failure to pay tax shown on return. In case of failure to pay the
37 amount shown as tax on a return required to be filed under this chapter
38 on or before the prescribed date, determined with regard to any exten-
39 sion of time for payment, unless it is shown that such failure is due to
40 reasonable cause and not due to willful neglect, there shall be added to
41 the amount shown as tax on such return one-half of one percent of the
42 amount of such tax if the failure is not for more than one month, with
43 an additional one-half of one percent for each additional month or frac-
44 tion thereof during which such failure continues, not exceeding twenty-
45 five percent in the aggregate. For the purpose of computing the addition
46 for any month the amount of tax shown on the return shall be reduced by
47 the amount of any part of the tax which is paid on or before the begin-
48 ning of such month and by the amount of any credit against the tax which
49 may be claimed upon the return. If the amount of tax required to be
50 shown on a return is less than the amount shown as tax on such return,
51 this paragraph shall be applied by substituting such lower amount.
52 (3) Failure to pay tax required to be shown on return. In case of
53 failure to pay any amount in respect of any tax required to be shown on
54 a return required to be filed under this chapter which is not so shown,
55 including a determination made pursuant to section 11-2107 of this chap-
56 ter, within ten days of the date of a notice and demand therefor, unless
S. 8578 1144
1 it is shown that such failure is due to reasonable cause and not due to
2 willful neglect, there shall be added to the amount of tax stated in
3 such notice and demand one-half of one percent of such tax if the fail-
4 ure is not for more than one month, with an additional one-half of one
5 percent for each additional month or fraction thereof during which such
6 failure continues, not exceeding twenty-five percent in the aggregate.
7 For the purpose of computing the addition for any month, the amount of
8 tax stated in the notice and demand shall be reduced by the amount of
9 any part of the tax which is paid before the beginning of such month.
10 (4) Limitations on additions.
11 (A) With respect to any return, the amount of the addition under para-
12 graph one of this subdivision shall be reduced by the amount of the
13 addition under paragraph two of this subdivision for any month to which
14 an addition applies under both paragraphs one and two of this subdivi-
15 sion. In any case described in subparagraph (B) of paragraph one of this
16 subdivision, the amount of the addition under such paragraph one shall
17 not be reduced below the amount provided in such subparagraph.
18 (B) With respect to any return, the maximum amount of the addition
19 permitted under paragraph three of this subdivision shall be reduced by
20 the amount of the addition under paragraph one of this subdivision,
21 determined without regard to subparagraph (B) of such paragraph one,
22 which is attributable to the tax for which the notice and demand is made
23 and which is not paid within ten days of such notice and demand.
24 (c) Underpayment due to negligence. (1) If any part of an underpayment
25 of tax is due to negligence or intentional disregard of this chapter or
26 any rules or regulations hereunder, but without intent to defraud, there
27 shall be added to the tax a penalty equal to five percent of the under-
28 payment.
29 (2) There shall be added to the tax, in addition to the amount deter-
30 mined under paragraph one of this subdivision, an amount equal to fifty
31 percent of the interest payable under subdivision (a) of this section
32 with respect to the portion of the underpayment described in such para-
33 graph one which is attributable to the negligence or intentional disre-
34 gard referred to in such paragraph one, for the period beginning on the
35 last date prescribed by law for payment of such underpayment, determined
36 without regard to any extension, and ending on the date of the assess-
37 ment of the tax, or, if earlier, the date of the payment of the tax.
38 (d) Underpayment due to fraud. (1) If any part of an underpayment of
39 tax is due to fraud, there shall be added to the tax a penalty equal to
40 fifty percent of the underpayment.
41 (2) There shall be added to the tax, in addition to the penalty deter-
42 mined under paragraph one of this subdivision, an amount equal to fifty
43 percent of the interest payable under subdivision (a) of this section
44 with respect to the portion of the underpayment described in such para-
45 graph one which is attributable to fraud, for the period beginning on
46 the last day prescribed by law for payment of such underpayment, deter-
47 mined without regard to any extension, and ending on the date of the
48 assessment of the tax, or, if earlier, the date of the payment of the
49 tax.
50 (3) The penalty under this subdivision shall be in lieu of any other
51 addition to tax imposed by subdivision (b) or (c) of this section.
52 (e) Additional penalty. Any person who, with fraudulent intent, shall
53 fail to pay any tax imposed by this chapter, or to make, render, sign or
54 certify any return, or to supply any information within the time
55 required by or under this chapter, shall be liable for a penalty of not
56 more than one thousand dollars, in addition to any other amounts
S. 8578 1145
1 required under this chapter to be imposed, assessed and collected by the
2 commissioner of finance. The commissioner of finance shall have the
3 power, in his or her discretion, to waive, reduce or compromise any
4 penalty under this subdivision.
5 (f) The interest and penalties imposed by this section shall be paid
6 and disposed of in the same manner as other revenues from this chapter.
7 Unpaid interest and penalties may be enforced in the same manner as the
8 tax imposed by this chapter.
9 (g)(1) Authority to set interest rates. The commissioner of finance
10 shall set the rate of interest to be paid pursuant to subdivision (a) of
11 this section, but if no such rate of interest is set, such rate shall be
12 deemed to be set at seven and one-half percent per annum. Such rate
13 shall be the rate prescribed in paragraph two of this subdivision but
14 shall not be less than seven and one-half percent per annum. Any such
15 rate set by the commissioner of finance shall apply to taxes, or any
16 portion thereof, which remain or become due on or after the date on
17 which such rate becomes effective and shall apply only with respect to
18 interest computed or computable for periods or portions of periods
19 occurring in the period in which such rate is in effect.
20 (2) General rule. The rate of interest set under this subdivision
21 shall be the sum of (i) the federal short-term rate as provided under
22 paragraph three of this subdivision, plus (ii) seven percentage points.
23 (3) Federal short-term rate. For purposes of this subdivision:
24 (A) The federal short-term rate for any month shall be the federal
25 short-term rate determined by the United States secretary of the treas-
26 ury during such month in accordance with subsection (d) of section
27 twelve hundred seventy-four of the internal revenue code for use in
28 connection with section six thousand six hundred twenty-one of the
29 internal revenue code. Any such rate shall be rounded to the nearest
30 full percent, or, if a multiple of one-half of one percent, such rate
31 shall be increased to the next highest full percent.
32 (B) Period during which rate applies.
33 (i) In general. Except as provided in clause (ii) of this subpara-
34 graph, the federal short-term rate for the first month in each calendar
35 quarter shall apply during the first calendar quarter beginning after
36 such month.
37 (ii) Special rule for the month of September, nineteen hundred eight-
38 y-nine. The federal short-term rate for the month of April, nineteen
39 hundred eighty-nine shall apply with respect to setting the rate of
40 interest for the month of September, nineteen hundred eighty-nine.
41 (4) Publication of interest rate. The commissioner of finance shall
42 cause to be published in the City Record, and give other appropriate
43 general notice of, the interest rate to be set under this subdivision no
44 later than twenty days preceding the first day of the calendar quarter
45 during which such interest rate applies. The setting and publication of
46 such interest rate shall not be included within paragraph (a) of subdi-
47 vision five of section one thousand forty-one of the city charter of the
48 preceding municipality as it existed January first, nineteen hundred
49 ninety-four relating to the definition of a rule.
50 (h) Miscellaneous. (1) The certificate of the commissioner to the
51 effect that a tax has not been paid or that information has not been
52 supplied pursuant to the provisions of this chapter shall be presumptive
53 evidence thereof.
54 (2) Cross-reference: For criminal penalties, see chapter forty of
55 this title.
S. 8578 1146
1 (i) Failure to file information return. If a cooperative housing
2 corporation fails to file an information return required under subdivi-
3 sion g of section 11-2105 of this chapter on or before the prescribed
4 date, determined with regard to any extension of time for filing, unless
5 it is shown that such failure is due to reasonable cause and not due to
6 willful neglect, there shall be imposed on such cooperative housing
7 corporation a penalty of one hundred dollars for each such failure.
8 § 11-2115 Returns to be secret. a. Except in accordance with proper
9 judicial order, or as otherwise provided by law, it shall be unlawful
10 for the commissioner of finance, register or tax appeals tribunal or any
11 officer or employee of the department of finance, register or tax
12 appeals tribunal to divulge or make known in any manner any information
13 contained in or relating to any return provided for by this chapter. The
14 officers charged with the custody of such returns shall not be required
15 to produce any of them or evidence of anything contained in them in any
16 action or proceeding in any court, except on behalf of the commissioner
17 of finance in an action or proceeding under the provisions of this chap-
18 ter, or on behalf of any party to an action or proceeding under the
19 provisions of this chapter when the returns or facts shown thereby are
20 directly involved in such action or proceeding, in either of which
21 events the court may require the production of, and may admit in
22 evidence, so much of said returns or of the facts shown thereby, as are
23 pertinent to the action or proceeding and no more. Nothing in this
24 section shall be construed to prohibit the delivery to a grantor or
25 grantee of a deed or to any subsequent owner of the real property
26 conveyed by such deed or to the duly authorized representative of any of
27 them of a certified copy of any return filed in connection with the tax
28 on such deed; nor to prohibit the delivery of such a certified copy of
29 such return or of any information contained in or relating thereto to
30 the United States of America or any department thereof, the state of New
31 York or any department thereof, the city of Staten Island or any depart-
32 ment thereof provided the same is required for official business; nor to
33 prohibit the inspection for official business of such returns by the
34 register, the corporation counsel or other legal representatives of the
35 city or by the district attorney of Richmond county; nor to prohibit the
36 publication of statistics so classified as to prevent the identification
37 of particular returns or items thereof.
38 b. (1) Any officer or employee of the city who willfully violates the
39 provisions of subdivision a of this section shall be dismissed from
40 office and be incapable of holding any public office in this city for a
41 period of five years thereafter.
42 (2) Cross-reference: For criminal penalties, see chapter forty of
43 this title.
44 c. This section shall be deemed a state statute for purposes of para-
45 graph (a) of subdivision two of section eighty-seven of the public offi-
46 cers law.
47 d. Notwithstanding anything in subdivision a of this section to the
48 contrary, if a taxpayer has petitioned the tax appeals tribunal for
49 administrative review as provided in section one hundred seventy of the
50 charter of the preceding municipality as it existed January first, nine-
51 teen hundred ninety-four, the commissioner of finance shall be author-
52 ized to present to the tribunal any report or return of such taxpayer,
53 or any information contained therein or relating thereto, which may be
54 material or relevant to the proceeding before the tribunal. The tax
55 appeals tribunal shall be authorized to publish a copy or a summary of
56 any decision rendered pursuant to section one hundred seventy-one of the
S. 8578 1147
1 charter of the preceding municipality as it existed January first, nine-
2 teen hundred ninety-four.
3 e. This section shall not apply to any information contained in or
4 relating to a return filed on or after the first day of January, two
5 thousand three with respect to a transaction or transfer occurring on or
6 after that date; provided, however, that this section shall continue to
7 apply to any social security account number contained in any report or
8 return pursuant to this chapter.
9 § 11-2116 Notices and limitations of time. a. Any notice authorized
10 or required under the provisions of this chapter may be given by mailing
11 the same to the person for whom it is intended in a postpaid envelope
12 addressed to such person at the address given in the last return filed
13 by him or her pursuant to the provisions of this chapter in any applica-
14 tion made by him or her, or in any deed or instrument which is the
15 subject of the notice, or, if no return has been filed or application
16 made or address stated in the deed or instrument, then to such address
17 as may be obtainable. The mailing of such notice shall be presumptive
18 evidence of the receipt of the same by the person to whom addressed.
19 Any period of time which is determined according to the provisions of
20 this chapter by the giving of notice shall commence to run from the date
21 of mailing of such notice.
22 b. The provisions of the civil practice law and rules or any other law
23 relative to limitations of time for the enforcement of a civil remedy
24 shall not apply to any proceeding or action taken by the city to levy,
25 appraise, assess, determine or enforce the collection of any tax or
26 penalty provided by this chapter. However, except in the case of a
27 wilfully false or fraudulent return with intent to evade the tax, no
28 assessment of additional tax shall be made after the expiration of more
29 than three years from the date of the filing of a return; provided,
30 however, that where no return has been filed as provided by law the tax
31 may be assessed at any time.
32 c. Where, before the expiration of the period prescribed in this
33 section for the assessment of an additional tax, a taxpayer has
34 consented in writing that such period be extended, the amount of such
35 additional tax due may be determined at any time within such extended
36 period. The period so extended may be further extended by subsequent
37 consents in writing made before the expiration of the extended period.
38 d. Except as otherwise provided in this subdivision, if any return,
39 claim, statement, notice, application, or other document required to be
40 filed, or any payment required to be made, within a prescribed period or
41 on or before a prescribed date under authority of any provision of this
42 chapter is, after such period or such date, delivered by United States
43 mail to the commissioner of finance, the tax appeals tribunal, bureau,
44 office, officer or person with which or with whom such document is
45 required to be filed, or to which or to whom such payment is required to
46 be made, the date of the United States postmark stamped on the envelope
47 shall be deemed to be the date of delivery. This subdivision shall apply
48 only if the postmark date falls within the prescribed period or on or
49 before the prescribed date for the filing of such document, or for
50 making the payment, including any extension granted for such filing or
51 payment, and only if such document or payment was deposited in the mail,
52 postage prepaid, properly addressed to the commissioner of finance, the
53 tax appeals tribunal, bureau, office, officer or person with which or
54 with whom the document is required to be filed or to which or to whom
55 such payment is required to be made. If any document is sent by United
56 States registered mail, such registration shall be prima facie evidence
S. 8578 1148
1 that such document was delivered to the commissioner of finance, the tax
2 appeals tribunal, bureau, office, officer or person to which or to whom
3 addressed, and the date of registration shall be deemed the postmark
4 date. The commissioner of finance and, where relevant, the tax appeals
5 tribunal are authorized to provide by regulation the extent to which the
6 provisions of the preceding sentence with respect to prima facie
7 evidence of delivery and the postmark date shall apply to certified
8 mail. Except as provided in subdivision f of this section, this subdivi-
9 sion shall apply in the case of postmarks not made by the United States
10 postal service only if and to the extent provided by regulation of the
11 commissioner of finance or, where relevant, the tax appeals tribunal.
12 Any return filed electronically shall be deemed to be filed on the date
13 of issuance by the commissioner of finance of a confirmation.
14 e. When the last day prescribed under authority of this chapter,
15 including any extension of time, for performing any act falls on a
16 Saturday, Sunday or legal holiday in the state, the performance of such
17 act shall be considered timely if it is performed on the next succeeding
18 day which is not a Saturday, Sunday or legal holiday.
19 f. (1) Any reference in subdivision d of this section to the United
20 States mail shall be treated as including a reference to any delivery
21 service designated by the secretary of the treasury of the United States
22 pursuant to section seventy-five hundred two of the internal revenue
23 code and any reference in subdivision d of this section to a United
24 States postmark shall be treated as including a reference to any date
25 recorded or marked in the manner described in section seventy-five
26 hundred two of the internal revenue code by a designated delivery
27 service. If the commissioner of finance finds that any delivery service
28 designated by such secretary is inadequate for the needs of the city,
29 the commissioner of finance may withdraw such designation for purposes
30 of this title. The commissioner of finance may also designate additional
31 delivery services meeting the criteria of section seventy-five hundred
32 two of the internal revenue code for purposes of this title, or may
33 withdraw any such designation if the commissioner of finance finds that
34 a delivery service so designated is inadequate for the needs of the
35 city. Any reference in subdivision d of this section to the United
36 States mail shall be treated as including a reference to any delivery
37 service designated by the commissioner of finance and any reference in
38 subdivision d of this section to a United States postmark shall be
39 treated as including a reference to any date recorded or marked in the
40 manner described in section seventy-five hundred two of the internal
41 revenue code by a delivery service designated by the commissioner of
42 finance, provided, however, any withdrawal of designation or additional
43 designation by the commissioner of finance shall not be effective for
44 purposes of service upon the tax appeals tribunal, unless and until such
45 withdrawal of designation or additional designation is ratified by the
46 president of the tax appeals tribunal.
47 (2) Any equivalent of registered or certified mail designated by the
48 United States secretary of the treasury, or as may be designated by the
49 commissioner of finance pursuant to the same criteria used by such
50 secretary for such designations pursuant to section seventy-five hundred
51 two of the internal revenue code, shall be included within the meaning
52 of registered or certified mail as used in subdivision d of this
53 section. If the commissioner of finance finds that any equivalent of
54 registered or certified mail designated by such secretary or the commis-
55 sioner of finance is inadequate for the needs of the city, the commis-
56 sioner of finance may withdraw such designation for purposes of this
S. 8578 1149
1 title, provided, however, any withdrawal of designation or additional
2 designation by the commissioner of finance shall not be effective for
3 purposes of service upon the tax appeals tribunal, unless and until such
4 withdrawal of designation or additional designation is ratified by the
5 president of the tax appeals tribunal.
6 § 11-2117 Construction and enforcement. This chapter shall be
7 construed and enforced in conformity with chapter ninety-three of the
8 laws of nineteen hundred sixty-five, as amended.
9 § 11-2118 Disposition of revenues. Except as otherwise provided, all
10 revenues resulting from the imposition of the tax under this chapter
11 shall be paid into the treasury of the city and shall be credited to and
12 deposited in the general fund of the city. Except as otherwise
13 provided, no part of such revenues may be expended unless appropriated
14 in the annual budget of the city.
15 § 11-2119 Foreclosure proceedings. Where the conveyance consists of a
16 transfer of property made as a result of an order of the court in a
17 foreclosure proceeding ordering the sale of such property, the referee
18 or sheriff effectuating the transfer shall not be liable for any inter-
19 est or penalties authorized by this chapter or chapter forty of this
20 title.
21 CHAPTER 22
22 TAX ON OWNERS OF MOTOR VEHICLES
23 § 11-2201 Definitions. When used in this chapter, the following terms
24 shall mean and include:
25 1. "City". The city of Staten Island.
26 2. "Commissioner of finance". The commissioner of finance of the city.
27 3. "Highway". The entire width between the boundary lines of every way
28 publicly maintained when any part thereof is open to the use of the
29 public for purposes of vehicular travel.
30 4. "Individual resident". One or more natural persons other than a
31 firm, copartnership, trustee or trustees conducting a business or asso-
32 ciation who, or one of whom, owns a motor vehicle registered or required
33 to be registered pursuant to section four hundred one of the vehicle and
34 traffic law, the registration fees for which are provided for by subdi-
35 vision six of such section, who, at the time he or she makes application
36 for registration or renewal thereof of such motor vehicle, or such
37 application is made on his or her behalf: (a) is domiciled in the city,
38 unless he or she maintains no permanent place of abode in the city,
39 maintains a permanent place of abode elsewhere, and during the period of
40 one year next preceding the date upon which such application is made,
41 spent in the aggregate not more than thirty days in the city; or (b) is
42 not domiciled in the city but maintains a permanent place of abode in
43 the city and, during the period of one year next preceding the date upon
44 which such application is made, spent in the aggregate more than one
45 hundred eighty-three days in the city, unless such individual is in the
46 armed forces of the United States.
47 5. "Motor vehicle". Every vehicle, except electrically-driven invalid
48 chairs being operated or driven by an invalid, operated or driven upon a
49 public highway by any power, other than muscular power, which includes
50 electric power obtained from overhead trolley wires, except vehicles
51 which run only upon rails or tracks.
52 6. "Other resident". Every firm, copartnership, trustee or trustees
53 conducting a business or association or a corporation, who or which
54 regularly keeps, stores, garages or maintains within the city a motor
S. 8578 1150
1 vehicle owned by it which, at the time it makes application for regis-
2 tration or renewal of registration thereof, is registered or required to
3 be registered pursuant to subdivision six of section four hundred one of
4 the vehicle and traffic law.
5 7. "Person". Unless otherwise indicated, an individual, partnership,
6 society, association, joint-stock company, corporation, estate, receiv-
7 er, trustee, assignee, referee or any other person acting in a fiduciary
8 or representative capacity, whether appointed by a court or otherwise,
9 and any other form of unincorporated enterprise.
10 8. "Owner". A person, other than a lien holder, having the property in
11 or title to a vehicle. The term includes a person entitled to the use
12 and possession of a vehicle subject to a security interest in another
13 person.
14 9. "Vehicle". Every device in, upon or by which any person or property
15 is or may be transported or drawn upon a highway, except devices moved
16 by human power or used exclusively upon stationary rails or tracks.
17 10. "Leased or rented passenger motor vehicles". Any motor vehicle
18 owned by any person engaged in the business of renting or leasing motor
19 vehicles to be operated on the public highways for carrying passengers
20 registered or required to be registered pursuant to any provision of
21 section four hundred one of the vehicle and traffic law, which vehicle
22 at the time when application is made for registration, re-registration
23 or renewal thereof is regularly kept, stored, garaged or maintained in
24 the city, including such vehicles which have been rented and leased by
25 the owner and are in possession of lessees when such application for
26 registration, re-registration or renewal is made.
27 11. "Tax appeals tribunal." The tax appeals tribunal established by
28 section one hundred sixty-eight of the charter of the preceding munici-
29 pality as it existed January first, nineteen hundred ninety-four.
30 § 11-2202 Imposition of tax. Notwithstanding the provisions of
31 section four hundred of the vehicle and traffic law and of subdivision
32 ten of section four hundred one of the vehicle and traffic law to the
33 contrary, a tax of fifteen dollars per annum is hereby imposed:
34 1. With respect to each motor vehicle registered or required to be
35 registered pursuant to subdivision six of section four hundred one of
36 the vehicle and traffic law:
37 a. Upon each individual resident for each such motor vehicle regis-
38 tered or for which registration is renewed, or required to be registered
39 or renewed by him or her; and
40 b. Upon each other resident of each such motor vehicle regularly
41 kept, stored, garaged or maintained in the city and registered or
42 required to be registered or renewed by such other resident; and
43 2. With respect to each leased or rented passenger motor vehicle,
44 upon the owner thereof.
45 § 11-2203 Exemptions. The tax imposed by this chapter shall not be
46 imposed upon:
47 (1) owners of motor vehicles, the registration fees for which are or
48 may be prescribed, governed or established by subdivisions seven, except
49 for leased or rented passenger vehicles, eight, twelve, thirteen,
50 sixteen of section four hundred one, articles fifteen and sixteen, or
51 section four hundred twenty of the vehicle and traffic law;
52 (2) any owner to whom the provisions of the vehicle and traffic law
53 relative to registration and equipment of motor vehicles are made inap-
54 plicable by the provisions of article three of such law, for the period
55 of such inapplicability;
S. 8578 1151
1 (3) the state of New York, or any of its agencies, instrumentalities,
2 public corporations, including a public corporation created pursuant to
3 agreement or compact with another state or the Dominion of Canada, or
4 political subdivision;
5 (4) the United States of America, and any of its agencies and instru-
6 mentalities insofar as it is immune from taxation;
7 (5) the United Nations or other international organizations of which
8 the United States of America is a member;
9 (6) any corporation, or association, or trust, or community chest,
10 fund or foundation, organized and operated exclusively for religious,
11 charitable, or educational purposes, or for the prevention of cruelty to
12 children or animals, and no part of the net earnings of which inures to
13 the benefit of any private shareholder or individual and no substantial
14 part of the activities of which is carrying on propaganda, or otherwise
15 attempting to influence legislation; provided, however, that nothing in
16 this subdivision shall include an organization operated for the primary
17 purpose of carrying on a trade or business for profit, whether or not
18 all of its profits are payable to one or more organizations described in
19 this subdivision.
20 § 11-2204 Payment of tax and evidence of tax payment. Every owner of
21 a motor vehicle subject to tax under this chapter shall pay the tax
22 thereon to the commissioner of motor vehicles of the state of New York
23 on or before the date upon which he or she registers or renews his or
24 her registration thereof or is required to register or renew his or her
25 registration thereof pursuant to section four hundred one of the vehicle
26 and traffic law.
27 Notwithstanding the provisions of section four hundred of the vehicle
28 and traffic law to the contrary, the payment of such tax shall be a
29 condition precedent to the registration or renewal thereof of such motor
30 vehicle and to the issuance of any certificate of registration and
31 plates or removable tag specified in subdivision three of section four
32 hundred one and in sections four hundred three and four hundred four of
33 the vehicle and traffic law, and no such certificate of registration,
34 plates or tag shall be issued unless such tax has been paid. The
35 commissioner of motor vehicles shall not issue a registration certif-
36 icate for any motor vehicle for which the registrant's address is with-
37 in any such city, except upon proof, in a form approved by the commis-
38 sioner of motor vehicles, that such tax has been paid, or is not due,
39 with respect to such motor vehicle. The commissioner of motor vehicles,
40 upon the payment of such tax or upon the application of any person
41 exempt therefrom, shall furnish to each taxpayer paying the tax a
42 receipt for such tax and to each such taxpayer or exempt person a state-
43 ment, document or other form approved by the commissioner of motor vehi-
44 cles, showing that such tax has been paid or is not due, with respect to
45 such motor vehicle.
46 § 11-2205 Returns. a. At the time the payment of the tax imposed by
47 this chapter becomes due, every person subject to tax under this chapter
48 shall file a return with the commissioner of motor vehicles in form and
49 containing such information as may be prescribed by such commissioner of
50 motor vehicles. The taxpayer's application for registration or the
51 renewal of registration shall constitute the return required under this
52 chapter, unless the commissioner of motor vehicles, by regulation, shall
53 otherwise provide.
54 b. Returns shall be preserved for three years and thereafter until
55 the commissioner of motor vehicles permits them to be destroyed.
S. 8578 1152
1 c. The commissioner of motor vehicles may require amended returns or
2 certificates of facts to be filed within twenty days after notice and to
3 contain the information specified in the notice. Any such certificate
4 shall be deemed to be part of the return required to be filed.
5 d. If a return required by this chapter is not filed or if a return
6 when filed is incorrect or insufficient on its face the commissioner of
7 motor vehicles or the commissioner of finance if designated as his or
8 her agent shall take the necessary steps to enforce the filing of such a
9 return or of a corrected return.
10 § 11-2206 Determination of tax. If a return required by this chapter
11 is not filed or if a return when filed is incorrect or insufficient, or
12 if a tax or any part thereof due pursuant to this chapter be not paid
13 when required, the amount of tax due shall be determined by the commis-
14 sioner of motor vehicles or by the commissioner of finance if designated
15 as his or her agent, from such information as may be obtainable, includ-
16 ing motor vehicle registration with the department of motor vehicles of
17 the state of New York or other factors. Notice of such determination
18 shall be given to the person liable for the tax. Such a determination by
19 the commissioner of motor vehicles shall finally and irrevocably fix the
20 tax unless the person against whom it is assessed, within ninety days
21 after the giving of notice of such determination, shall apply to the
22 commissioner of motor vehicles for a hearing, or unless such commission-
23 er of his or her own motion shall redetermine the same. If the commis-
24 sioner of finance is designated as the agent of the commissioner of
25 motor vehicles, such a determination by the commissioner of finance
26 shall finally and irrevocably fix the tax unless the person against whom
27 it is assessed, within ninety days after the giving of such determi-
28 nation, or, if the commissioner of finance has established a concil-
29 iation procedure pursuant to section 11-124 of the code of the preceding
30 municipality and the taxpayer has requested a conciliation conference in
31 accordance therewith, within ninety days from the mailing of a concil-
32 iation decision or the date of the commissioner's confirmation of the
33 discontinuance of the conciliation proceeding, both (1) serves a peti-
34 tion upon the commissioner of finance and (2) applies to the tax appeals
35 tribunal for a hearing by filing a petition, or unless the commissioner
36 of finance of his or her own motion shall redetermine the same. A hear-
37 ing following a petition to the tax appeals tribunal and any appeal to
38 the tax appeals tribunal sitting en banc from the decision rendered in
39 such hearing shall be conducted in the manner and subject to the
40 requirements prescribed by the tax appeals tribunal pursuant to sections
41 one hundred sixty-eight through one hundred seventy-two of the charter
42 of the preceding municipality as it existed January first, nineteen
43 hundred ninety-four. After such hearing by the commissioner of motor
44 vehicles or the tax appeals tribunal, the commissioner of motor vehi-
45 cles, if he or she holds the hearing, or the tax appeals tribunal if the
46 tax appeals tribunal holds the hearing, shall give notice of the deter-
47 mination or decision to the person against whom the tax is assessed and
48 in the case of a tax appeals tribunal decision, to the commissioner of
49 finance. Such determination by the commissioner of motor vehicles, or a
50 decision of the tax appeals tribunal sitting en banc shall be reviewable
51 for error, illegality or unconstitutionality or any other reason whatso-
52 ever by a proceeding under article seventy-eight of the civil practice
53 law and rules if application therefor is made to the supreme court by
54 the person against whom the tax was assessed within four months after
55 the giving of the notice of such determination or tax appeals tribunal
56 decision. A proceeding under article seventy-eight of the civil prac-
S. 8578 1153
1 tice law and rules shall not be instituted by a taxpayer unless (a) the
2 amount of any tax sought to be reviewed, with penalties and interest
3 thereon, if any, shall be first deposited with the commissioner of motor
4 vehicles and there shall be filed with the commissioner of motor vehi-
5 cles an undertaking, issued by a surety company authorized to transact
6 business in this state and approved by the superintendent of insurance
7 of this state as to solvency and responsibility, in such amount as a
8 justice of the supreme court shall approve, to the effect that if such
9 proceeding be dismissed or the tax confirmed, the taxpayer will pay all
10 costs and charges which may accrue in the prosecution of the proceeding;
11 or (b) at the option of the taxpayer such undertaking filed with the
12 commissioner of motor vehicles may be in a sum sufficient to cover the
13 taxes, penalties and interest thereon stated in such determination or
14 decision, plus the costs and charges which may accrue against it in the
15 prosecution of the proceeding, in which event the taxpayer shall not be
16 required to deposit such taxes, penalties and interest as a condition
17 precedent to the application.
18 § 11-2207 Refunds for certain unused registrations. Whenever any fee
19 or portion of a fee paid for the registration of a motor vehicle under
20 the provisions of the vehicle and traffic law is refunded pursuant to
21 the provisions of subdivision one of section four hundred twenty-eight
22 of the vehicle and traffic law, the amount of any tax paid pursuant to
23 this chapter upon such registration shall also be refunded by the
24 commissioner.
25 § 11-2208 Refunds. a. In the manner provided in this section the
26 commissioner of motor vehicles shall refund or credit, without interest,
27 any tax, penalty or interest erroneously, illegally or unconstitu-
28 tionally collected or paid if application for such refund shall be made
29 within one year from the payment thereof to the commissioner of motor
30 vehicles or to the commissioner of finance if designated as his or her
31 agent. Whenever a refund is made or denied, the reasons therefor shall
32 be stated in writing by the commissioner of motor vehicles or by the
33 commissioner of finance, as the case may be, who in lieu of any refund,
34 may allow credit therefor on payments due from the applicant.
35 b. (1) If the commissioner of motor vehicles has not designated the
36 commissioner of finance as his or her agent, application for a refund or
37 credit made as provided under this section shall be deemed an applica-
38 tion for a revision of any tax, penalty or interest complained of and
39 the commissioner of motor vehicles shall hold a hearing and receive
40 evidence with respect thereto. After such hearing, the commissioner of
41 motor vehicles shall give notice of the determination of such applica-
42 tion to the applicant who shall be entitled to review such determination
43 by a proceeding pursuant to article seventy-eight of the civil practice
44 law and rules, provided such proceeding is instituted within four months
45 after the giving of notice of such determination, and provided that a
46 final determination of tax due was not previously made. Such a proceed-
47 ing shall not be instituted unless an undertaking is filed with the
48 commissioner of motor vehicles in such amount and with such sureties as
49 a justice of the supreme court shall approve, to the effect that if such
50 proceeding be dismissed or the tax confirmed, the petitioner will pay
51 all costs and charges which may accrue in the prosecution of such
52 proceeding.
53 (2) If the commissioner of motor vehicles has designated the commis-
54 sioner of finance as his or her agent, a determination of the commis-
55 sioner of finance denying a refund or credit pursuant to subdivision a
56 of this section shall be final and irrevocable unless the applicant for
S. 8578 1154
1 such refund or credit, within ninety days from the mailing of notice of
2 such determination, or, if the commissioner of finance has established a
3 conciliation procedure pursuant to section 11-124 of the code of the
4 preceding municipality and the applicant has requested a conciliation
5 conference in accordance therewith, within ninety days from the mailing
6 of a conciliation decision or the date of the commissioner's confirma-
7 tion of the discontinuance of the conciliation proceeding, both (1)
8 serves a petition upon the commissioner of finance and (2) files a peti-
9 tion with the tax appeals tribunal for a hearing. Such petition for a
10 refund or credit, made as provided under this section, shall be deemed
11 an application for a revision of any tax, penalty or interest complained
12 of. Such hearing and any appeal to the tax appeals tribunal sitting en
13 banc from the decision rendered in such hearing shall be conducted in
14 the manner and subject to the requirements prescribed by the tax appeals
15 tribunal pursuant to sections one hundred sixty-eight through one
16 hundred seventy-two of the charter of the preceding municipality as it
17 existed January first, nineteen hundred ninety-four. After such hearing,
18 the tax appeals tribunal shall give notice of its decision to the appli-
19 cant and to the commissioner of finance. The applicant shall be entitled
20 to institute a proceeding pursuant to article seventy-eight of the civil
21 practice law and rules to review a decision of the tax appeals tribunal
22 sitting en banc if application to the supreme court be made therefor
23 within four months after the giving of notice of such decision, and
24 provided, in the case of an application by a taxpayer, that a final
25 determination of tax due was not previously made. Such a proceeding
26 shall not be instituted by a taxpayer unless an undertaking shall first
27 be filed with the commissioner of motor vehicles, in such amount and
28 with such sureties as a justice of the supreme court shall approve, to
29 the effect that if such proceeding be dismissed or the tax confirmed,
30 the taxpayer will pay all costs and charges which may accrue in the
31 prosecution of such proceeding.
32 c. A person shall not be entitled to a revision, refund or credit
33 under this section of a tax, interest or penalty which has been deter-
34 mined to be due pursuant to the provisions of section 11-2206 of this
35 chapter where he or she has had a hearing or an opportunity for a hear-
36 ing, as provided in such section, or has failed to avail himself or
37 herself of the remedies provided in such section. No refund or credit
38 shall be made of a tax, interest or penalty paid after a determination
39 made pursuant to section 11-2206 of this chapter, unless it be found
40 that such determination was erroneous, illegal or unconstitutional or
41 otherwise improper after a hearing, or on his or her own motion, by the
42 commissioner of motor vehicles or after a hearing by the tax appeals
43 tribunal, or on his or her own motion by the commissioner of finance, as
44 the case may be, or in a proceeding under article seventy-eight of the
45 civil practice law and rules, pursuant to the provisions of said
46 section, in which event refund or credit without interest shall be made
47 of the tax, interest or penalty found to have been overpaid.
48 § 11-2209 Reserves. In cases where a taxpayer has applied for a
49 refund and has instituted a proceeding under article seventy-eight of
50 the civil practice law and rules to review a determination adverse to
51 such taxpayer on his or her application for refund, the commissioner of
52 motor vehicles shall set up appropriate reserves to meet any decision
53 adverse to the city.
54 § 11-2210 Remedies exclusive. The remedies provided by sections
55 11-2206 and 11-2208 of this chapter shall be the exclusive remedies
56 available to any person for the review of tax liability imposed by this
S. 8578 1155
1 chapter; and no determination or proposed determination of tax or deter-
2 mination on any application for refund by the commissioner of motor
3 vehicles or by the commissioner of finance, nor any decision by the tax
4 appeals tribunal or any of its administrative law judges, shall be
5 enjoined or reviewed by an action for declaratory judgment, an action
6 for money had and received or by any action or proceeding other than, in
7 the case of a final determination by the commissioner of motor vehicles
8 or a decision by the tax appeals tribunal sitting en banc, a proceeding
9 in the nature of a certiorari proceeding under article seventy-eight of
10 the civil practice law and rules; provided, however, that a taxpayer may
11 proceed by declaratory judgment if he or she institutes suit within
12 thirty days after a deficiency assessment is made and pays the amount of
13 the deficiency assessment to the commissioner of motor vehicles prior to
14 the institution of such suit and posts a bond for costs as provided in
15 section 11-2206 of this chapter.
16 § 11-2211 Proceedings to recover tax. a. Whenever any person shall
17 fail to pay any tax, penalty or interest imposed by this chapter, the
18 corporation counsel, upon the request of the commissioner of motor vehi-
19 cles or of the commissioner of finance if designated as his or her
20 agent, shall bring or cause to be brought an action to enforce the
21 payment of the same on behalf of the city of Staten Island in any court
22 of the state of New York or of any other state of the United States.
23 However, if in his or her discretion the commissioner of motor vehicles,
24 or the commissioner of finance if designated as his or her agent,
25 believes that any such person subject to the provisions of this chapter
26 is about to cease business, leave the state or remove or dissipate the
27 assets out of which the tax or penalty might be satisfied, and that any
28 such tax or penalty will not be paid when due, he or she may declare
29 such tax or penalty to be immediately due and payable and may issue a
30 warrant immediately.
31 b. As an additional or alternate remedy, the commissioner of motor
32 vehicles, or the commissioner of finance if designated as his or her
33 agent, may issue a warrant, directed to the city sheriff commanding him
34 or her to levy upon and sell the real and personal property of the
35 person liable for the tax which may be found within the city, for the
36 payment of the amount thereof, with any penalty and interest, and the
37 cost of executing the warrant, and to return such warrant to the person
38 who issued it and to pay to him or her the money collected by virtue
39 thereof within sixty days after the receipt of such warrant. The city
40 sheriff shall within five days after the receipt of the warrant file
41 with the county clerk a copy thereof, and thereupon such clerk shall
42 enter in the judgment docket the name of the person mentioned in the
43 warrant and the amount of the tax, penalty and interest for which the
44 warrant is issued and the date when such copy is filed. Thereupon the
45 amount of such warrant so docketed shall become a lien upon the title to
46 and the interest in real and personal property of the person against
47 whom the warrant is issued. The city sheriff shall then proceed upon
48 the warrant in the same manner, and with like effect, as that provided
49 by law in respect to executions issued against property upon judgments
50 of a court of record and for services in executing the warrant such
51 sheriff shall be entitled to the same fees, which he or she may collect
52 in the same manner. In the discretion of the commissioner of motor
53 vehicles, or of the commissioner of finance if designated as his or her
54 agent, a warrant of like terms, force and effect may be issued and
55 directed to an officer or employee of the department of finance of the
56 city, and in the execution thereof such officer or employee shall have
S. 8578 1156
1 all the powers conferred by law upon sheriffs, but shall be entitled to
2 no fee or compensation in excess of the actual expenses paid in the
3 performance of such duty. If a warrant is returned not satisfied in
4 full, the commissioner of motor vehicles or the commissioner of finance,
5 as the case may be, may from time to time issue new warrants and shall
6 also have the same remedies to enforce the amount due thereunder as if
7 he or she had recovered judgment therefor and execution thereon had been
8 returned unsatisfied.
9 c. The commissioner of finance, if he or she finds that the interests
10 of the city will not thereby be jeopardized, and upon such conditions as
11 the commissioner of finance may require, may release any property from
12 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
13 tions to tax, penalties and interest filed pursuant to subdivision b of
14 this section, and such release or vacating of the warrant may be
15 recorded in the office of any recording officer in which such warrant
16 has been filed. The clerk shall thereupon cancel and discharge as of the
17 original date of docketing the vacated warrant.
18 § 11-2212 General powers of the commissioner of motor vehicles. In
19 addition to the powers granted to the commissioner of motor vehicles in
20 this chapter, he or she is hereby authorized and empowered:
21 1. To make, adopt and amend rules and regulations appropriate to the
22 carrying out of this chapter and the purposes thereof;
23 2. For cause shown, to remit penalties; and to compromise disputed
24 claims in connection with the taxes imposed under this chapter;
25 3. To request information concerning motor vehicles and persons
26 subject to the provisions of this chapter from the department of motor
27 vehicles of any other state or the treasury department of the United
28 States, or any city or county of the state of New York; and to afford
29 such information to such other state, treasury department, city or coun-
30 ty, any provision of this chapter to the contrary notwithstanding;
31 4. To delegate his or her functions under this section to a deputy
32 commissioner in the department of motor vehicles or any employee or
33 employees of his or her department or to any county clerk or other offi-
34 cer who acts as the agent of such commissioner in the registration of
35 motor vehicles;
36 5. To prescribe methods for determining the tax;
37 6. To require all persons owning motor vehicles subject to tax to
38 keep such records as he or she may prescribe and to furnish such infor-
39 mation upon his or her request;
40 7. To request the police department of the city to assist in the
41 enforcement of the provisions of this chapter.
42 § 11-2213 Administration of oaths and compelling testimony. a. The
43 commissioner of motor vehicles or his or her employees or agents duly
44 designated and authorized by such commissioner, and the tax appeals
45 tribunal, shall have power to administer oaths and take affidavits in
46 relation to any matter or proceeding in the exercise of the powers and
47 duties under this chapter. The commissioner of motor vehicles, or the
48 commissioner of finance if designated as his or her agent or the tax
49 appeals tribunal, shall have the power to subpoena and require the
50 attendance of witnesses and the production of books, papers and docu-
51 ments to secure information pertinent to the performance of the duties
52 of the commissioner of motor vehicles, the commissioner of finance or
53 the tax appeals tribunal pursuant to this chapter and of the enforcement
54 of this chapter and to examine them in relation thereto, and to issue
55 commissions for the examination of witnesses who are out of the state or
S. 8578 1157
1 unable to attend before him or her or the tax appeals tribunal or
2 excused from attendance.
3 b. A justice of the supreme court either in court or at chambers shall
4 have power summarily to enforce by proper proceedings the attendance and
5 testimony of witnesses and production and examination of books, papers
6 and documents called for by the subpoena of the commissioner of motor
7 vehicles, or, if the commissioner of finance is designated as his or her
8 agent under this chapter, of the commissioner of finance and the tax
9 appeals tribunal.
10 c. Cross-reference; criminal penalties. For failure to obey subpoenas
11 or for testifying falsely, see section 11-4007 of this title; for
12 supplying false or fraudulent information, see section 11-4009 of this
13 title.
14 d. The officers who serve the summons or subpoena of the commissioner
15 of motor vehicles, or the commissioner of finance if designated as his
16 or her agent, or the tax appeals tribunal if the commissioner of finance
17 is designated as the agent of the commissioner of motor vehicles, and
18 witnesses attending in response thereto shall be entitled to the same
19 fees as are allowed to officers and witnesses in civil cases in courts
20 of record, except as otherwise provided in this section. Such officers
21 shall be the city sheriff and his or her duly appointed deputies, or any
22 officers or employees of the department of motor vehicles designated by
23 the commissioner of motor vehicles to serve such process or any officers
24 or employees of the department of finance of the city designated by the
25 commissioner of finance to serve such process or any officers or employ-
26 ees of the tax appeals tribunal designated to serve such process.
27 § 11-2214 Penalties and interest. a. Any person failing to file a
28 return or to pay any tax or any portion thereof within the time required
29 by this chapter shall be subject to a penalty of five times the amount
30 of the tax due, plus interest of five percent of such tax for each month
31 of delay or fraction thereof, but the commissioner of motor vehicles, or
32 the commissioner of finance if designated as his or her agent, if satis-
33 fied that the delay was excusable, may remit all or any part of such
34 penalty, but not interest at the rate of six percent per year. Penal-
35 ties and interest shall be paid and disposed of in the same manner as
36 other revenues under this chapter. Unpaid penalties and interest may be
37 enforced in the same manner as the tax imposed by this chapter.
38 b. The certificate of the commissioner of motor vehicles or of the
39 commissioner of finance if designated as his or her agent to the effect
40 that a tax has not been paid, or that a return required by this chapter
41 has not been filed, or that information has not been supplied pursuant
42 to the provisions of this chapter shall be presumptive evidence thereof.
43 c. Cross-reference: For criminal penalties, see chapter forty of this
44 title.
45 § 11-2215 Returns to be secret. a. Except in accordance with proper
46 judicial order or as otherwise provided by law, it shall be unlawful for
47 the commissioner of motor vehicles, any officer or employee of the
48 department of motor vehicles, the commissioner of finance, any officer
49 or employee of the department of finance, the tax appeals tribunal, any
50 commissioner or employee of such tribunal, any agent of the commissioner
51 of motor vehicles, or any person who, pursuant to this section, is
52 permitted to inspect any return or to whom a copy, an abstract or
53 portion of any return is furnished, or to whom any information contained
54 in any return is furnished to divulge or make known in any manner any
55 information contained in or relating to any return provided for by this
56 chapter. The officers charged with the custody of such returns shall
S. 8578 1158
1 not be required to produce any of them or evidence of anything contained
2 in them in any action or proceeding in any court, except on behalf of
3 the commissioner of motor vehicles or the commissioner of finance in an
4 action or proceeding under the provisions of this chapter, or on behalf
5 of any party to an action or proceeding under the provisions of this
6 chapter when the returns or facts shown thereby are directly involved in
7 such action or proceeding, in either of which events the court may
8 require the production of, and may admit in evidence, so much of said
9 returns or of the facts shown thereby, as are pertinent to the action or
10 proceeding and no more. The commissioner of motor vehicles may, never-
11 theless, publish a copy or a summary of any determination or decision
12 rendered after a formal hearing held pursuant to section 11-2206 or
13 11-2208 of this chapter. Nothing under this section shall be construed
14 to prohibit the delivery to a person or his or her duly authorized
15 representative of a certified copy of any return filed by him or her
16 pursuant to this chapter, or of the receipt, document or other form
17 issued pursuant to section 11-2204 of this chapter, or a duplicate copy
18 thereof; nor to prohibit the delivery of such a certified copy of such
19 return or of any information contained in or relating thereto, to the
20 United States of America or any department thereof, the state of New
21 York or any department thereof, the city of Staten Island or any depart-
22 ment thereof provided the same is required for official business; nor to
23 prohibit the inspection for official business of such returns by the
24 corporation counsel or other legal representatives of the city or by the
25 district attorney of Richmond county; nor to prohibit the publication of
26 statistics so classified as to prevent the identification of particular
27 returns or items thereof.
28 b. (1) Any officer or employee of the state of New York or the city
29 who willfully violates the provisions of subdivision a of this section
30 shall be dismissed from office and be incapable of holding any public
31 office in the state of New York or this city for a period of five years
32 thereafter.
33 (2) Cross-reference: For criminal penalties, see chapter forty of this
34 title.
35 c. This section shall be deemed a state statute for purposes of para-
36 graph (a) of subdivision two of section eighty-seven of the public offi-
37 cers law.
38 d. Notwithstanding anything in subdivision a of this section to the
39 contrary, if a taxpayer has petitioned the tax appeals tribunal for
40 administrative review as provided in section one hundred seventy of the
41 charter of the preceding municipality as it existed January first, nine-
42 teen hundred ninety-four, the commissioner of finance shall be author-
43 ized to present to the tax appeals tribunal any report or return of such
44 taxpayer, or any information contained therein or relating thereto,
45 which may be material or relevant to the proceeding before the tax
46 appeals tribunal. The tax appeals tribunal shall be authorized to
47 publish a copy or a summary of any decision rendered pursuant to section
48 one hundred seventy-one of the charter of the preceding municipality as
49 it existed January first, nineteen hundred ninety-four.
50 § 11-2216 Notices and limitations of time. a. Any notice authorized or
51 required under the provisions of this chapter may be given by mailing
52 the same to the person for whom it is intended in a postpaid envelope
53 addressed to such person at the address given in the last return filed
54 by him or her pursuant to the provisions of this chapter, in any appli-
55 cation made by him or her, or in any application for registration made
56 by him or her pursuant to section four hundred one of the vehicle and
S. 8578 1159
1 traffic law or, if no return has been filed or application made, then to
2 such address as may be obtainable. The mailing of such notice shall be
3 presumptive evidence of the receipt of the same by the person to whom
4 addressed. Any period of time which is determined according to the
5 provisions of this chapter by the giving of notice shall commence to run
6 from the date of mailing of such notice.
7 b. The provisions of the civil practice law and rules or any other law
8 relative to limitations of time for the enforcement of a civil remedy
9 shall not apply to any proceeding or action taken by the commissioner of
10 motor vehicles, or the commissioner of finance if designated as his or
11 her agent, to levy, appraise, assess, determine or enforce the
12 collection of any tax or penalty provided by this chapter. However,
13 except in the case of a wilfully false or fraudulent return with intent
14 to evade the tax, no assessment of additional tax shall be made after
15 the expiration of more than three years from the date of the filing of a
16 return; provided, however, that where no return has been filed as
17 provided by law the tax may be assessed at any time.
18 c. Where, before the expiration of the period prescribed under this
19 section for the assessment of an additional tax, a taxpayer has
20 consented in writing that such period be extended, the amount of such
21 additional tax may be determined at any time within such extended peri-
22 od. The period so extended may be further extended by subsequent
23 consents in writing made before the expiration of the extended period.
24 d. If any return, claim, statement, notice, application, or other
25 document required to be filed, or any payment required to be made, with-
26 in a prescribed period or on or before a prescribed date under authority
27 of any provision of this title is, after such period or such date,
28 delivered by United States mail to the commissioner of motor vehicles,
29 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
30 cer or person with which or with whom such document is required to be
31 filed, or to which or to whom such payment is required to be made, the
32 date of the United States postmark stamped on the envelope shall be
33 deemed to be the date of delivery. This subdivision shall apply only if
34 the postmark date falls within the prescribed period or on or before the
35 prescribed date for the filing of such document, or for making the
36 payment, including any extension granted for such filing or payment, and
37 only if such document or payment was deposited in the mail, postage
38 prepaid, properly addressed to the commissioner of motor vehicles,
39 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
40 cer or person with which or with whom the document is required to be
41 filed or to which or to whom such payment is required to be made. If any
42 document is sent by United States registered mail, such registration
43 shall be prima facie evidence that such document was delivered to the
44 commissioner of motor vehicles, commissioner of finance, the tax appeals
45 tribunal, bureau, office, officer or person to which or to whom
46 addressed, and the date of registration shall be deemed the postmark
47 date. The commissioner of motor vehicles is authorized to provide by
48 regulation the extent to which, such provisions with respect to prima
49 facie evidence of delivery and the postmark date, shall apply to certi-
50 fied mail. This subdivision shall apply in the case of postmarks not
51 made by the United States Postal Service only if and to the extent
52 provided by regulation of the commissioner of motor vehicles.
53 e. When the last day prescribed under authority of this title, includ-
54 ing any extension of time, for performing any act falls on a Saturday,
55 Sunday or legal holiday in the state of New York, the performance of
S. 8578 1160
1 such act shall be considered timely if it is performed on the next
2 succeeding day which is not a Saturday, Sunday or legal holiday.
3 § 11-2217 Commissioner of finance as agent. The commissioner of motor
4 vehicles is hereby authorized to designate the commissioner of finance
5 as his or her agent to exercise any or all of his or her functions and
6 powers specified or provided for in subdivision (d) of section 11-2205
7 and in sections 11-2206, 11-2208, 11-2211, 11-2213, 11-2214 and 11-2216
8 of this chapter. Where the commissioner of finance has been so desig-
9 nated as agent, the commissioner of finance, in addition to the powers
10 elsewhere granted to him or her in this chapter, is hereby authorized
11 and empowered:
12 1. To delegate such functions and powers to a commissioner or deputy
13 commissioner in the department of finance or to any employee or employ-
14 ees of the department of finance;
15 2. For cause shown, to remit penalties and to compromise disputed
16 claims in connection with the taxes hereby imposed;
17 3. To request information concerning motor vehicles and persons
18 subject to the provisions of this chapter from the department of motor
19 vehicles of any other state or the treasury department of the United
20 States, or any city or county of the state of New York; and to afford
21 such information to such other state, treasury department, city or coun-
22 ty, any provision of this chapter to the contrary notwithstanding;
23 4. To request the police department of the city to assist in the
24 enforcement of the provisions of this chapter.
25 § 11-2218 Agreement between commissioner of finance and commissioner
26 of motor vehicles. The commissioner of finance is hereby authorized and
27 empowered to enter into an agreement with the commissioner of motor
28 vehicles to govern the administration and collection of the taxes
29 imposed by this chapter, which agreement shall provide for the exclusive
30 method of collection of such taxes, custody and remittal of the proceeds
31 of such tax; for the payment by the city of the reasonable expenses
32 incurred by the department of motor vehicles in collecting and adminis-
33 tering such tax; and for the audit, upon request of the commissioner of
34 finance or his or her delegate, of the accuracy of the payments,
35 distributions and remittances to the commissioner of finance pursuant to
36 the provisions of this chapter, to be conducted at a time agreed upon by
37 the state comptroller and to be allowed not more frequently than once in
38 each calendar year. Such agreement shall have the force and effect of a
39 rule or regulation of the commissioner of motor vehicles, and shall be
40 filed and published in accordance with any statutory requirements relat-
41 ing thereto.
42 § 11-2219 Notification to corporation counsel. The commissioner of
43 motor vehicles shall promptly notify the corporation counsel of the city
44 of any litigation instituted against him or her which challenges the
45 constitutionality or validity of any provision of this chapter, or of
46 the enabling act pursuant to which it was adopted, or which attempts to
47 limit or question the applicability of either such law, and such notifi-
48 cation shall include a copy of the papers served upon him or her.
49 § 11-2220 Construction and enforcement. This chapter shall be
50 construed and enforced in conformity with subdivisions (g) and (h) of
51 section twelve hundred one of the tax law, pursuant to which it is
52 enacted.
53 § 11-2221 Disposition of revenues. All revenues resulting from the
54 imposition of the tax under this chapter shall be paid into the treasury
55 of the city and shall be credited to and deposited in the general fund
S. 8578 1161
1 of the city, but no part of such revenues may be expended unless appro-
2 priated in the annual budget of the city.
3 CHAPTER 23-A
4 ENHANCED 911 TELEPHONE SURCHARGE
5 § 11-2321 Short title. This chapter shall be known and may be cited as
6 the "enhanced 911 telephone surcharge act."
7 § 11-2322 Definitions. When used in this chapter the following terms
8 shall mean:
9 (a) "E911 system" means an enhanced emergency telephone service which
10 automatically connects a person dialing the digits 9-1-1 to the answer-
11 ing point established within the city of Staten Island police depart-
12 ment, and which shall include, but not be limited to, selective routing,
13 automatic number identification and automatic location identification.
14 (b) "Lifeline" means a discounted or low-priced telephone service
15 available to eligible low-income residential customers.
16 (c) "Access line" means a communications circuit that connects a
17 customer location to a facility housing the switching system and related
18 equipment that provides telephone service.
19 (d) "911 service area" means the area within the geographic boundaries
20 of the city of Staten Island.
21 (e) "Municipality" means any New York city agency, or any public bene-
22 fit corporation, local development corporation or other governmental
23 entity the majority of whose members or governing body is appointed by a
24 city official.
25 (f) "Public safety agency" means a public safety agency as defined in
26 subdivision five of section three hundred one of the county law.
27 (g) "Service supplier" means a service supplier as defined in subdivi-
28 sion seven of section three hundred one of the county law that provides
29 service within the 911 service area.
30 (h) "System costs" means the costs associated with obtaining and main-
31 taining the telecommunication equipment, all operations and maintenance
32 costs and the telephone services costs necessary to establish and
33 provide an E911 system.
34 (i) "Voice over internet protocol service" or "VOIP service" shall
35 mean any service that (1) enables real-time, two-way voice communi-
36 cations; (2) requires a broadband connection from the user's location;
37 (3) requires internet protocol compatible customer premises equipment
38 (CPE); and (4) permits users generally to receive calls that originate
39 on the public switched telephone network and to terminate calls to the
40 public switched telephone network.
41 § 11-2323 Establishment of surcharge for E911 system. (a) In accord-
42 ance with the provisions of article six of the county law, as amended,
43 there is hereby established a surcharge of one dollar per telephone
44 access line, or equivalent, per month on the customers of every service
45 supplier within the city of New York.
46 (b) The surcharge imposed by subdivision (a) of this section shall be
47 used to pay for the costs associated with obtaining, operating and main-
48 taining the telecommunication equipment and telephone services needed to
49 provide an enhanced 911 emergency telephone system to serve the city of
50 New York.
51 (c) All service suppliers that provide local access service within the
52 911 service area in the city of New York shall begin to add the monthly
53 surcharge of one dollar per telephone access line per month as provided
54 in subdivision (a) of this section to all service bills no later than
S. 8578 1162
1 the forty-fifth day after the effective date of the local law that
2 increased such surcharge to one dollar per telephone access line per
3 month. Notwithstanding the provisions of this subdivision, all provid-
4 ers of voice over internet protocol service that provide such service
5 within the 911 service area shall begin to add the monthly surcharge of
6 one dollar per telephone access line, or equivalent, per month as
7 provided in subdivision (a) of this section to all service bills no
8 later than September fifth, two thousand ten.
9 § 11-2324 Application; limitations; exemptions. (a) The surcharge
10 established pursuant to the provisions of section 11-2323 of this chap-
11 ter shall be imposed on a per access line basis on all current bills
12 rendered for local exchange access service within the 911 service area.
13 (b) No such surcharge shall be imposed upon:
14 (1) more than seventy-five exchange access lines per customer per
15 location;
16 (2) any lifeline customers of a local telephone service supplier; or
17 (3) a public safety agency; or
18 (4) any municipality, as defined in subdivision (e) of section 11-2322
19 of this chapter.
20 § 11-2325 Collection of surcharge. (a) The appropriate service suppli-
21 er or suppliers serving the city of Staten Island 911 service area shall
22 act as collection agents for the city and shall remit the funds
23 collected as the surcharge to the commissioner of finance each month.
24 Such funds shall be remitted no later than thirty days after the last
25 business day of such period.
26 (b) The service supplier shall be entitled to retain as an administra-
27 tive fee an amount equal to two per cent of its collections of the
28 surcharge.
29 (c) The surcharge required to be collected by the service supplier
30 shall be added to and stated separately in its billings to the customer.
31 (d) The service supplier shall annually provide to the commissioner of
32 finance an accounting of the surcharge amounts billed and collected.
33 § 11-2326 Liability for surcharge. (a) Each service supplier who is
34 subject to the provisions of this chapter shall be liable to the city
35 for the surcharge until it has been paid to the city, except that
36 payment to a service supplier is sufficient to relieve the customer from
37 further liability for such surcharge.
38 (b) The service supplier customer shall have no obligation to take any
39 legal action to enforce the collection of any surcharge. However, when-
40 ever the service supplier remits the funds collected as the surcharge to
41 the city, it shall also provide the city with the name and address of
42 any customer refusing or failing to pay the surcharge imposed by this
43 chapter and shall state the amount of such surcharge remaining unpaid.
44 § 11-2327 System revenues; adjustment of surcharge. (a) All surcharge
45 monies remitted to the commissioner of finance by a service supplier and
46 all other monies dedicated to the payment of system costs from whatever
47 source derived or received by the city of Staten Island shall be
48 expended only upon authorization of the council, and only for payment of
49 system costs as permitted by this chapter. The finance commissioner and
50 the director of the office of management and budget shall separately
51 account for and keep adequate records of the amount and source of all
52 such revenues and of the amount and object or purpose of all expendi-
53 tures thereof.
54 (b) If at the end of any fiscal year the total amount of all such
55 revenues exceeds the amount necessary for payment of system costs in
56 such fiscal year, such excess shall be reserved and carried over for the
S. 8578 1163
1 payment of system costs in the following fiscal year. However, if at the
2 end of any fiscal year in conformance with applicable law, such E911
3 reserved fund balance exceeds an amount equal to five per cent of that
4 necessary for the payment of system costs in such fiscal year, the coun-
5 cil shall by local law reduce the surcharge for the following fiscal
6 year to a level that more adequately reflects the system cost require-
7 ments of its E911 system. The council may also reestablish or increase
8 such surcharge, subject to the provisions of section three hundred three
9 of the county law, if the revenues generated by such surcharge and by
10 any other source are not adequate to pay for system costs.
11 CHAPTER 23-B
12 WIRELESS COMMUNICATIONS SERVICE SURCHARGE
13 § 11-2341 Short title. This chapter shall be known and may be cited as
14 the "wireless communications service surcharge act."
15 § 11-2342 Definitions. (a) "Wireless communications device" means any
16 equipment used to access a wireless communications service.
17 (b) "Wireless communications service" means all commercial mobile
18 services, as that term is defined in subdivision (d) of section three
19 hundred thirty-two of title forty-seven of the United States Code, as
20 amended from time to time, including, but not limited to, all broadband
21 personal communications services, wireless radio telephone services,
22 geographic area specialized and enhanced specialized mobile radio
23 services, and incumbent-wide area specialized mobile radio licensees,
24 which offer real time, two-way voice or data service that is intercon-
25 nected with the public switched telephone network or otherwise provides
26 access to emergency communications services.
27 (c) "Wireless communications service supplier" means any commercial
28 entity that operates a wireless communications service.
29 (d) "Place of primary use" means the street address that is represen-
30 tative of where the customer's use of the wireless communications
31 service primarily occurs, which address must be either the residential
32 street address or the primary business street address of the customer;
33 and within the licensed service area of the wireless communications
34 service provider.
35 § 11-2343 Establishment of surcharge for wireless communications
36 devices. (a) In accordance with the provisions of article six of the
37 county law, as amended, there is hereby established a surcharge of thir-
38 ty cents per month on wireless communications service in the city of New
39 York. The surcharge shall be imposed on each wireless communications
40 device and shall be reflected and made payable on bills rendered for
41 wireless communications service that is provided to a customer whose
42 place of primary use is within the city of New York.
43 (b) The surcharge imposed by subdivision (a) of this section shall be
44 used to pay for the costs associated with the design, construction,
45 operation, maintenance, and administration of public safety communi-
46 cations networks serving the city of New York.
47 (c) All wireless communications service suppliers that provide service
48 to customers whose place of primary use is within the city of New York
49 shall begin to add the monthly surcharge as provided in subdivision (a)
50 of this section to all service bills no later than the forty-fifth day
51 after the effective date of the local law that added this chapter.
52 (d) Notwithstanding any provision of law to the contrary, no surcharge
53 shall be imposed pursuant to this chapter on or after December first,
54 two thousand seventeen.
55 § 11-2344 Collection of surcharge. (a) Each wireless communications
56 service supplier serving the city of New York shall act as collection
S. 8578 1164
1 agent for the city of Staten Island and shall remit the funds collected
2 pursuant to the surcharge imposed under the provisions of this chapter
3 to the commissioner of finance each month. Such funds shall be remitted
4 no later than thirty days after the last business day of the month.
5 (b) Each wireless communications service supplier shall be entitled to
6 retain, as an administrative fee, an amount equal to two per cent of its
7 collections of the surcharge.
8 (c) The surcharge required to be collected by the wireless communi-
9 cations service supplier shall be added to and stated separately in its
10 billings to customers.
11 (d) Each wireless communications service supplier shall annually
12 provide to the city of Staten Island an accounting of the surcharge
13 amounts billed and collected.
14 § 11-2345 Liability for surcharge. (a) Each wireless communications
15 service customer who is subject to the provisions of this chapter shall
16 be liable to the city of Staten Island for the surcharge until it has
17 been paid to the city except that payment to a wireless communications
18 service supplier is sufficient to relieve the customer from further
19 liability for such surcharge.
20 (b) No wireless communications service supplier shall have a legal
21 obligation to enforce the collection of any surcharge imposed under the
22 provisions of this chapter, provided, however, that whenever the wire-
23 less communications service supplier remits the funds collected to the
24 city of Staten Island, it shall also provide the city with the name and
25 address of any customer refusing or failing to pay the surcharge and
26 shall state the amount of such surcharge remaining unpaid.
27 § 11-2346 Systems revenues; adjustment of surcharge. (a) All surcharge
28 monies remitted to the city of Staten Island by a wireless communi-
29 cations service supplier shall be expended only upon authorization of
30 the council and only for payment of system costs or other costs associ-
31 ated with the design, construction, operation, maintenance, and adminis-
32 tration of public safety communications networks serving the city of
33 Staten Island. The finance commissioner and the director of the office
34 of management and budget shall separately account for and keep adequate
35 books and records of the amount and source of all such monies and of the
36 amount and object or purpose of all expenditures thereof.
37 (b) If, at the end of any fiscal year, the total amount of all such
38 monies exceeds the amount necessary for payment of the above mentioned
39 costs in such fiscal year, such excess shall be reserved and carried
40 over for the payment of those costs in the following fiscal year.
41 CHAPTER 23-C
42 WIRELESS COMMUNICATIONS SURCHARGE
43 § 11-2351 Surcharge on wireless communications service. (a) There is
44 hereby imposed within the territorial limits of the city of Staten
45 Island, in accordance with the provisions of section one hundred eight-
46 y-six-g of the tax law, a surcharge on wireless communications service,
47 as such surcharge is described in paragraph (b) of subdivision two of
48 section one hundred eighty-six-g of the tax law.
49 (b) Such surcharge shall be imposed at the rate of thirty cents per
50 month on each wireless communications device in service during any part
51 of the month.
52 (c) A wireless communications service supplier shall begin to add such
53 surcharge to the billings of its customers on December first, two thou-
54 sand seventeen.
S. 8578 1165
1 § 11-2352 Surcharge on the retail sale of each prepaid wireless commu-
2 nications service. (a) There is hereby imposed within the territorial
3 limits of the city of Staten Island, in accordance with the provisions
4 of section one hundred eighty-six-g of the tax law, a surcharge on
5 prepaid wireless communications service, as such surcharge is described
6 in paragraph (c) of subdivision two of section one hundred eighty-six-g
7 of the tax law.
8 (b) Such surcharge shall be imposed at the rate of thirty cents per
9 retail sale.
10 (c) A prepaid wireless communications seller shall begin to collect
11 such surcharge from its customers on December first, two thousand seven-
12 teen.
13 CHAPTER 24
14 TAX ON RETAIL LICENSEES OF THE STATE LIQUOR AUTHORITY
15 § 11-2401 Definitions. When used in this chapter the following terms
16 shall mean or include:
17 1. "Person." An individual, partnership, society, association, joint-
18 stock company, corporation, estate, receiver, lessee, trustee, assignee,
19 referee, or any other person acting in a fiduciary or representative
20 capacity, whether appointed by a court or otherwise, and any combination
21 of individuals.
22 2. "Retail licensee." Any person to whom a license has been issued
23 by the state liquor authority under the state alcoholic beverage control
24 law who sells at retail in the city, for on or off premises consumption,
25 any liquor, wine or beer for the sale of which such license is required.
26 3. "Return." Any return required to be filed as provided under this
27 chapter.
28 4. "State." The state of New York.
29 5. "City." The city of Staten Island.
30 6. "Commissioner." The commissioner of finance of the city of Staten
31 Island.
32 7. "Tax year." June first of any calendar year through May thirty-
33 first of the following calendar year.
34 8. "Tax appeals tribunal." The tax appeals tribunal established by
35 section one hundred sixty-eight of the charter of the preceding munici-
36 pality as it existed January first, nineteen hundred ninety-four.
37 § 11-2402 Imposition of tax. For the privilege of selling liquor,
38 wine or beer at retail, for on or off premises consumption, within the
39 city of Staten Island, there is hereby imposed and there shall be paid
40 annually for each tax year, commencing with the tax year beginning June
41 first, nineteen hundred eighty, a tax to be paid by each retail licensee
42 in an amount equal to twenty-five percent of the license fees payable
43 under the state alcoholic beverage control law by such retail licensee
44 for the license year in effect at the commencement of the tax year under
45 this chapter. A retail licensee who obtains a license subsequent to the
46 commencement of a tax year shall pay the tax based upon fees payable
47 under the state alcoholic beverage control law by such licensee for the
48 license year in effect at the time such license is issued. This tax
49 shall be in addition to any and all other taxes paid by such retail
50 licensee.
51 § 11-2403 Exemptions. The tax imposed by this chapter shall not apply
52 to the following:
53 (a) The state of New York, or any of its agencies, instrumentalities,
54 public corporations, including a public corporation created pursuant to
S. 8578 1166
1 agreement or compact with another state or Canada, or political subdivi-
2 sions;
3 (b) The United States of America, and any of its agencies and instru-
4 mentalities insofar as it is immune from taxation;
5 (c) The United Nations or other international organizations of which
6 the United States of America is a member; and
7 (d) Any corporation, or association, or trust, or community chest,
8 fund or foundation, organized and operated exclusively for religious,
9 charitable, or educational purposes, or for the prevention of cruelty to
10 children or animals, and no part of the net earnings of which inures to
11 the benefit of any private shareholder or individual, and no substantial
12 part of the activities of which is carrying on propaganda, or otherwise
13 attempting to influence legislation; provided, however, that nothing in
14 this paragraph shall include an organization operated for the primary
15 purpose of carrying on a trade or business for profit, whether or not
16 all of its profits are payable to one or more organizations described in
17 this subdivision.
18 § 11-2404 Records to be kept. Every retail licensee shall keep such
19 records of its business and in such form as the commissioner may by
20 regulation require. Such records shall be offered for inspection and
21 examination at any time upon demand by the commissioner or his or her
22 duly authorized agent or employee and shall be preserved for a period of
23 three years, except that the commissioner may consent to their
24 destruction within that period or may require that they be kept longer.
25 § 11-2405 Returns. a. On or before the twenty-fifth day of June in
26 each tax year, every person subject to tax under this chapter shall file
27 a return with the commissioner on a form prescribed by the commissioner.
28 A retail licensee who obtains a license subsequent to the commencement
29 of a tax year shall file a return for such tax year on or before the
30 twenty-fifth day of the month following the month in which such license
31 was obtained.
32 b. The return shall state the amount of license fees paid to the
33 state under the alcoholic beverage control law and the date when a
34 license under such law was issued to the retail licensee and shall
35 contain any other information which the commissioner may deem necessary
36 for the proper administration of this chapter. The commissioner may
37 require amended returns to be filed within twenty days after notice and
38 to contain the information specified in the notice.
39 c. If a return required by this chapter is not filed or if a return
40 when filed is incorrect or insufficient on its face, the commissioner
41 shall take the necessary steps to enforce the filing of such a return or
42 of a corrected return.
43 d. The return otherwise required to be filed on or before June twen-
44 ty-fifth, nineteen hundred eighty under the provisions of subdivision a
45 of this section, shall be made and filed on or before August twenty-
46 fifth, nineteen hundred eighty.
47 § 11-2406 Payment of tax. At the time of filing a return each person
48 shall pay to the commissioner the tax imposed under this chapter. Such
49 tax shall be due and payable on the last day on which such return is
50 required to be filed, regardless of whether a return is filed or whether
51 the return which is filed correctly indicates the amount of tax due.
52 § 11-2407 Determination of tax. If a return required by this chapter
53 is not filed, or if a return when filed is incorrect or insufficient,
54 the commissioner shall determine the amount of tax due from such infor-
55 mation as may be obtainable and, if necessary, may estimate the tax on
56 the basis of external indices. Notice of such determination shall be
S. 8578 1167
1 given to the person liable for the payment of the tax. Such determi-
2 nation shall finally and irrevocably fix the tax unless the person
3 against whom it is assessed, within ninety days after the giving of
4 notice of such determination, or, if the commissioner of finance has
5 established a conciliation procedure pursuant to section 11-124 of the
6 code of the preceding municipality and the taxpayer has requested a
7 conciliation conference in accordance therewith, within ninety days from
8 the mailing of a conciliation decision or the date of the commissioner's
9 confirmation of the discontinuance of the conciliation proceeding, both
10 (1) serves a petition upon the commissioner of finance and (2) files a
11 petition with the tax appeals tribunal for a hearing, or unless the
12 commissioner of his or her own motion shall redetermine the same. Such
13 hearing and any appeal to the tax appeals tribunal sitting en banc from
14 the decision rendered in such hearing shall be conducted in the manner
15 and subject to the requirements prescribed by the tax appeals tribunal
16 pursuant to sections one hundred sixty-eight through one hundred seven-
17 ty-two of the charter of the preceding municipality as it existed Janu-
18 ary first, nineteen hundred ninety-four. After such hearing the tax
19 appeals tribunal shall give notice of its decision to the person against
20 whom the tax is assessed and to the commissioner of finance. A decision
21 of the tax appeals tribunal sitting en banc shall be reviewable for
22 error, illegality or unconstitutionality or any other reason whatsoever
23 by a proceeding under article seventy-eight of the civil practice law
24 and rules if application therefor is made to the supreme court by the
25 person against whom the tax was assessed within four months after the
26 giving of the notice of such tax appeals tribunal decision. A proceed-
27 ing under article seventy-eight of the civil practice law and rules
28 shall not be instituted by a taxpayer unless: (a) the amount of any tax
29 sought to be reviewed, with penalties and interest thereon, if any,
30 shall be first deposited with the commissioner and there shall be filed
31 with the commissioner an undertaking issued by a surety company author-
32 ized to transact business in this state and approved by the superinten-
33 dent of insurance of this state as to solvency and responsibility, in
34 such amount as a justice of the supreme court shall approve, to the
35 effect that if such proceeding be dismissed or the tax confirmed, the
36 taxpayer will pay all costs and charges which may accrue in the prose-
37 cution of the proceedings or (b) at the option of the taxpayer, such
38 undertaking may be in a sum sufficient to cover the taxes, interest and
39 penalties stated in such decision, plus the costs and charges which may
40 accrue against it in the prosecution of the proceeding, in which event
41 the taxpayer shall not be required to pay such taxes, interest or penal-
42 ties as a condition precedent to the application.
43 § 11-2408 Refunds. a. In the manner provided in this section, the
44 commissioner shall refund or credit, without interest, any tax, penalty
45 or interest erroneously, illegally or unconstitutionally collected or
46 paid, if written application to the commissioner for such refund shall
47 be made within one year from the payment thereof. Whenever a refund or
48 credit is made or denied, the commissioner shall state his or her reason
49 therefor and give notice thereof to the taxpayer in writing. The commis-
50 sioner may, in lieu of any refund required to be made, allow credit
51 therefor on payments due from the applicant.
52 b. Any determination of the commissioner of finance denying a refund
53 or credit pursuant to subdivision a of this section shall be final and
54 irrevocable unless the applicant for such refund or credit, within nine-
55 ty days from the mailing of notice of such determination, or, if the
56 commissioner of finance has established a conciliation procedure pursu-
S. 8578 1168
1 ant to section 11-124 of the code of the preceding municipality and the
2 applicant has requested a conciliation conference in accordance there-
3 with, within ninety days from the mailing of a conciliation decision or
4 the date of the commissioner's confirmation of the discontinuance of the
5 conciliation proceeding, both (1) serves a petition upon the commission-
6 er of finance and (2) files a petition with the tax appeals tribunal for
7 a hearing. Such petition for a refund or credit made as provided in this
8 section shall be deemed an application for a revision of any tax, penal-
9 ty or interest complained of. Such hearing and any appeal to the tribu-
10 nal sitting en banc from the decision rendered in such hearing shall be
11 conducted in the manner and subject to the requirements prescribed by
12 the tax appeals tribunal pursuant to sections one hundred sixty-eight
13 through one hundred seventy-two of the charter of the preceding munici-
14 pality as it existed January first, nineteen hundred ninety-four. After
15 such hearing, the tax appeals tribunal shall give notice of its decision
16 to the applicant and to the commissioner of finance. The applicant shall
17 be entitled to institute a proceeding pursuant to article seventy-eight
18 of the civil practice law and rules to review a decision of the tax
19 appeals tribunal sitting en banc if application to the supreme court be
20 made therefor within four months after the giving of notice of such
21 decision, and provided, in the case of an application by a taxpayer,
22 that a final determination of tax due was not previously made. Such a
23 proceeding shall not be instituted by a taxpayer unless an undertaking
24 shall first be filed with the commissioner, in such amount and with such
25 sureties as a justice of the supreme court shall approve, to the effect
26 that if such proceeding be dismissed or the tax confirmed, the taxpayer
27 will pay all costs and charges which may accrue in the prosecution of
28 the proceeding.
29 c. A person shall not be entitled to a revision, refund or credit
30 under this section, of a tax, interest or penalty which had been deter-
31 mined to be due pursuant to the provisions of section 11-2407 of this
32 chapter where such person has had a hearing or an opportunity for a
33 hearing, as provided in such section or has failed to avail himself or
34 herself of the remedies as provided in such section. No refund or cred-
35 it shall be made of a tax, interest or penalty paid after a determi-
36 nation by the commissioner made pursuant to section 11-2407 of this
37 chapter unless it be found that such determination was erroneous, ille-
38 gal or unconstitutional or otherwise improper, by the tax appeals tribu-
39 nal after a hearing or of the commissioner's own motion, or, if such tax
40 appeals tribunal affirms in whole or in part the determination of the
41 commissioner of finance, in a proceeding under article seventy-eight of
42 the civil practice law and rules, pursuant to the provisions of said
43 section in which event refund or credit without interest shall be made
44 of the tax, interest or penalty found to have been overpaid.
45 § 11-2409 Remedies exclusive. The remedies provided by this chapter
46 shall be the exclusive remedies available to any person for the review
47 of tax liability imposed by this chapter; and no determination or
48 proposed determination of tax or determination on any application for
49 refund by the commissioner of finance, nor any decision by the tax
50 appeals tribunal or any of its administrative law judges, shall be
51 enjoined or reviewed by an action for declaratory judgment, an action
52 for money had and received or by any action or proceeding other than, in
53 the case of a decision by the tax appeals tribunal sitting en banc, a
54 proceeding under article seventy-eight of the civil practice law and
55 rules; provided, however, that a taxpayer may proceed by declaratory
56 judgment if such taxpayer institutes suit within thirty days after a
S. 8578 1169
1 deficiency assessment is made and pays the amount of the deficiency
2 assessment to the commissioner prior to the institution of such suit and
3 posts a bond for costs as provided in section 11-2407 of this chapter.
4 § 11-2410 Reserves. In cases where the taxpayer has applied for a
5 refund and has instituted a proceeding under article seventy-eight of
6 the civil practice law and rules to review a determination adverse to
7 such taxpayer on his or her application for refund, the city comptroller
8 shall set up appropriate reserves to meet any decision adverse to the
9 city.
10 § 11-2411 Proceedings to recover tax. a. Whenever any person shall
11 fail to pay any tax or penalty or interest imposed by this chapter, the
12 corporation counsel shall, upon the request of the commissioner, bring
13 or cause to be brought an action to enforce payment of the same against
14 the person liable for the same on behalf of the city of Staten Island in
15 any court of the state of New York or of any other state or of the
16 United States. If, however, the commissioner in his or her discretion
17 believes that a taxpayer subject to the provisions of this chapter is
18 about to cease business, leave the state or remove or dissipate the
19 assets out of which tax or penalties or interest might be satisfied and
20 that any such tax or penalty or interest will not be paid when due, he
21 or she may declare such tax or penalty or interest to be immediately due
22 and payable and may issue a warrant immediately.
23 b. As an additional or alternate remedy, the commission may issue a
24 warrant, directed to the city sheriff, commanding such sheriff to levy
25 upon and sell the real and personal property of such person which may be
26 found within the city, for the payment of the amount thereof, with any
27 penalties and interest, and the cost of executing the warrant, and to
28 return such warrant to the commissioner and to pay to him or her the
29 money collected by virtue thereof within sixty days after receipt of
30 such warrant. The city sheriff shall, within five days after the
31 receipt of the warrant, file with the county clerk a copy thereof, and
32 thereupon such clerk shall enter in the judgment docket the name of the
33 person mentioned in the warrant and the amount of the tax, penalties and
34 interest for which the warrant is issued and the date when such copy is
35 filed. Thereupon the amount of such warrant so docketed shall become a
36 lien upon the title to and interest in real and personal property of the
37 person against whom the warrant is issued. The city sheriff shall then
38 proceed upon the warrant in the same manner and with like effect as that
39 provided by law in respect to executions issued against property upon
40 judgments of a court of record, and for services in executing the
41 warrant such sheriff shall be entitled to the same fees which he or she
42 may collect in the same manner. In the discretion of the commissioner a
43 warrant of like terms, force and effect may be issued and directed to
44 any officer or employee of the department of finance, and in the
45 execution thereof such officer or employee shall have all the powers
46 conferred by law upon sheriffs, but he or she shall be entitled to no
47 fee for compensation in excess of the actual expenses paid in the
48 performance of such duty. If a warrant is returned not satisfied in
49 full, the commissioner may from time to time issue new warrants and
50 shall also have the same remedies to enforce the amount due thereunder
51 as if the city had recovered judgment therefor and execution thereon had
52 been returned unsatisfied.
53 c. Whenever there is made a sale, transfer or assignment in bulk of
54 any part or the whole of a stock of merchandise or of fixtures, or
55 merchandise and of fixtures pertaining to the conducting of the business
56 of the seller, transferor or assignor, otherwise than in the ordinary
S. 8578 1170
1 course of trade and in the regular prosecution of said business, the
2 purchaser, transferee or assignee shall at least ten days before taking
3 possession of such merchandise, fixtures, or merchandise and fixtures,
4 or paying therefor, notify the commissioner by registered mail of the
5 proposed sale and of the price, terms and conditions thereof whether or
6 not the seller, transferor or assignor, has represented to, or informed
7 the purchaser, transferee or assignee that it owes any tax pursuant to
8 this chapter and whether or not the purchaser, transferee or assignee
9 has knowledge that such taxes are owing, and whether any such taxes are
10 in fact owing.
11 Whenever the purchaser, transferee or assignee shall fail to give
12 notice to the commissioner as required by the opening paragraph of this
13 subdivision, or whenever the commissioner shall inform the purchaser,
14 transferee or assignee that a possible claim for such tax or taxes
15 exists, any sums of money, property or choses in action, or other
16 consideration, which the purchaser, transferee or assignee is required
17 to transfer over to the seller, transferor or assignor shall be subject
18 to a first priority right and lien for any such taxes theretofore or
19 thereafter determined to be due from the seller, transferor or assignor
20 to the city, and the purchaser, transferee or assignee is forbidden to
21 transfer to the seller, transferor or assignor any such sums of money,
22 property or choses in action to the extent of the amount of the city's
23 claim. For failure to comply with the provisions of this subdivision,
24 the purchaser, transferee or assignee, in addition to being subject to
25 the liabilities and remedies imposed under the provisions of article six
26 of the uniform commercial code, shall be personally liable for the
27 payment to the city of any such taxes theretofore or thereafter deter-
28 mined to be due to the city from the seller, transferor or assignor, and
29 such liability may be assessed and enforced in the same manner as the
30 liability for tax under this chapter.
31 d. The commissioner of finance, if he or she finds that the interests
32 of the city will not thereby be jeopardized, and upon such conditions as
33 the commissioner of finance may require, may release any property from
34 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
35 tions to tax, penalties and interest filed pursuant to subdivision b of
36 this section, and such release or vacating of the warrant may be
37 recorded in the office of any recording officer in which such warrant
38 has been filed. The clerk shall thereupon cancel and discharge as of the
39 original date of docketing the vacated warrant.
40 § 11-2412 General powers of the commissioner. In addition to all
41 other powers granted to the commissioner in this chapter, he or she is
42 hereby authorized and empowered:
43 1. To make, adopt and amend rules and regulations appropriate to the
44 carrying out of this chapter and the purposes thereof; and to prescribe
45 the form of blanks, reports and other records relating to the enforce-
46 ment and administration of this chapter;
47 2. To extend, for cause shown, the time for filing any return for a
48 period not exceeding thirty days; and to compromise disputed claims in
49 connection with the taxes hereby imposed;
50 3. To request information from the department of taxation and finance
51 of the state of New York or the state liquor authority or the officials
52 of any political subdivision of this state or the treasury department of
53 the United States relative to any person; and to afford information to
54 such department of taxation and finance, liquor authority, officials or
55 treasury department relative to any person, any other provision of this
56 chapter to the contrary notwithstanding;
S. 8578 1171
1 4. To delegate his or her functions under this section to a deputy or
2 assistant or other employee or employees of his or her department;
3 5. To assess, reassess, determine, revise and readjust the taxes
4 imposed under this chapter;
5 6. To provide by regulation for granting a refund of an appropriate
6 portion of the tax where the retail licensee ceases to do business
7 during the course of the tax year under circumstances which result in,
8 or would entitle such licensee to, a refund of license fee by the state
9 liquor authority. The provisions of section 11-2408 of this chapter
10 shall be applicable to such refunds.
11 § 11-2413 Administration of oaths and compelling testimony. a. The
12 commissioner, his or her employees duly designated and authorized by the
13 commissioner, the tax appeals tribunal and any of its duly designated
14 and authorized employees shall have power to administer oaths and take
15 affidavits in relation to any matter or proceeding in the exercise of
16 their powers and duties under this chapter. The commissioner and the tax
17 appeals tribunal shall have power to subpoena and require the attendance
18 of witnesses and the production of books, papers and documents to secure
19 information pertinent to the performance of the duties of the commis-
20 sioner or the tax appeals tribunal under this chapter and of the
21 enforcement of this chapter and to examine them in relation thereto, and
22 to issue commissions for the examination of witnesses who are out of the
23 state or unable to attend before the commissioner or the tax appeals
24 tribunal or excused from attendance.
25 b. A justice of the supreme court either in court or at chambers shall
26 have power summarily to enforce by proper proceedings the attendance and
27 testimony of witnesses and the production and examination of books,
28 papers and documents called for by the subpoena of the commissioner or
29 the tax appeals tribunal under this chapter.
30 c. Cross-reference; criminal penalties. For failure to obey subpoenas
31 or for testifying falsely, see section 11-4007 of this title; for
32 supplying false or fraudulent information, see section 11-4009 of this
33 title.
34 d. The officers who serve the summons or subpoena of the commissioner
35 of finance or the tax appeals tribunal under this chapter and witnesses
36 attending in response thereto shall be entitled to the same fees as are
37 allowed to officers and witnesses in civil cases in courts of record,
38 except as otherwise provided in this chapter. Such officers shall be
39 the city sheriff, and his or her duly appointed deputies or any officers
40 or employees of the department of finance or the tax appeals tribunal,
41 designated to serve such process.
42 § 11-2414 Interest and penalties. (a) Interest on underpayments. If
43 any amount of tax is not paid on or before the last date prescribed for
44 payment, without regard to any extension of time granted for payment,
45 interest on such amount at the rate set by the commissioner of finance
46 pursuant to subdivision (g) of this section, or, if no rate is set, at
47 the rate of seven and one-half percent per annum, shall be paid for the
48 period from such last date to the date of payment. In computing the
49 amount of interest to be paid, such interest shall be compounded daily.
50 Interest under this subdivision shall not be paid if the amount thereof
51 is less than one dollar.
52 (b) (1) Failure to file return. (A) In case of failure to file a
53 return under this chapter on or before the prescribed date, determined
54 with regard to any extension of time for filing, unless it is shown that
55 such failure is due to reasonable cause and not due to willful neglect,
56 there shall be added to the amount required to be shown as tax on such
S. 8578 1172
1 return five percent of the amount of such tax if the failure is for not
2 more than one month, with an additional five percent for each additional
3 month or fraction thereof during which such failure continues, not
4 exceeding twenty-five percent in the aggregate.
5 (B) In the case of a failure to file a return of tax within sixty days
6 of the date prescribed for filing of such return, determined with regard
7 to any extension of time for filing, unless it is shown that such fail-
8 ure is due to reasonable cause and not due to willful neglect, the addi-
9 tion to tax under subparagraph (A) of this paragraph shall not be less
10 than the lesser of one hundred dollars or one hundred percent of the
11 amount required to be shown as tax on such return.
12 (C) For purposes of this paragraph, the amount of tax required to be
13 shown on the return shall be reduced by the amount of any part of the
14 tax which is paid on or before the date prescribed for payment of the
15 tax and by the amount of any credit against the tax which may be claimed
16 upon the return.
17 (2) Failure to pay tax shown on return. In case of failure to pay the
18 amount shown as tax on a return required to be filed under this chapter
19 on or before the prescribed date, determined with regard to any exten-
20 sion of time for payment, unless it is shown that such failure is due to
21 reasonable cause and not due to willful neglect, there shall be added to
22 the amount shown as tax on such return one-half of one percent of the
23 amount of such tax if the failure is not for more than one month, with
24 an additional one-half of one percent for each additional month or frac-
25 tion thereof during which such failure continues, not exceeding twenty-
26 five percent in the aggregate. For the purpose of computing the addition
27 for any month the amount of tax shown on the return shall be reduced by
28 the amount of any part of the tax which is paid on or before the begin-
29 ning of such month and by the amount of any credit against the tax which
30 may be claimed upon the return. If the amount of tax required to be
31 shown on a return is less than the amount shown as tax on such return,
32 this paragraph shall be applied by substituting such lower amount.
33 (3) Failure to pay tax required to be shown on return. In case of
34 failure to pay any amount in respect of any tax required to be shown on
35 a return required to be filed under this chapter which is not so shown,
36 including a determination made pursuant to section 11-2407 of this chap-
37 ter, within ten days of the date of a notice and demand therefor, unless
38 it is shown that such failure is due to reasonable cause and not due to
39 willful neglect, there shall be added to the amount of tax stated in
40 such notice and demand one-half of one percent of such tax if the fail-
41 ure is not for more than one month, with an additional one-half of one
42 percent for each additional month or fraction thereof during which such
43 failure continues, not exceeding twenty-five percent in the aggregate.
44 For the purpose of computing the addition for any month, the amount of
45 tax stated in the notice and demand shall be reduced by the amount of
46 any part of the tax which is paid before the beginning of such month.
47 (4) Limitations on additions.
48 (A) With respect to any return the amount of the addition under para-
49 graph one of this subdivision shall be reduced by the amount of the
50 addition under paragraph two of this subdivision for any month to which
51 an addition applies under both paragraphs one and two. In any case
52 described in subparagraph (B) of paragraph one of this subdivision, the
53 amount of the addition under such paragraph one shall not be reduced
54 below the amount provided in such subparagraph.
55 (B) With respect to any return, the maximum amount of the addition
56 permitted under paragraph three of this subdivision shall be reduced by
S. 8578 1173
1 the amount of the addition under paragraph one of this subdivision,
2 determined without regard to subparagraph (B) of such paragraph one,
3 which is attributable to the tax for which the notice and demand is made
4 and which is not paid within ten days of such notice and demand.
5 (c) Underpayment due to negligence. (1) If any part of an underpay-
6 ment of tax is due to negligence or intentional disregard of this chap-
7 ter or any rules or regulations relating thereto, but without intent to
8 defraud, there shall be added to the tax a penalty equal to five percent
9 of the underpayment.
10 (2) There shall be added to the tax, in addition to the amount deter-
11 mined under paragraph one of this subdivision, an amount equal to fifty
12 percent of the interest payable under subdivision (a) of this section
13 with respect to the portion of the underpayment described in such para-
14 graph one which is attributable to the negligence or intentional disre-
15 gard referred to in such paragraph one, for the period beginning on the
16 last date prescribed by law for payment of such underpayment, determined
17 without regard to any extension, and ending on the date of the assess-
18 ment of the tax, or, if earlier, the date of the payment of the tax.
19 (d) Underpayment due to fraud. (1) If any part of an underpayment of
20 tax is due to fraud, there shall be added to the tax a penalty equal to
21 fifty percent of the underpayment.
22 (2) There shall be added to the tax, in addition to the penalty deter-
23 mined under paragraph one of this subdivision, an amount equal to fifty
24 percent of the interest payable under subdivision (a) of this section
25 with respect to the portion of the underpayment described in such para-
26 graph one which is attributable to fraud, for the period beginning on
27 the last day prescribed by law for payment of such underpayment, deter-
28 mined without regard to any extension, and ending on the date of the
29 assessment of the tax, or, if earlier, the date of the payment of the
30 tax.
31 (3) The penalty under this subdivision shall be in lieu of any other
32 addition to tax imposed by subdivision (b) or (c) of this section.
33 (e) Additional penalty. Any person who, with fraudulent intent, shall
34 fail to pay any tax imposed by this chapter, or to make, render, sign or
35 certify any return, or to supply any information within the time
36 required by or under this chapter, shall be liable for a penalty of not
37 more than one thousand dollars, in addition to any other amounts
38 required under this chapter to be imposed, assessed and collected by the
39 commissioner of finance. The commissioner of finance shall have the
40 power, in his or her discretion, to waive, reduce or compromise any
41 penalty under this subdivision.
42 (f) The interest and penalties imposed by this section shall be paid
43 and disposed of in the same manner as other revenues from this chapter.
44 Unpaid interest and penalties may be enforced in the same manner as the
45 tax imposed by this chapter.
46 (g)(1) Authority to set interest rates. The commissioner of finance
47 shall set the rate of interest to be paid pursuant to subdivision (a) of
48 this section, but if no such rate of interest is set, such rate shall be
49 deemed to be set at seven and one-half percent per annum. Such rate
50 shall be the rate prescribed in paragraph two of this subdivision but
51 shall not be less than seven and one-half percent per annum. Any such
52 rate set by the commissioner of finance shall apply to taxes, or any
53 portion thereof, which remain or become due on or after the date on
54 which such rate becomes effective and shall apply only with respect to
55 interest computed or computable for periods or portions of periods
56 occurring in the period in which such rate is in effect.
S. 8578 1174
1 (2) General rule. The rate of interest set under this subdivision
2 shall be the sum of (i) the federal short-term rate as provided under
3 paragraph three of this subdivision, plus (ii) seven percentage points.
4 (3) Federal short-term rate. For purposes of this subdivision:
5 (A) The federal short-term rate for any month shall be the federal
6 short-term rate determined by the United States secretary of the treas-
7 ury during such month in accordance with subsection (d) of section
8 twelve hundred seventy-four of the internal revenue code for use in
9 connection with section six thousand six hundred twenty-one of the
10 internal revenue code. Any such rate shall be rounded to the nearest
11 full percent, or, if a multiple of one-half of one percent, such rate
12 shall be increased to the next highest full percent.
13 (B) Period during which rate applies.
14 (i) In general. Except as provided in clause (ii) of this subpara-
15 graph, the federal short-term rate for the first month in each calendar
16 quarter shall apply during the first calendar quarter beginning after
17 such month.
18 (ii) Special rule for the month of September, nineteen hundred eight-
19 y-nine. The federal short-term rate for the month of April, nineteen
20 hundred eighty-nine shall apply with respect to setting the rate of
21 interest for the month of September, nineteen hundred eighty-nine.
22 (4) Publication of interest rate. The commissioner of finance shall
23 cause to be published in the City Record, and give other appropriate
24 general notice of, the interest rate to be set under this subdivision no
25 later than twenty days preceding the first day of the calendar quarter
26 during which such interest rate applies. The setting and publication of
27 such interest rate shall not be included within paragraph (a) of subdi-
28 vision five of section one thousand forty-one of the city charter of the
29 preceding municipality as it existed January first, nineteen hundred
30 ninety-four relating to the definition of a rule.
31 (h) Miscellaneous. (1) The certificate of the commissioner of finance
32 to the effect that a tax has not been paid, that a return has not been
33 filed, that information has not been supplied pursuant to the provisions
34 of this chapter or that records have not been retained pursuant to the
35 provisions of this chapter shall be prima facie evidence thereof.
36 (2) Cross-reference: For criminal penalties, see chapter forty of this
37 title.
38 § 11-2415 Returns to be secret. (a) Except in accordance with proper
39 judicial order, or as otherwise provided by law, it shall be unlawful
40 for the commissioner, the tax appeals tribunal or any officer or employ-
41 ee of the city to divulge or make known in any manner any information
42 relating to the business of a taxpayer contained in any return required
43 under this chapter. The officers charged with the custody of such
44 returns shall not be required to produce any of them or evidence of
45 anything contained in them in any action or proceeding in any court,
46 except on behalf of the commissioner in an action or proceeding under
47 the provisions of this chapter, or on behalf of any party to any action
48 or proceeding under the provisions of this chapter when the returns or
49 facts shown thereby are directly involved in such action or proceeding,
50 in either of which events the court may require the production of, and
51 may admit in evidence, so much of said returns or of the facts shown
52 thereby, as are pertinent to the action or proceeding and no more.
53 Nothing under this section shall be construed to prohibit the delivery
54 to a taxpayer or the taxpayer's duly authorized representative of a
55 certified copy of any return filed in connection with his or her tax nor
56 to prohibit the publication of statistics so classified as to prevent
S. 8578 1175
1 the identification of particular returns and the items thereof, or the
2 inspection by the corporation counsel or other legal representatives of
3 the city, or by the district attorney of Richmond county, of the return
4 of any taxpayer who shall bring action to set aside or review the tax
5 based thereon, or against whom an action or proceeding under this chap-
6 ter may be instituted. Returns shall be preserved for three years and
7 thereafter until the commissioner permits them to be destroyed.
8 (b) (1) Any officer or employee of the city who willfully violates the
9 provisions of subdivision (a) of this section shall be dismissed from
10 office and be incapable of holding any public office in this city for a
11 period of five years thereafter.
12 (2) Cross-reference: For criminal penalties, see chapter forty of this
13 title.
14 (c) This section shall be deemed a state statute for purposes of
15 paragraph (a) of subdivision two of section eighty-seven of the public
16 officers law.
17 (d) Notwithstanding anything in subdivision (a) of this section to the
18 contrary, if a taxpayer has petitioned the tax appeals tribunal for
19 administrative review as provided in section one hundred seventy of the
20 charter of the preceding municipality as it existed January first, nine-
21 teen hundred ninety-four, the commissioner of finance shall be author-
22 ized to present to the tribunal any report or return of such taxpayer,
23 or any information contained therein or relating thereto, which may be
24 material or relevant to the proceeding before the tribunal. The tax
25 appeals tribunal shall be authorized to publish a copy or a summary of
26 any decision rendered pursuant to section one hundred seventy-one of the
27 charter of the preceding municipality as it existed January first, nine-
28 teen hundred ninety-four.
29 § 11-2416 Notices and limitations of time. a. Any notice authorized
30 or required under the provisions of this chapter may be given by mailing
31 the same to the person for whom it is intended in a postpaid envelope
32 addressed to such person at the address given in the last return filed
33 by him or her pursuant to the provisions of this chapter or in any
34 application made by him or her, or, if no return has been filed or
35 application made, then to such address as may be obtainable. The mailing
36 of such notice shall be presumptive evidence of the receipt of the same
37 by the person to whom addressed. Any period of time which is determined
38 according to the provisions of this chapter by the giving of notice
39 shall commence to run from the date of mailing of such notice.
40 b. The provisions of the civil practice law and rules or any other law
41 relative to limitations of time for the enforcement of a civil remedy
42 shall not apply to any proceeding or action taken by the city to levy,
43 appraise, assess, determine or enforce the collection of any tax or
44 penalty or interest provided by this chapter. However, except in the
45 case of a wilfully false or fraudulent return with intent to evade the
46 tax, no assessment of additional tax shall be made after the expiration
47 of more than three years from the date of the filing of a return,
48 provided, however, that where no return has been filed as provided by
49 law the tax may be assessed at any time.
50 c. Where, before the expiration of the period prescribed in this
51 section for the assessment of an additional tax, a taxpayer has
52 consented in writing that such period be extended, the amount of such
53 additional tax due may be determined at any time within such extended
54 period. The period so extended may be further extended by subsequent
55 consents in writing made before the expiration of the extended period.
S. 8578 1176
1 d. If any return, claim, statement, notice, application, or other
2 document required to be filed, or any payment required to be made, with-
3 in a prescribed period or on or before a prescribed date under authority
4 of any provision of this chapter is, after such period or such date,
5 delivered by United States mail to the commissioner of finance, the tax
6 appeals tribunal, bureau, office, officer or person with which or with
7 whom such document is required to be filed, or to which or to whom such
8 payment is required to be made, the date of the United States postmark
9 stamped on the envelope shall be deemed to be the date of delivery. This
10 subdivision shall apply only if the postmark date falls within the
11 prescribed period or on or before the prescribed date for the filing of
12 such document, or for making the payment, including any extension grant-
13 ed for such filing or payment, and only if such document or payment was
14 deposited in the mail, postage prepaid, properly addressed to the
15 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
16 cer or person with which or with whom the document is required to be
17 filed or to which or to whom such payment is required to be made. If any
18 document is sent by United States registered mail, such registration
19 shall be prima facie evidence that such document was delivered to the
20 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
21 cer or person to which or to whom addressed, and the date of registra-
22 tion shall be deemed the postmark date. The commissioner of finance and,
23 where relevant, the tax appeals tribunal are authorized to provide by
24 regulation the extent to which, such provisions with respect to prima
25 facie evidence of delivery and the postmark date, shall apply to certi-
26 fied mail. Except as provided in subdivision f of this section, this
27 subdivision shall apply in the case of postmarks not made by the United
28 States postal service only if and to the extent provided by regulation
29 of the commissioner of finance or, where relevant, the tax appeals
30 tribunal.
31 e. When the last day prescribed under authority of this chapter,
32 including any extension of time, for performing any act falls on a
33 Saturday, Sunday or legal holiday in the state, the performance of such
34 act shall be considered timely if it is performed on the next succeeding
35 day which is not a Saturday, Sunday or legal holiday.
36 f. (1) Any reference in subdivision d of this section to the United
37 States mail shall be treated as including a reference to any delivery
38 service designated by the secretary of the treasury of the United States
39 pursuant to section seventy-five hundred two of the internal revenue
40 code and any reference in subdivision d of this section to a United
41 States postmark shall be treated as including a reference to any date
42 recorded or marked in the manner described in section seventy-five
43 hundred two of the internal revenue code by a designated delivery
44 service. If the commissioner of finance finds that any delivery service
45 designated by such secretary is inadequate for the needs of the city,
46 the commissioner of finance may withdraw such designation for purposes
47 of this title. The commissioner of finance may also designate additional
48 delivery services meeting the criteria of section seventy-five hundred
49 two of the internal revenue code for purposes of this title, or may
50 withdraw any such designation if the commissioner of finance finds that
51 a delivery service so designated is inadequate for the needs of the
52 city. Any reference in subdivision d of this section to the United
53 States mail shall be treated as including a reference to any delivery
54 service designated by the commissioner of finance and any reference in
55 subdivision d of this section to a United States postmark shall be
56 treated as including a reference to any date recorded or marked in the
S. 8578 1177
1 manner described in section seventy-five hundred two of the internal
2 revenue code by a delivery service designated by the commissioner of
3 finance, provided, however, any withdrawal of designation or additional
4 designation by the commissioner of finance shall not be effective for
5 purposes of service upon the tax appeals tribunal, unless and until such
6 withdrawal of designation or additional designation is ratified by the
7 president of the tax appeals tribunal.
8 (2) Any equivalent of registered or certified mail designated by the
9 United States secretary of the treasury, or as may be designated by the
10 commissioner of finance pursuant to the same criteria used by such
11 secretary for such designations pursuant to section seventy-five hundred
12 two of the internal revenue code, shall be included within the meaning
13 of registered or certified mail as used in subdivision d of this
14 section. If the commissioner of finance finds that any equivalent of
15 registered or certified mail designated by such secretary or the commis-
16 sioner of finance is inadequate for the needs of the city, the commis-
17 sioner of finance may withdraw such designation for purposes of this
18 title, provided, however, any withdrawal of designation or additional
19 designation by the commissioner of finance shall not be effective for
20 purposes of service upon the tax appeals tribunal, unless and until such
21 withdrawal of designation or additional designation is ratified by the
22 president of the tax appeals tribunal.
23 § 11-2417 Construction and enforcement. This chapter shall be
24 construed and enforced in conformity with article twenty-nine of the tax
25 law, pursuant to which it is enacted.
26 CHAPTER 25
27 TAX ON OCCUPANCY OF HOTEL ROOMS
28 § 11-2501 Definitions. When used in this chapter the following terms
29 shall mean or include:
30 1. "Person." An individual, partnership, society, association, joint-
31 stock company, corporation, estate, receiver, trustee, assignee, refer-
32 ee, or any other person acting in a fiduciary or representative capaci-
33 ty, whether appointed by a court or otherwise and any combination
34 thereof.
35 2. "Operator." Any person operating a hotel in the city of Staten
36 Island, including, but not limited to, the owner or proprietor of such
37 premises, lessee, sublessee, mortgagee in possession, licensee or any
38 other person otherwise operating such hotel.
39 3. "Occupant." A person who, for a consideration, uses, possesses, or
40 has the right to use or possess, any room or rooms in a hotel under any
41 lease, concession, permit, right of access, license to use or other
42 agreement, or otherwise. "Right to use or possess" includes the rights
43 of a room remarketer as described in subdivision twelve of this section.
44 4. "Occupancy." The use or possession, or the right to the use or
45 possession of any room or rooms in a hotel, or the right to the use or
46 possession of the furnishings or to the services and accommodations
47 accompanying the use and possession of the room or rooms. "Right to use
48 or possess" includes the rights of a room remarketer as described in
49 subdivision twelve of this section.
50 5. "Hotel." A building or portion of it which is regularly used and
51 kept open as such for the lodging of guests. The term "hotel" includes
52 an apartment hotel, a motel, boarding house or club, whether or not
53 meals are served.
S. 8578 1178
1 6. "Room." Any room of any kind, other than a bathroom or lavatory, in
2 any part or portion of a hotel which is available for, or let out for,
3 use or possession for any purpose other than a place of assembly as
4 defined in section 27-232 of the code of the preceding municipality.
5 7. "Rent." The consideration received for occupancy valued in money,
6 whether received in money or otherwise, including all receipts, cash,
7 credits, and property or services of any kind or nature, including any
8 service or other charge or amount required to be paid as a condition for
9 occupancy, and also any amount for which credit is allowed by the opera-
10 tor or room remarketer to the occupant, without any deduction therefrom
11 whatsoever, whether received by the operator or a room remarketer or
12 another person on behalf of either of them.
13 8. "Permanent resident." Any occupant of any room or rooms in a hotel
14 for at least one hundred eighty consecutive days shall be considered a
15 permanent resident with regard to the period of such occupancy.
16 9. "Commissioner of finance." The commissioner of finance of the city.
17 10. "Comptroller." The comptroller of the city.
18 11. "Tax appeals tribunal." The tax appeals tribunal established by
19 section one hundred sixty-eight of the charter of the preceding munici-
20 pality as it existed January first, nineteen hundred ninety-four.
21 12. "Room remarketer." A person who reserves, arranges for, conveys,
22 or furnishes occupancy, whether directly or indirectly, to an occupant
23 for rent in an amount determined by such room remarketer, directly or
24 indirectly, whether pursuant to a written or other agreement. Such
25 person's ability or authority to reserve, arrange for, convey, or
26 furnish occupancy, directly or indirectly, and to determine rent there-
27 for, shall be the "rights of a room remarketer". A room remarketer is
28 not a permanent resident with respect to a room for which such person
29 has the rights of a room remarketer.
30 § 11-2502 Imposition of tax. a. (1) On and after July first, nineteen
31 hundred seventy until and including August thirty-first, nineteen
32 hundred eighty, there is hereby imposed and there shall be paid a tax
33 for every occupancy of each room in a hotel in the city of Staten Island
34 at the rates set forth in, and determined in accordance with the follow-
35 ing table:
36 If the rent per day for the room is: The tax is:
37 Less than $10 ............................................. $.25 per day
38 $10 or more, but less than $15 ............................ $.50 per day
39 $15 or more, but less than $20 ............................ $.75 per day
40 $20 or more .............................................. $1.00 per day
41 (2) On and after September first, nineteen hundred eighty, there is
42 hereby imposed and there shall be paid a tax for every occupancy of each
43 room in a hotel in the city of Staten Island at the rates set forth in,
44 and determined in accordance with, the following table:
45 If the rent per day for the room is: The tax is:
46 $10 or more, but less than $20 ............................ $.50 per day
47 $20 or more, but less than $30 ........................... $1.00 per day
48 $30 or more, but less than $40 ........................... $1.50 per day
49 $40 or more .............................................. $2.00 per day
50 Where a person occupies a room for less than a full day and pays less
51 than the rent for a full day, the tax shall nevertheless be the same
52 amount as would be due had such person occupied the room for a full day
53 at the rent for a full day.
54 (3) In addition to the tax imposed by paragraph two of this subdivi-
55 sion, there is hereby imposed and there shall be paid a tax for every
56 occupancy of each room in a hotel in the city (A) at the rate of five
S. 8578 1179
1 percent of the rent or charge per day for each such room up to and
2 including August thirty-first, nineteen hundred ninety, (B) at the rate
3 of six percent of the rent or charge per day for each such room on and
4 after September first, nineteen hundred ninety and before December
5 first, nineteen hundred ninety-four, (C) at the rate of five percent of
6 the rent or charge per day for each such room on and after December
7 first, nineteen hundred ninety-four and before March first, two thousand
8 nine, (D) at the rate of five and seven-eighths percent of the rent or
9 charge per day for each such room on and after March first, two thousand
10 nine and before December first, two thousand thirteen, (E) at the rate
11 of five percent of the rent or charge per day for each such room on and
12 after December first, two thousand thirteen and before December twenti-
13 eth, two thousand thirteen, (F) at the rate of five and seven-eighths
14 percent of the rent or charge per day for each such room on and after
15 December twentieth, two thousand thirteen and before December first, two
16 thousand twenty-three, and (G) at the rate of five percent of the rent
17 or charge per day for each such room on and after December first, two
18 thousand twenty-three.
19 (4) (A) When occupancy is provided, for a single consideration, with
20 property, services, amusement charges, or any other items, the separate
21 sale of which is not subject to tax under this chapter, and the rent
22 paid for such occupancy does not qualify for the exemption in this
23 subdivision, the entire consideration shall be treated as rent subject
24 to tax under paragraph one of this subdivision; provided, however, that
25 where the amount of the rent for occupancy is stated separately from the
26 price of such property, services, amusement charges or other items on
27 any sales slip, invoice, receipt, or other statement given the occupant
28 and such rent is reasonable in relation to the value of such property,
29 services, amusement charges, or other items, only such separately stated
30 rent will be subject to tax under this subdivision. (B) In regard to
31 the collection of tax on occupancies by remarketers, when occupancy is
32 provided, for a single consideration, with property, services, amusement
33 charges, or any other items, whether or not such other items are taxa-
34 ble, the rent portion of the consideration for such sale shall be
35 computed as follows: the total consideration for the sale multiplied by
36 a fraction, the numerator of which shall be the consideration paid to
37 the hotel for the occupancy and the denominator of which shall be the
38 consideration paid to the hotel for the occupancy plus the consideration
39 paid to the providers of the other items being sold, or by any other
40 reasonable method pursuant to which the rent portion of consideration
41 would be no less than the computation of rent portion of consideration
42 under subparagraph (A) of this paragraph. Nothing in this subdivision
43 shall be construed to subject to tax or exempt from tax any service or
44 property or amusement charge or other items otherwise subject to tax or
45 exempt from tax under this chapter.
46 (5) A room remarketer shall be allowed a refund or credit against the
47 taxes collected and required to be remitted pursuant to section 11-2505
48 of this chapter in the amount of the tax it paid to the operator of the
49 hotel or another room remarketer under this subdivision. Provided,
50 however, that in order to qualify for a refund or credit under this
51 paragraph with respect to any quarterly period, as described in subdivi-
52 sion a of section 11-2504 of this chapter, the room remarketer must,
53 with respect to such quarter, (A) be registered for hotel room occupancy
54 tax purposes under section 11-2514 of this chapter, and (B) collect the
55 taxes imposed by paragraphs two and three of this subdivision. Subject
56 to the conditions and limitations of this paragraph, the provisions of
S. 8578 1180
1 section 11-2507 of this chapter shall apply to refunds or credits under
2 this paragraph.
3 (6) Where the rent is paid or charged or billed, or falls due on
4 either a weekly, monthly or other term basis, the daily rent upon which
5 the tax is determined shall be the result obtained by dividing the rent
6 for such term by the number of days in such term. Where the rent is for
7 more than one room, including but not limited to a suite of rooms, the
8 daily rent per room upon which tax is determined shall be calculated by
9 multiplying the daily rent for the group of rooms by a fraction, the
10 numerator of which shall be the daily rent for the particular room, or a
11 similar room, when such room is rented alone with similar bath facili-
12 ties, and the denominator of which shall be the total of the daily rent
13 for the individual rooms in the group of rooms, or similar rooms, when
14 such rooms are rented alone with similar bath facilities. In any case in
15 which it is not possible to determine the daily rent per room in the
16 manner described under this paragraph, the commissioner of finance shall
17 prescribe methods for making such determination.
18 b. (1) No tax shall be imposed under this chapter upon a permanent
19 resident.
20 (2) For purposes of this subdivision, an occupant who is eligible to
21 request and has requested a lease pursuant to the provisions of para-
22 graph two of subdivision (a) of section 2522.5 of the rent stabilization
23 regulations promulgated by the division of housing and community renewal
24 of the state of New York, shall tentatively be accorded the status of
25 permanent resident as of the date of such request, notwithstanding that
26 such occupant has not met the one hundred eighty-consecutive-day
27 requirement contained in subdivision eight of section 11-2501 of this
28 chapter as of such date. In the case of such an occupant, the operator
29 or room remarketer shall not collect the taxes imposed by this chapter
30 for any day, commencing with the date such lease is requested, which
31 falls within a period of continuous occupancy by such occupant of a room
32 or rooms in the hotel. Provided, however, if such occupant ceases to
33 occupy a room or rooms in the hotel prior to the completion of one
34 hundred eighty consecutive days of occupancy, any taxes not collected
35 theretofore by reason of the provisions of this paragraph shall become
36 immediately due and payable on the date of cessation of occupancy and
37 shall be collected by the operator or room remarketer from such occu-
38 pant. In the event, however, that the operator or room remarketer is
39 unable to collect such taxes from the occupant, the operator or room
40 remarketer shall not be liable to the city for such taxes. The
41 provisions of this paragraph shall apply with respect to leases
42 requested on or after September first, nineteen hundred ninety.
43 c. No tax shall be imposed under this chapter upon any organization
44 described in subdivision (a) of section eleven hundred sixteen of the
45 tax law to the extent such organization is not subject to the tax
46 imposed under subdivision (e) of section eleven hundred five of the tax
47 law.
48 d. (1) No tax shall be imposed under this chapter upon any person
49 occupying any room or rooms in a hotel solely and directly as a result
50 of such person's involuntary displacement from premises by the attack on
51 the World Trade Center on September eleventh, two thousand one, provided
52 such premises were not subject to the tax imposed by this section or the
53 tax imposed under section eleven hundred seven of the tax law.
54 (2) Where an occupant claims exemption from the tax under the
55 provisions of paragraph one of this subdivision, the rent shall be
56 deemed taxable under this chapter unless the operator shall receive from
S. 8578 1181
1 the occupant claiming such exemption a signed written statement describ-
2 ing the specific circumstances providing the basis for such claim and
3 containing such other information as the commissioner of finance may
4 require. The operator shall retain such statement and provide it to the
5 commissioner of finance upon request.
6 e. Where any corporation, or association, or trust, or community
7 chest, fund or foundation, organized and operated exclusively for reli-
8 gious, charitable, or educational purposes, or for the prevention of
9 cruelty to children or animals, and no part of the net earnings of which
10 inures to the benefit of any private shareholder or individual and no
11 substantial part of the activities of which is carrying on propaganda,
12 or otherwise attempting to influence legislation, carries on its activ-
13 ities in furtherance of any of the purposes for which it was organized,
14 in premises in which, as part of said activities, it operates a hotel,
15 occupancy of rooms in said premises and rents therefrom received by such
16 corporation or association shall not be subject to tax under this chap-
17 ter. Nothing in this subdivision shall be deemed to include an organ-
18 ization operated for the primary purpose of carrying on a trade or busi-
19 ness for profit, whether or not all of its profits are payable to one or
20 more organizations described in this subdivision.
21 f. The tax to be collected shall be stated and charged separately from
22 the rent and shown separately on any record thereof, at the time when
23 the occupancy is arranged or contracted for and charged for and upon
24 every evidence of occupancy or any bill or statement or charge made for
25 said occupancy issued or delivered by the operator or room remarketer.
26 (1) Where an occupant rents a room directly from an operator, the tax
27 shall be paid by the occupant to the operator as trustee for and on
28 account of the city, and the operator shall be liable for the collection
29 of the tax on the rent and for the payment of the tax on the rent.
30 (2) The operator or room remarketer and any officer of any corporate
31 operator or room remarketer shall be personally liable for the portion
32 of the tax collected or required to be collected under this chapter, and
33 the operator shall have the same right in respect to collecting the tax
34 from the occupant, or in respect to nonpayment of the tax by the occu-
35 pant as if the tax were a part of the rent for the occupancy payable at
36 the time such tax shall become due and owing, including all rights of
37 eviction, dispossession, repossession and enforcement of any innkeeper's
38 lien that he or she may have in the event of nonpayment of rent by the
39 occupant; provided however, that the commissioner of finance shall be
40 joined as a party in any action or proceeding brought by the operator to
41 collect or enforce collection of the tax.
42 g. Where the occupant has failed to pay and the operator or room
43 remarketer has failed to collect a tax as imposed by this chapter, then
44 in addition to all other rights, obligations and remedies provided, such
45 tax shall be payable by the occupant directly to the commissioner of
46 finance, and it shall be the duty of the occupant to file a return ther-
47 eof with the commissioner of finance and to pay the tax imposed therein
48 to the commissioner of finance within fifteen days after such tax was
49 due.
50 h. The commissioner of finance may, wherever he or she deems it neces-
51 sary for the proper enforcement of this chapter, provide by regulation
52 that the occupant shall file returns and pay directly to the commission-
53 er of finance the tax imposed by this chapter, at such times as returns
54 are required to be filed and payment over made by the operator or room
55 remarketer.
S. 8578 1182
1 i. The tax imposed by this chapter shall be paid upon any occupancy on
2 and after July first, nineteen hundred seventy, although such occupancy
3 is had pursuant to a contract, lease or other arrangement made prior to
4 such effective date. Where rent is paid, or charged or billed, or falls
5 due on either a weekly, monthly, or other term basis, the rent so paid,
6 charged, billed or falling due shall be subject to the tax imposed by
7 this chapter to the extent that it covers any portion of the period on
8 and after July first, nineteen hundred seventy, and such payment, bill,
9 charge or rent due shall be apportioned on the basis of the ratio of the
10 number of days falling within said period, to the total number of days
11 covered thereby. Where any tax has been paid pursuant to this chapter
12 upon any rent which has been ascertained to be worthless, the commis-
13 sioner of finance may by regulation provide for credit or refund of the
14 amount of such tax upon application therefor as provided in section
15 11-2507 of this chapter.
16 j. For the purpose of the proper administration of this chapter and to
17 prevent evasion of the tax hereby imposed, it shall be presumed that all
18 rents are subject to tax until the contrary is established, and the
19 burden of proving that a rent for occupancy is not taxable under this
20 chapter shall be upon the operator, the room remarketer, or the occu-
21 pant. Where an occupant claims exemption from the tax under the
22 provisions of subdivision c of this section, the rent shall be deemed
23 taxable under this chapter unless the operator or room remarketer shall
24 receive from the occupant claiming such exemption a copy of the exempt
25 organization certificate that is necessary to obtain exemption from the
26 tax imposed under subdivision (e) of section eleven hundred five of the
27 tax law, together with a certificate duly executed by the organization
28 named in such certificate certifying that the occupant is its agent,
29 representative or employee and that his or her occupancy is paid or to
30 be paid by, and is necessary or required in the course of or in
31 connection with the affairs of said organization.
32 k. No operator or room remarketer shall advertise or hold out to the
33 public in any manner, directly or indirectly, that the tax imposed by
34 this chapter is not considered as a mandatory addition to the rent
35 charged to the occupant.
36 1. An occupancy that an operator conveys or furnishes to a room
37 remarketer that the room remarketer intends to convey or furnish,
38 directly or indirectly, to an occupant for rent shall be exempt from the
39 taxes imposed by this section, provided that such room remarketer
40 furnishes the operator with a certificate in such form and containing
41 such information as may be prescribed by the commissioner of finance.
42 The operator shall retain such statement and provide it to the commis-
43 sioner of finance upon request.
44 § 11-2503 Records to be kept. a. Every operator and every room
45 remarketer shall keep records of every occupancy and of all rent paid,
46 charged or due thereon and of the tax payable thereon, in such form as
47 the commissioner of finance may by regulation require. Such records
48 shall be available for inspection and examination at any time upon
49 demand by the commissioner of finance or his or her duly authorized
50 agent or employee and shall be preserved for a period of three years,
51 except that the commissioner of finance may consent to their destruction
52 within that period or may require that they be kept longer.
53 b. Notwithstanding the provisions of sections three hundred five and
54 three hundred nine of the state technology law or any other law, the
55 commissioner may require any person who has elected to maintain in an
56 electronic format any portion of the records required to be maintained
S. 8578 1183
1 by that person under this chapter, to make the electronic records avail-
2 able and accessible to the commissioner, notwithstanding that the
3 records are also maintained in a hard copy format.
4 § 11-2504 Returns. a. Every operator and every room remarketer shall
5 file with the commissioner of finance a return of occupancy and of
6 rents, and of the taxes payable thereon, for the quarterly periods
7 ending on the last day of February, May, August and November of each
8 year. Such returns shall be filed within twenty days after the end of
9 the quarterly period covered thereby. The commissioner of finance may
10 permit or require returns to be made by other periods and upon such
11 dates as he or she may specify. If the commissioner of finance deems it
12 necessary in order to insure the payment of the tax imposed by this
13 chapter, he or she may require returns to be made for shorter periods
14 than those prescribed pursuant to the provisions of this subdivision and
15 upon such dates as he or she may specify.
16 b. The forms of returns shall be prescribed by the commissioner of
17 finance and shall contain such information as he or she may deem neces-
18 sary for the proper administration of this chapter. The commissioner of
19 finance may require amended returns to be filed within twenty days after
20 notice and to contain the information specified in the notice.
21 c. If a return required by this chapter is not filed or if a return
22 when filed is incorrect or insufficient on its face the commissioner of
23 finance shall take the necessary steps to enforce the filing of such a
24 return or a corrected return.
25 § 11-2505 Payment of tax. At the time of filing a return of occupancy
26 and of rents each operator and room remarketer shall pay to the commis-
27 sioner of finance the taxes imposed by this chapter upon the rents
28 required to be included in such return, as well as all other moneys
29 collected by the operator or room remarketer acting or purporting to act
30 under the provisions of this chapter, even though it be judicially
31 determined that the tax collected is invalidly imposed. All the taxes
32 for the period for which a return is required to be filed shall be due
33 from the operator or room remarketer and payable to the commissioner of
34 finance on the date limited for the filing of the return for such peri-
35 od, without regard to whether a return is filed or whether the return
36 which is filed correctly shows the amount of rents and the taxes due
37 thereon. Where the commissioner of finance in his or her discretion
38 deems it necessary to protect revenues to be obtained under this chapter
39 he or she may require any operator or room remarketer required to
40 collect the tax imposed by this chapter to file with him or her a bond,
41 issued by a surety company authorized to transact business in this state
42 and approved by the superintendent of insurance of this state as to
43 solvency and responsibility, in such amount as the commissioner of
44 finance may fix, to secure the payment of any tax or penalties and
45 interest due or which may become due from such operator or room remark-
46 eter. In the event that the commissioner of finance determines that an
47 operator or room remarketer is to file such bond he or she shall give
48 notice to such operator or room remarketer to that effect specifying the
49 amount of the bond required. The operator or room remarketer shall file
50 such bond within five days after the giving of such notice unless within
51 such five days the operator or room remarketer shall request in writing
52 a hearing before the commissioner of finance at which the necessity,
53 propriety and amount of the bond shall be determined by the commissioner
54 of finance. Such determination shall be final and shall be complied with
55 within fifteen days after the giving of notice thereof. In lieu of such
56 bond, securities approved by the commissioner of finance or cash in such
S. 8578 1184
1 amount as he or she may prescribe, may be deposited which shall be kept
2 in the custody of the commissioner of finance who may at any time with-
3 out notice to the depositor apply them to any tax or interest or penal-
4 ties due, and for that purpose the securities may be sold by him or her
5 at public or private sale without notice to the depositor thereof.
6 § 11-2506 Determination of tax. If a return required by this chapter
7 is not filed, or if a return when filed is incorrect or insufficient,
8 the amount of tax due shall be determined by the commissioner of finance
9 from such information as may be obtainable and, if necessary, the tax
10 may be estimated on the basis of external indices, such as number of
11 rooms, location, scale of rents, comparable rents, type of accommo-
12 dations and service, number of employees or other factors. Notice of
13 such determination shall be given to the person liable for the
14 collection and/or payment of the tax. Such determination shall finally
15 and irrevocably fix the tax unless the person against whom it is
16 assessed, within ninety days after giving of notice of such determi-
17 nation, or, if the commissioner of finance has established a concil-
18 iation procedure pursuant to section 11-124 of the code of the preceding
19 municipality and the taxpayer has requested a conciliation conference in
20 accordance therewith, within ninety days from the mailing of a concil-
21 iation decision or the date of the commissioner's confirmation of the
22 discontinuance of the conciliation proceeding, both (1) serves a peti-
23 tion upon the commissioner of finance and (2) files a petition with the
24 tax appeals tribunal for a hearing, or unless the commissioner of
25 finance of his or her own motion shall redetermine the same. Such hear-
26 ing and any appeal to the tax appeals tribunal sitting en banc from the
27 decision rendered in such hearing shall be conducted in the manner and
28 subject to the requirements prescribed by the tax appeals tribunal
29 pursuant to sections one hundred sixty-eight through one hundred seven-
30 ty-two of the charter of the preceding municipality as it existed Janu-
31 ary first, nineteen hundred ninety-four. After such hearing the tax
32 appeals tribunal shall give notice of its decision to the person against
33 whom the tax is assessed. A decision of the tax appeals tribunal
34 sitting en banc shall be reviewable for error, illegality or unconstitu-
35 tionality or any other reason whatsoever by a proceeding under article
36 seventy-eight of the civil practice law and rules if application there-
37 for is made to the supreme court by the person against whom the tax was
38 assessed, within four months after the giving of the notice of such tax
39 appeals tribunal decision. A proceeding under article seventy-eight of
40 the civil practice law and rules shall not be instituted by a person
41 liable for the tax unless: (a) the amount of any tax sought to be
42 reviewed, with penalties and interest thereon, if any, shall be first
43 deposited with the commissioner of finance and there shall be filed with
44 the commissioner of finance an undertaking, issued by a surety company
45 authorized to transact business in this state and approved by the super-
46 intendent of insurance of this state as to solvency and responsibility,
47 in such amount as a justice of the supreme court shall approve, to the
48 effect that if such proceeding be dismissed or the tax confirmed, such
49 person will pay all costs and charges which may accrue in the prose-
50 cution of the proceeding; or (b) at the option of such person such
51 undertaking filed with the commissioner of finance may be in a sum
52 sufficient to cover the taxes, penalties and interest thereon stated in
53 such decision plus the costs and charges which may accrue against it in
54 the prosecution of the proceeding, in which event such person shall not
55 be required to deposit such taxes, penalties and interest as a condition
56 precedent to the application.
S. 8578 1185
1 § 11-2507 Refunds. a. In the manner provided in this section the
2 commissioner of finance shall refund or credit, without interest, any
3 tax, penalty or interest erroneously, illegally or unconstitutionally
4 collected or paid if written application to the commissioner of finance
5 for such refund shall be made within one year from the payment thereof.
6 Whenever a refund or credit is made or denied by the commissioner of
7 finance, he or she shall state his or her reasons therefor and give
8 notice thereof to the taxpayer in writing. Such application may be made
9 by the occupant, operator, room remarketer or other person who has actu-
10 ally paid the tax to the commissioner of finance. Such application may
11 also be made by an operator or room remarketer who has collected and
12 paid over such tax to the commissioner of finance provided that the
13 application is made within one year of the payment by the occupant to
14 the operator or room remarketer, but no actual refund of moneys shall be
15 made to such operator or room remarketer until he or she shall first
16 establish to the satisfaction of the commissioner of finance, under such
17 regulations as the commissioner of finance may prescribe, that he or she
18 has repaid to the occupant the amount for which the application for
19 refund is made. The commissioner of finance may, in lieu of any refund
20 required to be made, allow credit therefor on payments due from the
21 applicant.
22 b. Any determination of the commissioner of finance denying a refund
23 or credit pursuant to subdivision a of this section shall be final and
24 irrevocable unless the applicant for such refund or credit, within nine-
25 ty days from the mailing of notice of such determination, or, if the
26 commissioner of finance has established a conciliation procedure pursu-
27 ant to section 11-124 of the code of the preceding municipality and the
28 applicant has requested a conciliation conference in accordance there-
29 with, within ninety days from the mailing of a conciliation decision or
30 the date of the commissioner's confirmation of the discontinuance of the
31 conciliation proceeding, both (1) serves a petition upon the commission-
32 er of finance and (2) files a petition with the tax appeals tribunal for
33 a hearing. Such petition for a refund or credit, made as provided in
34 this section, shall be deemed an application for a revision of any tax,
35 penalty or interest complained of. Such hearing and any appeal to the
36 tax appeals tribunal sitting en banc from the decision rendered in such
37 hearing shall be conducted in the manner and subject to the requirements
38 prescribed by the tax appeals tribunal pursuant to sections one hundred
39 sixty-eight through one hundred seventy-two of the charter of the
40 preceding municipality as it existed January first, nineteen hundred
41 ninety-four. After such hearing, the tax appeals tribunal shall give
42 notice of its decision to the applicant and to the commissioner of
43 finance. The applicant shall be entitled to review such decision of the
44 tax appeals tribunal sitting en banc by a proceeding pursuant to article
45 seventy-eight of the civil practice law and rules, provided such
46 proceeding is instituted within four months after the giving of the
47 notice of such decision, and provided, in the case of an application by
48 a person liable for the tax, that a final determination of tax was not
49 previously made. Such a proceeding shall not be instituted by a person
50 liable for the tax unless an undertaking is filed with the commissioner
51 of finance in such amount and with such sureties as a justice of the
52 supreme court shall approve to the effect that if such proceeding be
53 dismissed or the tax confirmed, such person will pay all costs and
54 charges which may accrue in the prosecution of such proceeding.
55 c. A person shall not be entitled to a revision, refund or credit
56 under this section of a tax, interest or penalty which had been deter-
S. 8578 1186
1 mined to be due pursuant to the provisions of section 11-2506 of this
2 chapter where he or she has had a hearing or an opportunity for a hear-
3 ing, as provided in said section, or has failed to avail himself or
4 herself of the remedies therein provided. No refund or credit shall be
5 made of a tax, interest or penalty paid after a determination by the
6 commissioner of finance made pursuant to section 11-2506 of this chapter
7 unless it be found that such determination was erroneous, illegal or
8 unconstitutional or otherwise improper, by the tax appeals tribunal
9 after a hearing or of the commissioner of finance's own motion, or, if
10 such tax appeals tribunal affirms in whole or in part the determination
11 of the commissioner of finance, in a proceeding under article seventy-
12 eight of the civil practice law and rules, pursuant to the provision of
13 said section, in which event refund or credit without interest shall be
14 made of the tax, interest or penalty found to have been overpaid.
15 § 11-2508 Reserves. In cases where the occupant, operator or room
16 remarketer has applied for a refund and has instituted a proceeding
17 under article seventy-eight of the civil practice law and rules to
18 review a determination adverse to such occupant, operator or room
19 remarketer on his or her application for refund, the comptroller shall
20 set up appropriate reserves to meet any decision adverse to the city.
21 § 11-2509 Remedies exclusive. The remedies provided by sections
22 11-2506 and 11-2507 of this chapter shall be the exclusive remedies
23 available to any person for the review of tax liability imposed by this
24 chapter; and no determination or proposed determination of tax or deter-
25 mination on any application for refund by the commissioner of finance,
26 nor any decision by the tax appeals tribunal or any of its administra-
27 tive law judges, shall be enjoined or reviewed by an action for declara-
28 tory judgment, and action for money had and received or by any action or
29 proceeding other than, in the case of a decision by the tax appeals
30 tribunal sitting en banc, a proceeding in the nature of a certiorari
31 proceeding under article seventy-eight of the civil practice law and
32 rules; provided, however, that a taxpayer may proceed by declaratory
33 judgment if he or she institutes suit within thirty days after a defi-
34 ciency assessment is made and pays the amount of the deficiency assess-
35 ment to the commissioner of finance prior to the institution of such
36 suit and posts a bond for costs as provided in section 11-2506 of this
37 chapter.
38 § 11-2510 Proceedings to recover tax. a. Whenever any operator or room
39 remarketer or any officer of a corporate operator or room remarketer or
40 any occupant or other person shall fail to collect and pay over any tax
41 and/or to pay any tax, penalty or interest imposed by this chapter as
42 provided, the corporation counsel shall, upon the request of the commis-
43 sioner of finance bring or cause to be brought an action to enforce the
44 payment of the same on behalf of the city of Staten Island in any court
45 of the state of New York or of any other state or of the United States.
46 If, however, the commissioner of finance in his or her discretion
47 believes that any such operator, or room remarketer, officer, occupant
48 or other person is about to cease business, leave the state or remove or
49 dissipate the assets out of which the tax, penalties or interest might
50 be satisfied, and that any such tax, penalty or interest will not be
51 paid when due, he or she may declare such tax, penalty or interest to be
52 immediately due and payable and may issue a warrant immediately.
53 b. As an additional or alternate remedy, the commissioner of finance
54 may issue a warrant, directed to the city sheriff commanding him or her
55 to levy upon and sell the real and personal property of the operator or
56 room remarketer or officer of a corporate operator or room remarketer or
S. 8578 1187
1 of the occupant or other person liable for the tax, which may be found
2 within the city for the payment of the amount thereof, with any penal-
3 ties and interest, and the cost of executing the warrant, and to return
4 such warrant to the commissioner of finance and to pay to him or her the
5 money collected by virtue thereof within sixty days after the receipt of
6 such warrant. The city sheriff shall within five days after the receipt
7 of the warrant file with the county clerk a copy thereof, and thereupon
8 such clerk shall enter in the judgment docket the name of the person
9 mentioned in the warrant and the amount of the tax, penalties and inter-
10 est for which the warrant is issued and the date when such copy is
11 filed. Thereupon the amount of such warrant so docketed shall become a
12 lien upon the title to and interest in real and personal property of the
13 person against whom the warrant is issued. The city sheriff shall then
14 proceed upon the warrant, in the same manner, and with like effect, as
15 that provided by law in respect to executions issued against property
16 upon judgments of a court of record, and for services in executing the
17 warrant such sheriff shall be entitled to the same fees, which he or she
18 may collect in the same manner. In the discretion of the commissioner of
19 finance a warrant of like terms, force and effect may be issued and
20 directed to any officer or employee of the department of finance, and in
21 the execution thereof such officer or employee shall have all the powers
22 conferred by law upon sheriffs, but shall be entitled to no fee or
23 compensation in excess of the actual expenses paid in the performance of
24 such duty. If a warrant is returned not satisfied in full, the commis-
25 sioner of finance may from time to time issue new warrants and shall
26 also have the same remedies to enforce the amount due thereunder as if
27 the city had recovered judgment therefor and execution thereon had been
28 returned unsatisfied.
29 c. Whenever an operator shall make a sale, transfer, or assignment in
30 bulk of any part or the whole of such operator's hotel or of his or her
31 lease, license or other agreement or right to possess or operate such
32 hotel, or of the equipment, furnishings, fixtures, supplies or stock of
33 merchandise, or of the said premises or lease, license or other agree-
34 ment or right to possess or operate such hotel and the equipment,
35 furnishings, fixtures, supplies and stock of merchandise pertaining to
36 the conduct or operation of said hotel, otherwise than in the ordinary
37 and regular prosecution of business, the purchaser, transferee or assig-
38 nee shall at least ten days before taking possession of the subject of
39 said sale, transfer or assignment, or paying therefor, notify the
40 commissioner of finance by registered mail of the proposed sale and of
41 the price, terms and conditions thereof whether or not the seller,
42 transferor or assignor, has represented to, or informed the purchaser,
43 transferee or assignee that it owes any tax pursuant to this chapter,
44 and whether or not the purchaser, transferee or assignee has knowledge
45 that such taxes are owing, and whether any such taxes are in fact owing.
46 Whenever the purchaser, transferee or assignee shall fail to give
47 notice to the commissioner of finance as required by the opening para-
48 graph of this subdivision, or whenever the commissioner of finance shall
49 inform the purchaser, transferee or assignee that a possible claim for
50 such tax or taxes exists, any sums of money, property or choses in
51 action, or other consideration, which the purchaser, transferee or
52 assignee is required to transfer over to the seller, transferor or
53 assignor shall be subject to a first priority right and lien for any
54 such taxes theretofore or thereafter determined to be due from the sell-
55 er, transferor or assignor to the city, and the purchaser, transferee or
56 assignee is forbidden to transfer to the seller, transferor or assignor
S. 8578 1188
1 any such sums of money, property or choses in action to the extent of
2 the amount of the city's claim. For failure to comply with the
3 provisions of this subdivision, the purchaser, transferee or assignee,
4 in addition to being subject to the liabilities and remedies imposed
5 under the provisions of article six of the uniform commercial code,
6 shall be personally liable for the payment to the city of any such taxes
7 theretofore or thereafter determined to be due to the city from the
8 seller, transferor or assignor, and such liability may be assessed and
9 enforced in the same manner as the liability for tax under this chapter.
10 d. The commissioner of finance, if he or she finds that the interests
11 of the city will not thereby be jeopardized, and upon such conditions as
12 the commissioner of finance may require, may release any property from
13 the lien of any warrant or vacate such warrant for unpaid taxes, addi-
14 tions to tax, penalties and interest filed pursuant to subdivision b of
15 this section, and such release or vacating of the warrant may be
16 recorded in the office of any recording officer in which such warrant
17 has been filed. The clerk shall thereupon cancel and discharge as of the
18 original date of docketing the vacated warrant.
19 § 11-2511 General powers of the commissioner of finance. In addition
20 to the powers granted to the commissioner of finance in this chapter, he
21 or she is hereby authorized and empowered:
22 1. To make, adopt and amend rules and regulations appropriate to the
23 carrying out of this chapter and the purposes thereof;
24 2. To extend, for cause shown, the time for filing any return for a
25 period not exceeding thirty days; and to compromise disputed claims in
26 connection with the taxes hereby imposed;
27 3. To request information from the tax commission of the state of New
28 York or the treasury department of the United States relative to any
29 person; and to afford information to such tax commission or such treas-
30 ury department relative to any person, any other provision of this chap-
31 ter to the contrary notwithstanding;
32 4. To delegate his or her functions under this section to a commis-
33 sioner or deputy commissioner in the department of finance or to any
34 employee or employees of the department of finance;
35 5. To prescribe methods for determining the rents for occupancy and to
36 determine the taxable and non-taxable rents;
37 6. To require any operator within the city to keep detailed records of
38 the nature and type of hotel maintained and the nature and type of
39 service rendered, and to require any operator or room remarketer to keep
40 detailed records of the rooms available and rooms occupied daily, leases
41 or occupancy contracts or arrangements, rents received, charged and
42 accrued, the names and addresses of the occupants, whether or not any
43 occupancy is claimed to be subject to the tax imposed by this chapter,
44 and to furnish such information upon request to the commissioner of
45 finance;
46 7. To assess, determine, revise and readjust the taxes imposed under
47 this chapter.
48 § 11-2512 Administration of oaths and compelling testimony. a. The
49 commissioner of finance, his or her employees or agents duly designated
50 and authorized by him or her, the tax appeals tribunal and any of its
51 duly designated and authorized employees or agents shall have power to
52 administer oaths and take affidavits in relation to any matter or
53 proceeding in the exercise of their powers and duties under this chap-
54 ter. The commissioner of finance and the tax appeals tribunal shall
55 have power to subpoena and require the attendance of witnesses and the
56 production of books, papers and documents to secure information perti-
S. 8578 1189
1 nent to the performance of the duties of the commissioner or the tax
2 appeals tribunal under this chapter and of the enforcement of this chap-
3 ter and to examine them in relation thereto, and to issue commissions
4 for the examination of witnesses who are out of the state or unable to
5 attend before such commissioner or tax appeals tribunal or excused from
6 attendance.
7 b. A justice of the supreme court either in court or at chambers shall
8 have power summarily to enforce by proper proceedings the attendance and
9 testimony of witnesses and the production and examination of books,
10 papers and documents called for by the subpoena of the commissioner of
11 finance or the tax appeals tribunal under this chapter.
12 c. Cross-reference; criminal penalties. For failure to obey subpoenas
13 or for testifying falsely, see section 11-4007 of this title; for
14 supplying false or fraudulent information, see section 11-4009 of this
15 title.
16 d. The officers who serve the summons or subpoena of the commissioner
17 of finance or the tax appeals tribunal and witnesses attending in
18 response thereto shall be entitled to the same fees as are allowed to
19 officers and witnesses in civil cases in courts of record, except as
20 otherwise provided under this section. Such officers shall be the city
21 sheriff and his or her duly appointed deputies or any officers or
22 employees of the department of finance or the tax appeals tribunal,
23 designated to serve such process.
24 § 11-2513 Reference to tax. Whenever reference is made in placards
25 or advertisements or in any other publication to this tax, such refer-
26 ence shall be substantially in the following form: "city tax on occupan-
27 cy of hotel rooms", except that in any bill, receipt, statement or other
28 evidence or memorandum of occupancy or rent charge issued or employed by
29 the operator the words "city tax" will suffice.
30 § 11-2514 Registration. By June thirtieth, nineteen hundred seventy,
31 or in the case of operators or room remarketers commencing business or
32 opening new hotels after such date, within three days after such
33 commencement or opening, every operator or room remarketer shall file
34 with the commissioner of finance a certificate of registration in a form
35 prescribed by the commissioner of finance. The commissioner of finance
36 shall within five days after such registration issue without charge to
37 each operator or room remarketer a certificate of authority empowering
38 such operator or room remarketer to collect the tax from the occupant
39 and duplicate thereof for each additional hotel of such operator or room
40 remarketer. Each certificate or duplicate shall state the hotel to
41 which it is applicable. Such certificates of authority shall be promi-
42 nently displayed by the operator or room remarketer in such manner that
43 it may be seen and come to the notice of all occupants and persons seek-
44 ing occupancy. Such certificates shall be non-assignable and nontrans-
45 ferable and shall be surrendered immediately to the commissioner of
46 finance upon the cessation of business at the hotel named or upon its
47 sale or transfer, or upon cessation of business of the named room
48 remarketer.
49 § 11-2515 Interest and penalties. (a) Interest on underpayments. If
50 any amount of tax is not paid or paid over on or before the last date
51 prescribed for payment, without regard to any extension of time granted
52 for payment, interest on such amount at the rate set by the commissioner
53 of finance pursuant to subdivision (g) of this section, or, if no rate
54 is set, at the rate of seven and one-half percent per annum, shall be
55 paid for the period from such last date to the date of payment. In
56 computing the amount of interest to be paid, such interest shall be
S. 8578 1190
1 compounded daily. Interest under this subdivision shall not be paid if
2 the amount thereof is less than one dollar.
3 (b) (1) Failure to file return. (A) In case of failure to file a
4 return under this chapter on or before the prescribed date, determined
5 with regard to any extension of time for filing, unless it is shown that
6 such failure is due to reasonable cause and not due to willful neglect,
7 there shall be added to the amount required to be shown as tax on such
8 return five percent of the amount of such tax if the failure is for not
9 more than one month, with an additional five percent for each additional
10 month or fraction thereof during which such failure continues, not
11 exceeding twenty-five percent in the aggregate.
12 (B) In the case of a failure to file a return of tax within sixty days
13 of the date prescribed for filing of such return, determined with regard
14 to any extension of time for filing, unless it is shown that such fail-
15 ure is due to reasonable cause and not due to willful neglect, the addi-
16 tion to tax under subparagraph (A) of this paragraph shall not be less
17 than the lesser of one hundred dollars or one hundred percent of the
18 amount required to be shown as tax on such return.
19 (C) For purposes of this paragraph, the amount of tax required to be
20 shown on the return shall be reduced by the amount of any part of the
21 tax which is paid on or before the date prescribed for payment of the
22 tax and by the amount of any credit against the tax which may be claimed
23 upon the return.
24 (2) Failure to pay tax shown on return. In case of failure to pay the
25 amount shown as tax on a return required to be filed under this chapter
26 on or before the prescribed date, determined with regard to any exten-
27 sion of time for payment, unless it is shown that such failure is due to
28 reasonable cause and not due to willful neglect, there shall be added to
29 the amount shown as tax on such return one-half of one percent of the
30 amount of such tax if the failure is not for more than one month, with
31 an additional one-half of one percent for each additional month or frac-
32 tion thereof during which such failure continues, not exceeding twenty-
33 five percent in the aggregate. For the purpose of computing the addition
34 for any month the amount of tax shown on the return shall be reduced by
35 the amount of any part of the tax which is paid on or before the begin-
36 ning of such month and by the amount of any credit against the tax which
37 may be claimed upon the return. If the amount of tax required to be
38 shown on a return is less than the amount shown as tax on such return,
39 this paragraph shall be applied by substituting such lower amount.
40 (3) Failure to pay tax required to be shown on return. In case of
41 failure to pay any amount in respect of any tax required to be shown on
42 a return required to be filed under this chapter which is not so shown,
43 including a determination made pursuant to section 11-2506 of this chap-
44 ter, within ten days of the date of a notice and demand therefor, unless
45 it is shown that such failure is due to reasonable cause and not due to
46 willful neglect, there shall be added to the amount of tax stated in
47 such notice and demand one-half of one percent of such tax if the fail-
48 ure is not for more than one month, with an additional one-half of one
49 percent for each additional month or fraction thereof during which such
50 failure continues, not exceeding twenty-five percent in the aggregate.
51 For the purpose of computing the addition for any month, the amount of
52 tax stated in the notice and demand shall be reduced by the amount of
53 any part of the tax which is paid before the beginning of such month.
54 (4) Limitations on additions.
55 (A) With respect to any return, the amount of the addition under para-
56 graph one of this subdivision shall be reduced by the amount of the
S. 8578 1191
1 addition under paragraph two of this subdivision for any month to which
2 an addition applies under both paragraphs one and two. In any case
3 described in subparagraph (B) of paragraph one of this subdivision, the
4 amount of the addition under such paragraph one shall not be reduced
5 below the amount provided in such paragraph.
6 (B) With respect to any return, the maximum amount of the addition
7 permitted under paragraph three of this subdivision shall be reduced by
8 the amount of the addition under paragraph one of this subdivision,
9 determined without regard to subparagraph (B) of such paragraph one,
10 which is attributable to the tax for which the notice and demand is made
11 and which is not paid within ten days of such notice and demand.
12 (c) Underpayment due to negligence. (1) If any part of an underpayment
13 of tax is due to negligence or intentional disregard of this chapter or
14 any rules or regulations related thereto, but without intent to defraud,
15 there shall be added to the tax a penalty equal to five percent of the
16 underpayment.
17 (2) There shall be added to the tax, in addition to the amount deter-
18 mined under paragraph one of this subdivision, an amount equal to fifty
19 percent of the interest payable under subdivision (a) of this section
20 with respect to the portion of the underpayment described in such para-
21 graph one which is attributable to the negligence or intentional disre-
22 gard referred to in such paragraph one, for the period beginning on the
23 last date prescribed by law for payment of such underpayment, determined
24 without regard to any extension, and ending on the date of the assess-
25 ment of the tax, or, if earlier, the date of the payment of the tax.
26 (d) Underpayment due to fraud. (1) If any part of an underpayment of
27 tax is due to fraud, there shall be added to the tax a penalty equal to
28 two times of the underpayment.
29 (2) The penalty under this subdivision shall be in lieu of any other
30 addition to tax imposed by subdivision (b) or (c) of this section.
31 (e) Additional penalty. Any person who, with fraudulent intent, shall
32 fail to pay any tax imposed by this chapter, or to make, render, sign or
33 certify any return, or to supply any information within the time
34 required by or under this chapter, shall be liable for a penalty of not
35 more than one thousand dollars, in addition to any other amounts
36 required under this chapter to be imposed, assessed and collected by the
37 commissioner of finance. The commissioner of finance shall have the
38 power, in his or her discretion, to waive, reduce or compromise any
39 penalty under this subdivision.
40 (f) The interest and penalties imposed by this section shall be paid
41 and disposed of in the same manner as other revenues from this chapter.
42 Unpaid interest and penalties may be enforced in the same manner as the
43 tax imposed by this chapter.
44 (g)(1) Authority to set interest rates. The commissioner of finance
45 shall set the rate of interest to be paid pursuant to subdivision (a) of
46 this section, but if no such rate of interest is set, such rate shall be
47 deemed to be set at seven and one-half percent per annum. Such rate
48 shall be the rate prescribed in paragraph two of this subdivision but
49 shall not be less than seven and one-half percent per annum. Any such
50 rate set by the commissioner of finance shall apply to taxes, or any
51 portion thereof, which remain or become due on or after the date on
52 which such rate becomes effective and shall apply only with respect to
53 interest computed or computable for periods or portions of periods
54 occurring in the period in which such rate is in effect.
S. 8578 1192
1 (2) General rule. The rate of interest set under this subdivision
2 shall be the sum of (i) the federal short-term rate as provided under
3 paragraph three of this subdivision, plus (ii) seven percentage points.
4 (3) Federal short-term rate. For purposes of this subdivision:
5 (A) The federal short-term rate for any month shall be the federal
6 short-term rate determined by the United States secretary of the treas-
7 ury during such month in accordance with subsection (d) of section
8 twelve hundred seventy-four of the internal revenue code for use in
9 connection with section six thousand six hundred twenty-one of the
10 internal revenue code. Any such rate shall be rounded to the nearest
11 full percent, or, if a multiple of one-half of one percent, such rate
12 shall be increased to the next highest full percent.
13 (B) Period during which rate applies.
14 (i) In general. Except as provided in clause (ii) of this subpara-
15 graph, the federal short-term rate for the first month in each calendar
16 quarter shall apply during the first calendar quarter beginning after
17 such month.
18 (ii) Special rule for the month of September, nineteen hundred eight-
19 y-nine. The federal short-term rate for the month of April, nineteen
20 hundred eighty-nine shall apply with respect to setting the rate of
21 interest for the month of September, nineteen hundred eighty-nine.
22 (4) Publication of interest rate. The commissioner of finance shall
23 cause to be published in the City Record, and give other appropriate
24 general notice of, the interest rate to be set under this subdivision no
25 later than twenty days preceding the first day of the calendar quarter
26 during which such interest rate applies. The setting and publication of
27 such interest rate shall not be included within paragraph (a) of subdi-
28 vision five of section one thousand forty-one of the city charter of the
29 preceding municipality as it existed January first, nineteen hundred
30 ninety-four relating to the definition of a rule.
31 (h) Miscellaneous. (1) Officers of a corporate operator or room
32 remarketer and partners in a partnership which is an operator or room
33 remarketer shall be personally liable for the tax collected or required
34 to be collected by such corporation or partnership under this chapter,
35 and subject to the penalties and interest imposed by this section.
36 (2) The certificate of the commissioner of finance to the effect that
37 a tax has not been paid, that a return, bond or registration certificate
38 has not been filed, or that information has not been supplied pursuant
39 to the provisions of this chapter, shall be presumptive evidence there-
40 of.
41 (3) Cross-reference: For criminal penalties, see chapter forty of this
42 title.
43 (i) Any person required to make or maintain records under this chapter
44 who fails to make or maintain or make available to the commissioner
45 these records is subject to a penalty not to exceed one thousand dollars
46 for the first quarterly period or part thereof for which the failure
47 occurs and not to exceed five thousand dollars for each additional quar-
48 terly period or part thereof for which the failure occurs. This penalty
49 is in addition to any other penalty provided for in this chapter but may
50 not be imposed and collected more than once for failures for the same
51 quarterly period or part thereof. If the commissioner determines that a
52 failure to make or maintain or make available records in any quarterly
53 period was entirely due to reasonable cause and not to willful neglect,
54 the commissioner must remit the penalty imposed for that quarterly peri-
55 od. These penalties will be paid and disposed of in the same manner as
56 other revenues from this chapter. These penalties will be determined,
S. 8578 1193
1 assessed, collected, paid and enforced in the same manner as the tax
2 imposed by this chapter, and all the provisions of this chapter relating
3 to tax will be deemed also to apply to the penalties imposed by this
4 subdivision. For purposes of the penalty imposed by this subdivision, a
5 person will be considered to have failed to make or maintain the
6 required records when the commissioner of finance determines that the
7 records made or maintained by that person for a quarterly period do not
8 enable the commissioner to verify occupancy or the amounts received for
9 such occupancy or the taxability of that occupancy and to conduct a
10 complete audit.
11 (j) Any person required to make or maintain records under this chapter
12 who fails to present and make available these records in an auditable
13 form is subject to a penalty not to exceed one thousand dollars for each
14 quarterly period or part thereof for which records maintained by that
15 person are not presented and made available by that person in auditable
16 form, even if these records are adequate to verify credits, receipts,
17 and the taxability thereof and to perform a complete audit. This penal-
18 ty is in addition to any other penalty provided for in this chapter, but
19 will not be imposed and collected more than once for these failures for
20 the same quarterly period or part thereof. If the commissioner deter-
21 mines that any failure described in this subdivision for a quarterly
22 period was entirely due to reasonable cause and not to willful neglect,
23 the commissioner must remit the penalty imposed for that quarter. The
24 penalties imposed by this subdivision will be paid and disposed of in
25 the same manner as other revenues from this chapter. These penalties
26 will be determined, assessed, collected, paid and enforced in the same
27 manner as the tax imposed by this chapter, and all the provisions of
28 this chapter relating to tax will be deemed also to apply to the penal-
29 ties imposed by this subdivision. For purposes of the penalty imposed by
30 this subdivision, a person will be considered to have failed to present
31 and make records available in auditable form when the records presented
32 by that person for that quarter lack sufficient organization, such as by
33 date, invoice number, sales receipts, or sequential numbering, or are
34 otherwise inadequate, without reorganizing, reordering or otherwise
35 rearranging the records into an auditable form, to permit direct recon-
36 ciliation of the receipts, invoices or other source documents with the
37 entries for the quarterly period in the books and records and on the
38 returns of that person.
39 (k) Any person who, having elected to maintain in an electronic format
40 any portion or all of the records he or she is required to make and
41 maintain by this chapter, fails to present and make these records avail-
42 able and accessible to the commissioner in electronic format, is subject
43 to a penalty not to exceed five thousand dollars for each quarterly
44 period or part thereof for which these electronic records are not
45 presented and made available and accessible upon request, notwithstand-
46 ing that the records may also be maintained and available in hard copy
47 format. This penalty is in addition to any other penalty provided for in
48 this chapter, but may not be imposed and collected more than once for a
49 failure for the same quarterly period or part thereof. Provided, howev-
50 er, nothing in this subdivision will prevent the separate imposition, if
51 applicable, of any penalty imposed by subdivision (i) or (j) of this
52 section for the same quarterly period or part thereof. If the commis-
53 sioner determines that the failure to present and make electronically
54 maintained records available and accessible for a quarterly period was
55 entirely due to reasonable cause and not to willful neglect, the commis-
56 sioner must remit the penalty imposed for that quarter. These penalties
S. 8578 1194
1 will be paid and disposed of in the same manner as other revenues from
2 this chapter. These penalties will be determined, assessed, collected,
3 paid and enforced in the same manner as the tax imposed by this chapter,
4 and all the provisions of this chapter relating to tax will be deemed
5 also to apply to the penalty imposed by this subdivision. For purposes
6 of the penalty imposed by this subdivision, a failure to present and
7 make available and accessible a record maintained in electronic format
8 includes not only the denial of access to the requested records that
9 were maintained electronically, but also the failure to make available
10 to the commissioner the information, knowledge, or means necessary to
11 access and otherwise use the electronically maintained records in the
12 inspection and examination of these records.
13 (l) Aiding or assisting in the giving of fraudulent returns, reports,
14 statements or other documents. Any person who, with the intent that tax
15 be evaded, for a fee or other compensation or as an incident to the
16 performance of other services for which that person receives compen-
17 sation, aids or assists in, or procures, counsels, or advises the prepa-
18 ration or presentation under this chapter, or in connection with any
19 matter arising under this chapter, of any return, report, declaration,
20 statement or other document that is fraudulent or false as to any mate-
21 rial matter, or supplies any false or fraudulent information, whether or
22 not such falsity or fraud is with the knowledge or consent of the person
23 authorized or required to present that return, report, declaration,
24 statement or other document, will pay a penalty not exceeding five thou-
25 sand dollars. The definitions in subsection (l) of section one thousand
26 eighty-five of the tax law apply for the purposes of this penalty.
27 (m) False or fraudulent document penalty. Any taxpayer that submits a
28 false or fraudulent document to the department will be subject to a
29 penalty of one hundred dollars per document submitted, or five hundred
30 dollars per tax return submitted. This penalty will be in addition to
31 any other penalty provided by law.
32 § 11-2516 Returns to be secret. a. Except in accordance with proper
33 judicial order, or as otherwise provided by law, it shall be unlawful
34 for the commissioner of finance, any officer or employee of the depart-
35 ment of finance, any person engaged or retained on an independent
36 contract basis, the tax appeals tribunal, any commissioner or employee
37 of such tribunal, or any person who, pursuant to this section, is
38 permitted to inspect any return or to whom a copy, an abstract or a
39 portion of any return is furnished, or to whom any information contained
40 in any return is furnished, to divulge or make known in any manner the
41 rents or other information relating to the business of a taxpayer
42 contained in any return required under this chapter. The officers
43 charged with the custody of such returns shall not be required to
44 produce any of them or evidence of anything contained in them in any
45 action or proceeding in any court, except on behalf of the commissioner
46 of finance in an action or proceeding under the provisions of this chap-
47 ter or on behalf of any party to any action or proceeding under the
48 provisions of this chapter when the returns or facts shown thereby are
49 directly involved in such action or proceeding, in either of which
50 events the court may require the production of, and may admit in
51 evidence, so much of said returns or of the facts shown thereby, as are
52 pertinent to the action or proceeding and no more. Nothing in this
53 section shall be construed to prohibit the delivery to a taxpayer or his
54 or her duly authorized representative of a certified copy of any return
55 filed in connection with his or her tax; nor to prohibit the delivery of
56 such a certified copy of such return or of any information contained in
S. 8578 1195
1 or relating thereto, to the United States of America or any department
2 thereof, to the state of New York or any department thereof, or to any
3 agency or department of the city of Staten Island, provided the same is
4 requested for official business; nor to prohibit the inspection for
5 official business of such returns by the corporation counsel or other
6 legal representatives of the city or by the district attorney of any
7 county within the city; nor to prohibit the publication of statistics so
8 classified as to prevent the identification of particular returns and
9 the items thereof. Returns shall be preserved for three years and ther-
10 eafter until the commissioner of finance permits them to be destroyed.
11 b. (1) Any officer or employee of the city who willfully violates the
12 provisions of subdivision a of this section shall be dismissed from
13 office and be incapable of holding any public office for a period of
14 five years thereafter.
15 (2) Cross-reference: For criminal penalties, see chapter forty of this
16 title.
17 c. This section shall be deemed a state statute for purposes of para-
18 graph (a) of subdivision two of section eighty-seven of the public offi-
19 cers law.
20 d. Notwithstanding anything in subdivision a of this section to the
21 contrary, if a taxpayer has petitioned the tax appeals tribunal for
22 administrative review as provided in section one hundred seventy of the
23 charter of the preceding municipality as it existed January first, nine-
24 teen hundred ninety-four, the commissioner of finance shall be author-
25 ized to present to the tribunal any report or return of such taxpayer,
26 or any information contained therein or relating thereto, which may be
27 material or relevant to the proceeding before the tribunal. The tax
28 appeals tribunal shall be authorized to publish a copy or a summary of
29 any decision rendered pursuant to section one hundred seventy-one of the
30 charter of the preceding municipality as it existed January first, nine-
31 teen hundred ninety-four.
32 § 11-2517 Notices and limitations of time. a. Any notice authorized or
33 required under the provisions of this chapter may be given by mailing
34 the same to the person for whom it is intended in a postpaid envelope
35 addressed to such person at the address given in the last return filed
36 by him or her pursuant to the provisions of this chapter or in any
37 application made by him or her or, if no return has been filed or appli-
38 cation made, then to such address as may be obtainable. The mailing of
39 such notice shall be presumptive evidence of the receipt of the same by
40 the person to whom addressed. Any period of time which is determined
41 according to the provisions of this chapter by the giving of notice
42 shall commence to run from the date of mailing of such notice.
43 b. The provisions of the civil practice law and rules or any other law
44 relative to limitations of time for the enforcement of a civil remedy
45 shall not apply to any proceeding or action taken by the city to levy,
46 appraise, assess, determine or enforce the collection of any tax or
47 penalty provided by this chapter. However, except in the case of a
48 wilfully false or fraudulent return with intent to evade the tax, no
49 assessment of additional tax shall be made after the expiration of more
50 than three years from the date of the filing of a return; provided,
51 however, that where no return has been filed as provided by law the tax
52 may be assessed at any time.
53 c. Where, before the expiration of the period prescribed in this
54 section for the assessment of an additional tax, a taxpayer has
55 consented in writing that such period be extended, the amount of such
56 additional tax due may be determined at any time within such extended
S. 8578 1196
1 period. The period so extended may be further extended by subsequent
2 consents in writing made before the expiration of the extended period.
3 d. If any return, claim, statement, notice, application, or other
4 document required to be filed, or any payment required to be made, with-
5 in a prescribed period or on or before a prescribed date under authority
6 of any provision of this chapter is, after such period or such date,
7 delivered by United States mail to the commissioner of finance, the tax
8 appeals tribunal, bureau, office, officer or person with which or with
9 whom such document is required to be filed, or to which or to whom such
10 payment is required to be made, the date of the United States postmark
11 stamped on the envelope shall be deemed to be the date of delivery. This
12 subdivision shall apply only if the postmark date falls within the
13 prescribed period or on or before the prescribed date for the filing of
14 such document, or for making the payment, including any extension grant-
15 ed for such filing or payment, and only if such document or payment was
16 deposited in the mail, postage prepaid, properly addressed to the
17 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
18 cer or person with which or with whom the document is required to be
19 filed or to which or to whom such payment is required to be made. If any
20 document is sent by United States registered mail, such registration
21 shall be prima facie evidence that such document was delivered to the
22 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
23 cer or person to which or to whom addressed, and the date of registra-
24 tion shall be deemed the postmark date. The commissioner of finance and,
25 where relevant, the tax appeals tribunal are authorized to provide by
26 regulation the extent to which, such provisions with respect to prima
27 facie evidence of delivery and the postmark date, shall apply to certi-
28 fied mail. Except as provided in subdivision f of this section, this
29 subdivision shall apply in the case of postmarks not made by the United
30 States postal service only if and to the extent provided by regulation
31 of the commissioner of finance or, where relevant, the tax appeals
32 tribunal.
33 e. When the last day prescribed under authority of this chapter,
34 including any extension of time, for performing any act falls on a
35 Saturday, Sunday or legal holiday in the state, the performance of such
36 act shall be considered timely if it is performed on the next succeeding
37 day which is not a Saturday, Sunday or legal holiday.
38 f. (1) Any reference in subdivision d of this section to the United
39 States mail shall be treated as including a reference to any delivery
40 service designated by the secretary of the treasury of the United States
41 pursuant to section seventy-five hundred two of the internal revenue
42 code and any reference in subdivision d of this section to a United
43 States postmark shall be treated as including a reference to any date
44 recorded or marked in the manner described in section seventy-five
45 hundred two of the internal revenue code by a designated delivery
46 service. If the commissioner of finance finds that any delivery service
47 designated by such secretary is inadequate for the needs of the city,
48 the commissioner of finance may withdraw such designation for purposes
49 of this title. The commissioner of finance may also designate additional
50 delivery services meeting the criteria of section seventy-five hundred
51 two of the internal revenue code for purposes of this title, or may
52 withdraw any such designation if the commissioner of finance finds that
53 a delivery service so designated is inadequate for the needs of the
54 city. Any reference in subdivision d of this section to the United
55 States mail shall be treated as including a reference to any delivery
56 service designated by the commissioner of finance and any reference in
S. 8578 1197
1 subdivision d of this section to a United States postmark shall be
2 treated as including a reference to any date recorded or marked in the
3 manner described in section seventy-five hundred two of the internal
4 revenue code by a delivery service designated by the commissioner of
5 finance, provided, however any withdrawal of designation or additional
6 designation by the commissioner of finance shall not be effective for
7 purposes of service upon the tax appeals tribunal, unless and until such
8 withdrawal of designation or additional designation is ratified by the
9 president of the tax appeals tribunal.
10 (2) Any equivalent of registered or certified mail designated by the
11 United States secretary of the treasury, or as may be designated by the
12 commissioner of finance pursuant to the same criteria used by such
13 secretary for such designations pursuant to section seventy-five hundred
14 two of the internal revenue code, shall be included within the meaning
15 of registered or certified mail as used in subdivision d of this
16 section. If the commissioner of finance finds that any equivalent of
17 registered or certified mail designated by such secretary or the commis-
18 sioner of finance is inadequate for the needs of the city, the commis-
19 sioner of finance may withdraw such designation for purposes of this
20 title, provided, however, any withdrawal of designation or additional
21 designation by the commissioner of finance shall not be effective for
22 purposes of service upon the tax appeals tribunal, unless and until such
23 withdrawal of designation or additional designation is ratified by the
24 president of the tax appeals tribunal.
25 § 11-2518 Construction and enforcement. This chapter shall be
26 construed and enforced in conformity with chapter one hundred sixty-one
27 of the laws of nineteen hundred seventy, as amended by chapter one
28 hundred sixty-two of the laws of nineteen hundred seventy, pursuant to
29 which it is enacted.
30 § 11-2519 Tourism and convention fund. Notwithstanding any provision
31 of law to the contrary, with respect to the additional tax imposed at
32 the rate of six percent on and after September first, nineteen hundred
33 ninety and before December first, nineteen hundred ninety-four pursuant
34 to subparagraph (B) of paragraph three of subdivision a of section
35 11-2502 of this chapter, four and one-sixth percent of the total reven-
36 ues resulting from the imposition of such tax, including four and one-
37 sixth percent of any interest or penalties thereon, shall be credited to
38 and deposited in a special tourism and convention fund, which shall be
39 used solely for the purpose of promoting tourism and conventions in the
40 city. Seven-eighths of the moneys in such fund shall be made available
41 to the New York Convention and Visitor's Bureau, Inc. pursuant to an
42 annual contract with the city which may specify, among other things, the
43 services which shall be provided by such bureau with such moneys and the
44 content and number of reports which will have to be provided by such
45 bureau to the city concerning the expenditure of such moneys, and
46 provided that the annual budget and business plan of such bureau is
47 approved by the mayor of the city or his or her designee. The remaining
48 one-eighth of the fund shall be spent for promoting tourism and
49 conventions which may include, at the mayor's discretion, moneys spent
50 in connection with additional contracts made with the New York Conven-
51 tion and Visitor's Bureau, Inc. For purposes of this section, the term
52 "promoting tourism and conventions" shall mean developing, placing and
53 purchasing advertising promoting the city, and engaging in such other
54 efforts as are designed to attract tourists and conventions to the city.
S. 8578 1198
1 CHAPTER 26
2 TAX ON MORTGAGES
3 § 11-2601 Imposition of tax. a. A tax of fifty cents for each one
4 hundred dollars and each remaining major fraction thereof of principal
5 debt or obligation which is, or under any contingency may be secured at
6 the date of execution thereof or at any time thereafter by a mortgage on
7 real property situated within the city and recorded on or after August
8 first, nineteen hundred seventy-one and prior to February first, nine-
9 teen hundred eighty-two, is hereby imposed on each such mortgage and
10 shall be collected and paid as provided in this chapter. If the princi-
11 pal debt or obligation which is or by any contingency may be secured by
12 such mortgage is less than one hundred dollars, a tax of fifty cents is
13 hereby imposed on such mortgage, and shall be collected and paid as
14 provided in this chapter.
15 b. With respect to: (1) one, two or three-family houses, individual
16 cooperative apartments and individual residential condominium units, and
17 (2) real property securing a principal debt or obligation of less than
18 five hundred thousand dollars, a tax of fifty cents, and with respect to
19 all other real property a tax of one dollar and twelve and one-half
20 cents, for each one hundred dollars and each remaining major fraction
21 thereof of principal debt or obligation which is, or under any contin-
22 gency may be secured at the date of execution thereof or at any time
23 thereafter by a mortgage on such real property situated within the city
24 and recorded on or after February first, nineteen hundred eighty-two and
25 before July first, nineteen hundred eighty-two, is hereby imposed on
26 each such mortgage and shall be collected and paid as provided in this
27 chapter. If the principal debt or obligation which is or by any contin-
28 gency may be secured by such mortgage is less than one hundred dollars,
29 a tax of one dollar is hereby imposed on such mortgage, and shall be
30 collected and paid as provided in this chapter.
31 c. With respect to: (1) real property securing a principal debt or
32 obligation of less than five hundred thousand dollars, a tax of fifty
33 cents, (2) with respect to one, two or three-family houses, individual
34 cooperative apartments and individual residential condominium units
35 securing a principal debt or obligation of five hundred thousand dollars
36 or more, a tax of sixty-two and one-half cents, and (3) with respect to
37 all other real property, a tax of one dollar and twenty-five cents, for
38 each one hundred dollars and each remaining major fraction thereof of
39 principal debt or obligation which is, or under any contingency may be
40 secured at the date of execution thereof or at any time thereafter by a
41 mortgage on such real property situated within the city and recorded on
42 or after July first, nineteen hundred eighty-two and before August
43 first, nineteen hundred ninety, is hereby imposed on each such mortgage
44 and shall be collected and paid as provided in this chapter. If the
45 principal debt or obligation which is or by any contingency may be
46 secured by such mortgage is less than one hundred dollars, a tax of one
47 dollar is hereby imposed on such mortgage and shall be collected and
48 paid as provided in this chapter.
49 d. With respect to: (1) real property securing a principal debt or
50 obligation of less than five hundred thousand dollars, a tax of one
51 dollar, (2) with respect to one, two or three-family houses and individ-
52 ual residential condominium units securing a principal debt or obli-
53 gation of five hundred thousand dollars or more, a tax of one dollar and
54 twelve and one-half cents, and (3) with respect to all other real prop-
55 erty, a tax of one dollar and seventy-five cents, for each one hundred
S. 8578 1199
1 dollars and each remaining major fraction thereof of principal debt or
2 obligation which is, or under any contingency may be secured at the date
3 of execution thereof, or at anytime thereafter by a mortgage on such
4 real property situated within the city and recorded on or after August
5 first, nineteen hundred ninety, is hereby imposed on each such mortgage
6 and shall be collected and paid as provided in this chapter. If the
7 principal debt or obligation which is or by any contingency may be
8 secured by such mortgage is less than one hundred dollars, a tax of one
9 dollar is hereby imposed on such mortgage and shall be collected and
10 paid as provided in this chapter.
11 e. (1) For the purpose of determining whether a mortgage is subject to
12 the tax imposed by subdivision b or c of this section at a rate in
13 excess of fifty cents, or by subdivision d of this section at a rate in
14 excess of one dollar, for each one hundred dollars and each remaining
15 major fraction thereof of principal debt or obligation, the principal
16 debt or obligation which is or under any contingency may be secured at
17 the date of execution thereof, or at any time thereafter, by such mort-
18 gage shall be aggregated with the principal debt or obligation which is
19 or under any contingency may be secured at the date of execution there-
20 of, or at any time thereafter, by any other mortgage, where such mort-
21 gages form part of the same or related transactions and have the same or
22 related mortgagors. If the commissioner of taxation and finance finds
23 that a mortgage transaction or mortgage transactions have been formu-
24 lated for the purpose of avoiding or evading a rate of tax imposed under
25 this section in excess of the lowest such rate, rather than solely for
26 an independent business or financial purpose, such commissioner shall
27 treat all of the mortgages forming part of such transaction or trans-
28 actions as a single mortgage for the purpose of determining the applica-
29 ble rate of tax. For the purposes of this subdivision, all mortgages
30 having the same or related mortgagors offered for recording within a
31 period of twelve consecutive months shall be presumed to form part of a
32 related transaction, unless clear and convincing evidence is offered to
33 the contrary. The commissioner of taxation and finance may require such
34 affidavits and forms, and may prescribe such rules and regulations, as
35 he or she determines to be necessary to enforce the provisions of this
36 subdivision.
37 (2) The term "related", when used in this subdivision with reference
38 to mortgagors, shall include, but shall not be limited to, the following
39 relationships:
40 (i) members of a family, including spouses, ancestors, lineal descend-
41 ants, and brothers and sisters, whether by the whole or half blood;
42 (ii) a shareholder and a corporation more than fifty percent of the
43 value of the outstanding stock of which is owned or controlled directly
44 or indirectly by such shareholder;
45 (iii) a partner and a partnership more than fifty percent of the capi-
46 tal or profits interest in which is owned or controlled directly or
47 indirectly by such partner;
48 (iv) a beneficiary and a trust more than fifty percent of the benefi-
49 cial interest in which is owned or controlled directly or indirectly by
50 such beneficiary;
51 (v) two or more corporations, partnerships, associations, or trusts,
52 or any combination thereof, which are owned or controlled, either
53 directly or indirectly, by the same person, corporation or other entity,
54 or interests; and
55 (vi) a grantor of a trust and such trust.
S. 8578 1200
1 f. Notwithstanding any provision to the contrary in paragraph (a) of
2 subdivision one of section two hundred fifty-five of the tax law, the
3 taxes imposed by subdivision c or d of this section shall also apply to
4 principal indebtedness or obligation secured by or which under any
5 contingency may be secured by a supplemental instrument or additional
6 mortgage, whether or not there is any new or further indebtedness or
7 obligation other than the principal indebtedness or obligation secured
8 by a recorded primary mortgage, where (1) the supplemental instrument or
9 additional mortgage imposes the lien of a recorded mortgage upon real
10 property situated within the city not previously subject to the mortgage
11 or where an additional mortgage upon such additional property is
12 recorded as additional or substitute security for indebtedness or obli-
13 gation already secured by a recorded mortgage and (2) the recorded
14 primary mortgage was on real property outside the city and recorded
15 without payment of the city tax.
16 § 11-2602 Payment and payment over of taxes. The taxes imposed by
17 this chapter shall be payable on the recording of each mortgage of real
18 property subject to taxes pursuant to such chapter. Such taxes shall be
19 paid to the recording officer of the county in which the real property
20 or any part thereof is situated, except where real property is situated
21 within and without the city, the recording officer of the county in
22 which the mortgage is first recorded shall collect the tax imposed by
23 this chapter, as required by subdivision three of section two hundred
24 fifty-three-a of the tax law. It shall be the duty of such recording
25 officer to indorse upon each mortgage a receipt for the amount of the
26 tax so paid. Any mortgage so endorsed may thereupon or thereafter be
27 recorded by any recording officer and the receipt for such tax indorsed
28 upon each mortgage shall be recorded therewith. The record of such
29 receipt shall be conclusive proof that the amount of tax stated therein
30 has been paid upon such mortgage. Upon the first day of each month the
31 city register and the recording officer of Richmond county shall pay
32 over to the commissioner of finance of the city for credit to the gener-
33 al fund of such city, the balance of the moneys received during the
34 preceding month upon account of taxes paid to him or her as prescribed
35 in this section, after deducting the necessary expenses of his or her
36 office as provided in section two hundred sixty-two of the tax law,
37 except taxes paid upon mortgages which are first to be apportioned by
38 the commissioner of taxation and finance, which taxes and money shall be
39 paid over by him or her as provided by the determination of the said
40 commissioner of taxation and finance, provided, however, in each
41 instance where the tax imposed pursuant to section 11-2601 of this chap-
42 ter is one dollar and twenty-five cents for each one hundred dollars and
43 each remaining major fraction thereof of such principal debt or obli-
44 gation, fifty percent of the total amount of such tax, including fifty
45 percent of any interest or penalties thereon, shall be set aside in a
46 special account by the commissioner of finance, and in each instance
47 where the tax imposed pursuant to that section is one dollar and seven-
48 ty-five cents for each one hundred dollars and each remaining major
49 fraction thereof of such principal debt or obligation, thirty-five and
50 seven-tenths percent of the total amount of such tax, including thirty-
51 five and seven-tenths percent of any interest or penalties thereon,
52 shall also be set aside in such special account. Moneys in such account
53 shall be used for payment by such commissioner to the state comptroller
54 for deposit in the urban mass transit operating assistance account of
55 the mass transportation operating assistance fund of any amount of
56 insufficiency certified by the state comptroller pursuant to the
S. 8578 1201
1 provisions of subdivision six of section eighty-eight-a of the state
2 finance law, and on the fifteenth day of each month, such commissioner
3 shall transmit all funds in such account at the end of the preceding
4 month, except the amount required for the payment of any amount of
5 insufficiency certified by the state comptroller and such amount as he
6 or she deems necessary for refunds and such other amounts necessary to
7 finance the city transportation disabled committee and the city para-
8 transit system as established by section fifteen-b of the transportation
9 law, provided, however, that such amounts shall not exceed six percent
10 of the total funds in the account but in no event be less than two
11 hundred twenty-five thousand dollars beginning April first, nineteen
12 hundred eighty-six, and further that beginning November fifteenth, nine-
13 teen hundred eighty-four and during the entire period prior to operation
14 of such system, the total of such amounts shall not exceed three hundred
15 seventy-five thousand dollars for the administrative expenses of such
16 committee and fifty thousand dollars for the expenses of the agency
17 designated pursuant to paragraph b of subdivision five of such section,
18 and other amounts necessary to finance the operating needs of the
19 private bus companies franchised by the city of Staten Island and eligi-
20 ble to receive state operating assistance under section eighteen-b of
21 the transportation law, provided, however, that such amounts shall not
22 exceed four percent of the total funds in the account, to the New York
23 city transit authority for mass transit within the city.
24 § 11-2603 Manner of administration and collection. The taxes imposed
25 under this chapter shall be administered and collected in the same
26 manner as the taxes imposed under subdivision one of section two hundred
27 fifty-three and subdivision one of section two hundred fifty-five of the
28 tax law. All the provisions of article eleven of the tax law relating
29 to or applicable to the administration and collection of the taxes
30 imposed by subdivision one of section two hundred fifty-three and subdi-
31 vision one of section two hundred fifty-five of the tax law shall apply
32 to the taxes imposed under this chapter with the same force and effect
33 as if those provisions had been set forth in full in this chapter except
34 to the extent that any such provision is either inconsistent with a
35 provision of this chapter or not relevant to the tax imposed by this
36 chapter. For purposes of this chapter any reference in article eleven
37 of the tax law to the tax or taxes imposed by such article shall be
38 deemed to refer to a tax imposed by this chapter, and any reference to
39 the phrase "within this state" shall be read as "within this city"
40 unless a different meaning is clearly required. Whenever real property
41 covered by the mortgage is partly within and partly without the city of
42 Staten Island, the portion of the mortgage taxable under this chapter
43 shall be determined in the manner prescribed in the first paragraph of
44 section two hundred sixty of the tax law where the property without the
45 city is located within the state and, in the manner prescribed in the
46 second paragraph of such section of the tax law, where the property
47 without the city is located without the state.
48 § 11-2604 Tax additional. The tax imposed by this chapter shall be
49 in addition to any taxes imposed by section two hundred fifty-three of
50 the tax law.
51 CHAPTER 27
52 ANNUAL VAULT CHARGE
53 § 11-2701 Definitions. When used in this chapter, the following terms
54 shall mean or include:
S. 8578 1202
1 1. "Person." An individual, partnership, society, association, joint-
2 stock company, corporation, estate, receiver, lessee, trustee, assignee,
3 referee, or any other person acting in a fiduciary or representative
4 capacity, whether appointed by a court or otherwise, and any combination
5 of individuals.
6 2. "Vault." Any subsurface opening, structure or erection, whether or
7 not wholly or partly covered over, to the extent that it extends from
8 the building line into any street of the city, for the erection of which
9 a license fee is required pursuant to the charter of the city or this
10 code.
11 3. "Street." Every public street, avenue, road, alley, lane, highway,
12 boulevard, concourse, parkway, driveway, culvert, sidewalk, crosswalk
13 and viaduct, and every other class of public highway, road, square and
14 place within or belonging to the city.
15 4. "Using, occupying or maintaining." Any right or authority to
16 install, store or maintain property of any kind in a vault, or otherwise
17 to use, occupy or maintain such vault for any purpose whatsoever. Such
18 right or authority shall be deemed to exist wherever a vault has not
19 been filled in or closed by the licensee or abutting property owner and
20 the street restored to its original condition pursuant to the require-
21 ments of the charter of the city or this code.
22 5. "City surveyor." Any person appointed a surveyor of the city of
23 Staten Island pursuant to the code of the city.
24 6. "Owner of the premises immediately adjoining the vault." Any person
25 who is the owner of record of real property located in whole or in part
26 within the city, from which a vault has been extended.
27 7. "Depth." The vertical distance from the ceiling, roof or top of a
28 vault to the floor, bottom or lowest point thereof.
29 8. "City." The city of Staten Island.
30 9. "Comptroller." The comptroller of the city.
31 10. "Commissioner of finance." The commissioner of finance of the
32 city.
33 11. "Return." Any return required to be filed as under this chapter
34 provided.
35 12. "Tax appeals tribunal." The tax appeals tribunal established by
36 section one hundred sixty-eight of the charter of the preceding munici-
37 pality as it existed January first, nineteen hundred ninety-four.
38 § 11-2702 Imposition of charge. (a) In addition to any and all
39 other license fees, charges and taxes, there is hereby imposed and there
40 shall be paid an annual vault charge, beginning as of July first, nine-
41 teen hundred sixty-two, for the privilege of occupying, using or main-
42 taining a vault in the streets of the city, to be paid by the owner of
43 the premises immediately adjoining the vault.
44 (A) For periods prior to July first, nineteen hundred seventy-one such
45 annual vault charges shall be at the following rates:
46 1. On any vault occupying up to two hundred and fifty square feet in
47 plane or surface area but no more than twelve feet in depth, thirty-five
48 cents per square foot but not less than five dollars for the total occu-
49 pancy;
50 2. On any vault occupying more than two hundred fifty square feet in
51 plane or surface area but not more than twelve feet in depth, thirty-
52 five cents per square foot for the first two hundred fifty square feet
53 of an area and sixty cents per square foot for that portion of the area
54 in excess of two hundred fifty square feet;
55 3. On any vault more than twelve feet in depth, an additional charge
56 for each additional ten feet in depth or fraction thereof calculated by
S. 8578 1203
1 adding the plane or surface area for each such additional depth to the
2 area calculated pursuant to subparagraphs one and two and by applying to
3 such total area the same rates as provided in subparagraphs one and two.
4 The additional area for any additional depth of ten feet or fraction
5 thereof shall however, be reduced by ten percent for each foot of depth
6 less than ten feet.
7 (B) For periods beginning on or after July first, nineteen hundred
8 seventy-one and ending on or before May thirty-first, nineteen hundred
9 eighty, such annual vault charges shall be at the following rates:
10 1. On any vault occupying no more than twelve feet in depth, one
11 dollar per square foot of plane or surface area but not less than five
12 dollars for the total occupancy;
13 2. On any vault more than twelve feet in depth, an additional charge
14 for each additional ten feet in depth, or fraction thereof calculated by
15 adding the plane or surface area for each such additional depth to the
16 area calculated pursuant to subparagraph one of this paragraph and by
17 applying to such total area the same rate as provided in subparagraph
18 one of this paragraph. The additional area for any additional depth of
19 ten feet or fraction thereof shall however, be reduced by ten percent
20 for each foot of depth less than ten feet.
21 (C) For periods beginning on or after June first, nineteen hundred
22 eighty such annual vault charge shall be at the following rates:
23 1. On any vault occupying no more than twelve feet in depth, two
24 dollars per square foot of plane or surface area;
25 2. On any vault more than twelve feet in depth, an additional charge
26 for each additional ten feet in depth, or fraction thereof calculated by
27 adding the plane or surface area for each such additional depth to the
28 area calculated pursuant to subparagraph one of this paragraph and by
29 applying to such total area the same rate as provided in subparagraph
30 one of this paragraph. The additional area for any additional depth of
31 ten feet or fraction thereof shall however, be reduced by ten percent
32 for each foot of depth less than ten feet.
33 (D) Notwithstanding any provision of law to the contrary, no annual
34 vault charge or additional charge shall be imposed pursuant to this
35 chapter on or after June first, nineteen hundred ninety-eight.
36 (b) Where the owner of the premises immediately adjoining the vault
37 is exempt from or otherwise not liable for the annual vault charge, the
38 tenant, lessee or any other person using, occupying or maintaining such
39 vault shall be liable therefor.
40 (c) The annual vault charge imposed by this section shall be due from,
41 and shall be paid by, the person who is the owner of the premises imme-
42 diately adjoining the vault on the first day of July of the year for
43 which such charge is imposed except that, on and after June first, nine-
44 teen hundred seventy-two, such charge shall be due from, and shall be
45 paid by the person who is the owner of the premises immediately adjoin-
46 ing the vault on the first day of June of the year for which such charge
47 is imposed. Where the annual vault charge is imposed pursuant to subdi-
48 vision (b) of this section, such annual vault charge shall be due from
49 and paid by, the tenant, lessee or any other person using, occupying or
50 maintaining the vault on the first day of July of the year for which
51 such charge is imposed, except that for years beginning on or after June
52 first, nineteen hundred seventy-two, such charge shall be due from, and
53 paid by, the tenant, lessee or any other person using, occupying or
54 maintaining the vault on the first day of June of the year for which
55 such charge is imposed.
S. 8578 1204
1 (d) In the event that the annual vault charge as imposed by this chap-
2 ter shall be held invalid, then such annual vault charge shall be deemed
3 a tax on the same basis and at the same rates as provided in this chap-
4 ter and all other provisions of this chapter shall be equally applica-
5 ble.
6 (e) Where, prior to the first day of August in any year in which the
7 annual vault charge imposed under this chapter shall be due and payable,
8 if a vault or part thereof is made unavailable for use or occupancy, the
9 annual vault charge paid for such year, pursuant to the provisions of
10 this chapter, shall be refunded in full upon application to and furnish-
11 ing of such proof as the commissioner of finance may require. Where
12 such closing of a vault occurs prior to the last day of December in any
13 such year, fifty percent of the annual vault charge due and actually
14 paid for such year shall be refunded to the payor upon application to
15 and furnishing of such proof as the commissioner of finance may require.
16 Where such closing is limited to a part of a vault, such a refund shall
17 be granted only to the extent that the closing reduces the area of the
18 vault and thereby the amount of the charge for the vault.
19 § 11-2703 Exemptions. The charges imposed by this chapter shall not
20 apply to the following:
21 1. The state of New York, or any public corporation, including a
22 public corporation created pursuant to agreement or compact with another
23 state or the Dominion of Canada, improvement district or other political
24 subdivision of the state;
25 2. The United States of America, insofar as it is immune from taxa-
26 tion;
27 3. The United Nations or other world-wide international organizations
28 of which the United States of America is a member;
29 4. Any corporation, or association, or trust, or community chest, fund
30 or foundation, organized and operated exclusively for religious, chari-
31 table, or educational purposes, or for the prevention of cruelty to
32 children or animals, and no part of the net earnings of which inures to
33 the benefit of any private shareholder or individual and no substantial
34 part of the activities of which is carrying on propaganda, or otherwise
35 attempting to influence legislation; provided, however, that nothing in
36 this subdivision shall include an organization operated for the primary
37 purpose of carrying on a trade or business for profit, whether or not
38 all of its profits are payable to one or more organizations described in
39 this subdivision.
40 5. Any vault constituting property defined as a special franchise in
41 section one hundred two of the real property tax law or assessed as such
42 pursuant to article six of such law.
43 6. Any vault to the extent that it is used, occupied or maintained
44 pursuant to a revocable consent granted pursuant to section three
45 hundred seventy-four of the charter of the preceding municipality as it
46 existed January first, nineteen hundred ninety-four.
47 7. Any vault immediately adjoining a building or structure designed
48 for and used exclusively as a single-family or a two-family dwelling
49 house or any other real property which is classified as class one real
50 property pursuant to section eighteen hundred two of the real property
51 tax law.
52 8. Any street occupancy usable solely and exclusively for the melting
53 of snow and ice, or for delivery into the immediately adjoining prem-
54 ises, of coal, oil or other fuel for the heating thereof.
55 9. Any vault occupying no more than thirty-six square feet in plane or
56 surface area, irrespective of the depth of such vault.
S. 8578 1205
1 § 11-2704 Filing of returns. a. Every person subject to the annual
2 vault charge under this chapter shall, on or before the first day of
3 August, nineteen hundred sixty-two, and on or before the fifteenth day
4 of July of every year thereafter, file with the commissioner of finance
5 a return showing the dimensions of the vault as to length, width and
6 depth, except that the return required to be filed on or before July
7 fifteenth, nineteen hundred seventy-two shall be filed on or before June
8 fifteenth, nineteen hundred seventy-two and those due in later years
9 shall be required to be filed on or before June fifteenth of such years.
10 The commissioner of finance, if he or she deems it necessary to insure
11 adequate information with regard to the proper charge to be imposed, may
12 require information returns from other persons, including the owners of
13 real property regardless of whether a vault has been extended therefrom,
14 the users or lessees of the vault or lessees or tenants of the property
15 adjoining the vault.
16 b. The forms of returns shall be prescribed by the commissioner of
17 finance and shall contain such information as he or she may deem neces-
18 sary for the proper administration of this chapter; and the commissioner
19 of finance or his or her duly authorized agents or employees shall be
20 empowered to require supplemental returns. If a return required by this
21 chapter is not filed or if the return when filed is incorrect or insuf-
22 ficient on its face, the commissioner of finance shall take the neces-
23 sary steps to enforce the filing of such a return or of a corrected
24 return. Upon failure to comply with a notice to furnish a return or a
25 sufficient return, the commissioner of finance may require the filing of
26 a certificate signed by a city surveyor specifying the dimensions of the
27 vault.
28 c. For each annual vault charge year beginning on or after June first,
29 nineteen hundred eighty-nine, the commissioner of finance shall, at
30 least thirty days prior to the commencement of such year, mail to each
31 person who has filed an annual vault charge return for the immediately
32 preceding year an annual vault charge return form on which shall be
33 shown the amount of the charge for such immediately preceding year. Such
34 return form shall be accompanied by instructions which explain in clear
35 and simple terms how to determine the dimensions and extent of street
36 occupancy of a vault, how to calculate the amount of the charge, and
37 such other matters as the commissioner considers necessary or helpful to
38 an understanding of the requirements of this chapter, provided, however,
39 neither the failure of the commissioner to mail such return form and
40 instructions nor the failure of any person to receive the same shall
41 relieve any person of the obligation to file any return required under
42 this section or of liability for the charge, interest or penalties
43 imposed by this chapter.
44 d. If no form or other notice has previously been sent to a person
45 subject to the annual vault charge with respect to the amount of vault
46 charge owed for any year, the commissioner of finance shall notify such
47 person of the amount owed as soon as practicable after discovering that
48 such amount is owed.
49 § 11-2705 Payment of vault charges. a. At the time of filing a return
50 as required by this chapter the person subject to the annual vault
51 charge shall pay to the commissioner of finance the charge imposed by
52 this chapter. Such charge shall be due and payable on the last day on
53 which such return is required to be filed, without regard to whether a
54 return is filed or whether the return which is filed correctly shows the
55 amount due.
S. 8578 1206
1 b. The charge otherwise required to be paid with the return due on or
2 before June fifteenth, nineteen hundred eighty shall be paid in two
3 equal installments as follows: one-half of the charge shall be paid with
4 the return on or before June fifteenth, nineteen hundred eighty, and
5 one-half of the charge shall be paid on or before September fifteenth,
6 nineteen hundred eighty.
7 § 11-2706 Presumption and burden of proof. For the purpose of the
8 proper administration of this chapter and to prevent evasion of the
9 annual vault charge hereby imposed, it shall be presumed, except where
10 the depth of a vault exceeds twelve feet, that the size of the vault as
11 indicated upon the license therefor originally issued by the former
12 borough president of Staten Island up to and including December thirty-
13 first, nineteen hundred sixty-two, and the commissioner of transporta-
14 tion thereafter is a proper measure of the charge until the contrary is
15 established, and the burden of proving that the size of the vault is not
16 accurately stated upon the license shall be upon the person so claiming.
17 In cases where no license of record has been issued for a vault or where
18 the depth of a vault exceeds twelve feet, the burden of proving the
19 actual size of the vault shall be upon the person liable for the vault
20 charge.
21 § 11-2707 Determination of vault charge. If a return required by this
22 chapter is not filed or if a return when filed is incorrect or insuffi-
23 cient, the amount of the vault charge due shall be determined by the
24 commissioner of finance from such information as may be obtainable and,
25 if necessary, the charge may be estimated on the basis of external
26 indices, including but not limited to the records of the department of
27 transportation, the reports of tax assessors, the reports of inspectors
28 and investigators in the offices of the commissioner of finance and
29 commissioner of transportation, or other information or factors. Notice
30 of such determination shall be given to the person liable for the
31 payment thereof. Such determination shall finally and irrevocably fix
32 the vault charge unless the person against whom it is assessed shall,
33 within ninety days after the giving of notice of such determination, or,
34 if the commissioner of finance has established a conciliation procedure
35 pursuant to section 11-124 of the code of the preceding municipality and
36 such person has requested a conciliation conference in accordance there-
37 with, within ninety days from the mailing of a conciliation decision or
38 the date of the commissioner's confirmation of the discontinuance of the
39 conciliation proceeding, both (1) serves a petition upon the commission-
40 er of finance and (2) files a petition with the tax appeals tribunal, or
41 unless the commissioner of finance of his or her own motion shall rede-
42 termine the same. Upon such hearing the tax appeals tribunal may
43 require the filing of a certificate signed by a city surveyor specifying
44 the dimensions of the vault. After such hearing the tax appeals tribu-
45 nal shall give notice of its decision to the person against whom the
46 vault charge is assessed. A decision of the tax appeals tribunal
47 sitting en banc shall be reviewable for error, illegality or unconstitu-
48 tionality or any other reason whatsoever by a proceeding under article
49 seventy-eight of the civil practice law and rules if application there-
50 for is made to the supreme court by the person against whom the vault
51 charge was assessed within four months after the giving of the notice of
52 such tax appeals tribunal decision. A proceeding under article seventy-
53 eight of the civil practice law and rules shall not be instituted by a
54 person against whom the vault charge is assessed unless (a) the amount
55 of any vault charge sought to be reviewed, with penalties and interest
56 thereon, if any, shall be first deposited with the commissioner of
S. 8578 1207
1 finance and there shall be filed with the commissioner of finance an
2 undertaking in such amount and with such sureties as a justice of the
3 supreme court shall approve, to the effect that if such proceeding be
4 dismissed or the vault charge confirmed the person against whom the
5 vault charge is assessed will pay all costs and charges which may accrue
6 in the prosecution of the proceeding, or (b) at the option of such
7 person, such undertaking filed with the commissioner of finance may be
8 in a sum sufficient to cover the vault charge, penalties and interest
9 thereon stated in such decision plus the costs and charges which may
10 accrue against him or her in the prosecution of the proceeding, in which
11 event such person shall not be required to deposit such vault charge,
12 penalties and interest as a condition precedent to the application.
13 § 11-2708 Refunds. a. In the manner provided in this section, the
14 commissioner of finance shall refund or credit, without interest, any
15 vault charge, penalty or interest erroneously, illegally or unconstitu-
16 tionally collected or paid if application to the commissioner of finance
17 for such refund shall be made within one year from the payment thereof.
18 Whenever a refund is made or denied by the commissioner of finance, he
19 or she shall state his or her reason therefor and give notice thereof to
20 the applicant in writing. Such application may be made by the owner of
21 the premises, or other person, who has actually paid the vault charge.
22 The commissioner of finance may, in lieu of any refund required to be
23 made, allow credit therefor on payments due from the applicant.
24 b. Any determination of the commissioner of finance denying a refund
25 or credit pursuant to subdivision a of this section shall be final and
26 irrevocable unless the applicant for such refund or credit, within nine-
27 ty days from the mailing of notice of such determination, or, if the
28 commissioner of finance has established a conciliation procedure pursu-
29 ant to section 11-124 of the code of the preceding municipality and the
30 applicant has requested a conciliation conference in accordance there-
31 with, within ninety days from the mailing of a conciliation decision or
32 the date of the commissioner's confirmation of the discontinuance of the
33 conciliation proceeding, both (1) serves a petition upon the commission-
34 er of finance and (2) files a petition with the tax appeals tribunal for
35 a hearing. Such petition for a refund or credit, made as provided in
36 this section, shall be deemed an application for a revision of any vault
37 charge, penalty or interest complained of. Such hearing and any appeal
38 to the tax appeals tribunal sitting en banc from the decision rendered
39 in such hearing shall be conducted in the manner and subject to the
40 requirements prescribed by the tax appeals tribunal pursuant to sections
41 one hundred sixty-eight through one hundred seventy-two of the charter
42 of the preceding municipality as it existed January first, nineteen
43 hundred ninety-four. After such hearing, the tax appeals tribunal shall
44 give notice of its decision to the applicant and to the commissioner of
45 finance. The applicant shall be entitled to review such decision of the
46 tax appeals tribunal sitting en banc by a proceeding pursuant to article
47 seventy-eight of the civil practice law and rules, provided such
48 proceeding is instituted within four months after the giving of the
49 notice of such decision, and provided, in the case of an application by
50 a person against whom the vault charge is assessed, that a final deter-
51 mination of the vault charge due was not previously made. Such a
52 proceeding shall not be instituted by a person against whom the vault
53 charge is assessed unless an undertaking is filed with the commissioner
54 of finance in such amount and with such sureties as a justice of the
55 supreme court shall approve to the effect that if such proceeding be
S. 8578 1208
1 dismissed or the vault charge confirmed, such person will pay all costs
2 and charges which may accrue in the prosecution of such proceeding.
3 c. A person shall not be entitled to a revision, refund or credit
4 under this section of a vault charge, interest or penalty which had been
5 determined to be due pursuant to the provisions of section 11-2707 of
6 this chapter where he or she has had a hearing or an opportunity for a
7 hearing, as provided in said section, or has failed to avail himself or
8 herself of the remedies therein provided. No refund or credit shall be
9 made of annual vault charge, interest or penalty paid after a determi-
10 nation by the commissioner of finance made pursuant to section 11-2707
11 of this chapter unless it be found that such determination was errone-
12 ous, illegal or unconstitutional or otherwise improper, by the tax
13 appeals tribunal after a hearing or on the commissioner's own motion,
14 or, if such tax appeals tribunal affirms in whole or in part the deter-
15 mination of the commissioner of finance, in a proceeding under article
16 seventy-eight of the civil practice law and rules, pursuant to the
17 provisions of said section, in which event refund or credit without
18 interest shall be made of the vault charge, interest or penalty found to
19 have been overpaid.
20 § 11-2709 Reserves. In cases where the person or persons liable for
21 the vault charge imposed by this chapter has applied for a refund and
22 has instituted a proceeding under article seventy-eight of the civil
23 practice law and rules to review a determination adverse to him or her
24 on his or her application for refund, the comptroller shall set up
25 appropriate reserves to meet any decision adverse to the city.
26 § 11-2710 Remedies exclusive. The remedies provided by sections
27 11-2707 and 11-2708 of this chapter shall be the exclusive remedies
28 available to any person for the review of the liability imposed under
29 this chapter, and no determination or proposed determination of an annu-
30 al vault charge or determination on any application for refund by the
31 commissioner of finance, nor any decision by the tax appeals tribunal or
32 any of its administrative law judges, shall be enjoined or reviewed by
33 an action for declaratory judgment, an action for money had and received
34 or by any action or proceeding other than, in the case of a decision by
35 the tax appeals tribunal sitting en banc, a proceeding in the nature of
36 a certiorari proceeding under article seventy-eight of the civil prac-
37 tice law and rules; provided, however, that a person liable for the
38 annual vault charge may proceed by declaratory judgment if he or she
39 institutes suit within thirty days after a deficiency assessment is made
40 and pays the amount of the deficiency assessment to the commissioner of
41 finance prior to the institution of such suit and posts a bond for costs
42 as provided in section 11-2707 of this chapter.
43 § 11-2711 Proceedings to recover annual vault charge. a. Whenever any
44 person shall fail to pay any vault charge, penalty or interest imposed
45 by this chapter as provided in this chapter, the corporation counsel
46 shall, upon the request of the commissioner of finance bring, or cause
47 to be brought, an action to enforce the payment of the same on behalf of
48 the city of Staten Island in any court of the state of New York or of
49 any other state or of the United States.
50 b. As an additional remedy or as an alternate remedy, the commissioner
51 of finance may issue a warrant, directed to the city sheriff, commanding
52 him or her to levy upon and sell the real and personal property of the
53 person liable for vault charges which may be found within the city for
54 the payment of the amount thereof, with any penalties and interest, and
55 the cost of executing the warrant, and to return such warrant to the
56 commissioner of finance and to pay to him or her the money collected by
S. 8578 1209
1 virtue thereof within sixty days after the receipt of such warrant. The
2 city sheriff shall within five days after the receipt of the warrant
3 file with the county clerk a copy thereof, and thereupon such clerk
4 shall enter in the judgment docket the name of the person mentioned in
5 the warrant and the amount of the vault charge, penalty and interest for
6 which the warrant is issued and the date when such copy is filed. Ther-
7 eupon the amount of such warrant so docketed shall become a lien upon
8 the title to and interest in real and personal property of the person
9 against whom the warrant is issued. The city sheriff shall then proceed
10 upon the warrant in the same manner, and with like effect, as that
11 provided by law in respect to executions issued against property upon
12 judgments of a court of record and for services in executing the warrant
13 he or she shall be entitled to the same fees, which he or she may
14 collect in the same manner. In the discretion of the commissioner of
15 finance a warrant of like terms, force and effect may be issued and
16 directed to an officer or employee of the department of finance, and in
17 the execution thereof such officer or employee shall have all the powers
18 conferred by law upon sheriffs, but shall be entitled to no fee or
19 compensation in excess of the actual expenses paid in the performance of
20 such duty. If a warrant is returned not satisfied in full, the commis-
21 sioner of finance may from time to time issue new warrants and shall
22 also have the same remedies to enforce the amount due thereunder as if
23 the city had recovered judgment therefor and execution thereon had been
24 returned unsatisfied.
25 c. In addition to any other lien provided for in this section, the
26 annual vault charge imposed by this chapter shall become a lien, binding
27 upon the premises immediately adjoining such vault, on the date such
28 charge is required to be paid until the same is paid in full.
29 d. The commissioner of finance, if he or she finds that the interests
30 of the city will not thereby be jeopardized, and upon such conditions as
31 the commissioner of finance may require, may release any property from
32 the lien of any warrant or vacate such warrant for unpaid vault charges,
33 additions to vault charges, penalties and interest filed pursuant to
34 subdivision b of this section, and such release or vacating of the
35 warrant may be recorded in the office of any recording officer in which
36 such warrant has been filed. The clerk shall thereupon cancel and
37 discharge as of the original date of docketing the vacated warrant.
38 § 11-2712 General powers of the commissioner of finance. In addition
39 to all other powers granted to the commissioner of finance in this chap-
40 ter, he or she is hereby authorized and empowered:
41 1. To make, adopt and amend rules and regulations appropriate to the
42 carrying out of this chapter and the purpose thereof;
43 2. To extend, for cause shown, the time for filing any return for a
44 period not exceeding sixty days; and to compromise disputed claims in
45 connection with the vault charges imposed under this chapter;
46 3. To delegate his or her functions under this chapter to a deputy
47 commissioner of finance or any employee or employees of the department
48 of finance;
49 4. To prescribe methods for determining the size, dimensions, depth
50 and extent of street occupancy of a vault; to set forth the manner of
51 computing the vault charges under this chapter; to prescribe standards
52 or methods, by regulation or otherwise, for determining whether a vault
53 has been made unavailable for use or occupancy; and the commissioner of
54 finance or his or her designated employees or agents shall have power to
55 inspect premises for the purpose of determining the extent, if any, of
56 liability imposed by this chapter.
S. 8578 1210
1 5. To require any owner of premises or licensee or other person using,
2 occupying or maintaining a vault to obtain from the commissioner of
3 finance a certificate stating the dimensions and depth of the vault and
4 that the vault charge thereon has been paid and to exhibit the same to
5 duly authorized employees at the premises or real property adjoining the
6 said vault, and to keep such records, and for such length of time, as
7 may be required for the proper administration of this chapter, and to
8 furnish such records to the commissioner of finance upon request;
9 6. To assess, reassess, determine, revise and readjust the vault
10 charges imposed under this chapter;
11 7. Where he or she has exercised his or her authorized power to
12 require the filing of a certificate signed by a city surveyor specifying
13 the dimensions of a vault and the owner of the premises has failed to
14 comply, he or she may obtain such certificate and, in such situation,
15 the necessary expense of obtaining such certificate shall constitute a
16 lien against such premises until paid.
17 8. The commissioner of finance or his or her designated employees or
18 agents shall have power to inspect premises for the purpose of determin-
19 ing the extent, if any, of liability imposed by this chapter.
20 § 11-2713 Administration of oaths and compelling testimony. a. The
21 commissioner of finance, his or her employees duly designated and
22 authorized by the commissioner, the tax appeals tribunal and any of its
23 duly designated and authorized employees shall have power to administer
24 oaths and take affidavits in relation to any matter or proceeding in the
25 exercise of their powers and duties under this chapter. The commissioner
26 of finance and the tax appeals tribunal shall have power to subpoena and
27 require the attendance of witnesses and the production of books, papers
28 and documents to secure information pertinent to the performance of the
29 duties of the commissioner or of the tax appeals tribunal under this
30 chapter and of the enforcement of this chapter and to examine them in
31 relation thereto, and to issue commissions for the examination of
32 witnesses who are out of the state or unable to attend before such
33 commissioner or the tax appeals tribunal or excused from attendance.
34 b. A justice of the supreme court either in court or at chambers shall
35 have power summarily to enforce by proper proceedings the attendance and
36 testimony of witnesses and the production and examination of books,
37 papers and documents called for by the subpoena of the commissioner of
38 finance or the tax appeals tribunal under this chapter.
39 c. Cross-reference; criminal penalties. For failure to obey subpoenas
40 or for testifying falsely, see section 11-4007 of this title; for
41 supplying false or fraudulent information, see section 11-4009 of this
42 title.
43 d. The officers who serve the summons or subpoena of the commissioner
44 of finance or the tax appeals tribunal under this chapter and witnesses
45 attending in response thereto shall be entitled to the same fees as are
46 allowed to officers and witnesses in civil cases in courts of record,
47 except as otherwise provided under this chapter. Such officers shall be
48 the city sheriff and his or her duly appointed deputies or any officers
49 or employees of the department of finance or the tax appeals tribunal,
50 designated to serve such process.
51 § 11-2714 Interest and penalties. (a) Interest on underpayments. If
52 any annual vault charge is not paid on or before the last date
53 prescribed for payment, without regard to any extension of time granted
54 for payment, interest on such amount at the rate set by the commissioner
55 of finance pursuant to subdivision (g) of this section, or, if no rate
56 is set, at the rate of seven and one-half percent per annum, shall be
S. 8578 1211
1 paid for the period from such last date to the date of payment. In
2 computing the amount of interest to be paid, such interest shall be
3 compounded daily. Interest under this subdivision shall not be paid if
4 the amount thereof is less than one dollar.
5 (b) (1) Failure to file return. (A) In case of failure to file a
6 return under this chapter on or before the prescribed date, determined
7 with regard to any extension of time for filing, unless it is shown that
8 such failure is due to reasonable cause and not due to willful neglect,
9 there shall be added to the amount required to be shown as vault charge
10 on such return five percent of the amount of such charge if the failure
11 is for not more than one month, with an additional five percent for each
12 additional month or fraction thereof during which such failure contin-
13 ues, not exceeding twenty-five percent in the aggregate.
14 (B) In the case of a failure to file a vault charge return within
15 sixty days of the date prescribed for filing of such return, determined
16 with regard to any extension of time for filing, unless it is shown that
17 such failure is due to reasonable cause and not due to willful neglect,
18 the addition to the vault charge under subparagraph (A) of this para-
19 graph shall not be less than the lesser of one hundred dollars or one
20 hundred percent of the amount required to be shown as vault charge on
21 such return.
22 (C) For purposes of this paragraph, the amount of vault charge
23 required to be shown on the return shall be reduced by the amount of any
24 part of the charge which is paid on or before the date prescribed for
25 payment of the charge and by the amount of any credit against the charge
26 which may be claimed upon the return.
27 (2) Failure to pay vault charge shown on return. In case of failure to
28 pay the amount shown as vault charge on a return required to be filed
29 under this chapter on or before the prescribed date, determined with
30 regard to any extension of time for payment, unless it is shown that
31 such failure is due to reasonable cause and not due to willful neglect,
32 there shall be added to the amount shown as vault charge on such return
33 one-half of one percent of the amount of such charge if the failure is
34 not for more than one month, with an additional one-half of one percent
35 for each additional month or fraction thereof during which such failure
36 continues, not exceeding twenty-five percent in the aggregate. For the
37 purpose of computing the addition for any month the amount of vault
38 charge shown on the return shall be reduced by the amount of any part of
39 the charge which is paid on or before the beginning of such month and by
40 the amount of any credit against the charge which may be claimed upon
41 the return. If the amount of vault charge required to be shown on a
42 return is less than the amount shown as such charge on such return, this
43 paragraph shall be applied by substituting such lower amount.
44 (3) Failure to pay vault charge required to be shown on return. In
45 case of failure to pay any amount in respect of any vault charge
46 required to be shown on a return required to be filed under this chapter
47 which is not so shown, including a determination made pursuant to
48 section 11-1106 of this title, within ten days of the date of a notice
49 and demand therefor, unless it is shown that such failure is due to
50 reasonable cause and not due to willful neglect, there shall be added to
51 the amount of vault charge stated in such notice and demand one-half of
52 one percent of such charge if the failure is not for more than one
53 month, with an additional one-half of one percent for each additional
54 month or fraction thereof during which such failure continues, not
55 exceeding twenty-five percent in the aggregate. For the purpose of
56 computing the addition for any month, the amount of vault charge stated
S. 8578 1212
1 in the notice and demand shall be reduced by the amount of any part of
2 the charge which is paid before the beginning of such month.
3 (4) Limitations on additions.
4 (A) With respect to any return, the amount of the addition under para-
5 graph one of this subdivision shall be reduced by the amount of the
6 addition under paragraph two of this subdivision for any month to which
7 an addition applies under both paragraphs one and two. In any case
8 described in subparagraph (B) of paragraph one of this subdivision, the
9 amount of the addition under such paragraph one shall not be reduced
10 below the amount provided in such subparagraph.
11 (B) With respect to any return, the maximum amount of the addition
12 permitted under paragraph three of this subdivision shall be reduced by
13 the amount of the addition under paragraph one of this subdivision,
14 determined without regard to subparagraph (B) of such paragraph one,
15 which is attributable to the charge for which the notice and demand is
16 made and which is not paid within ten days of such notice and demand.
17 (c) Underpayment due to negligence. (1) If any part of an underpayment
18 of a vault charge is due to negligence or intentional disregard of this
19 chapter or any rules or regulations pursuant thereto, but without intent
20 to defraud, there shall be added to the charge a penalty equal to five
21 percent of the underpayment.
22 (2) There shall be added to the charge, in addition to the amount
23 determined under paragraph one of this subdivision, an amount equal to
24 fifty percent of the interest payable under subdivision (a) of this
25 section with respect to the portion of the underpayment described in
26 such paragraph one which is attributable to the negligence or inten-
27 tional disregard referred to in such paragraph one, for the period
28 beginning on the last date prescribed by law for payment of such under-
29 payment, determined without regard to any extension, and ending on the
30 date of the assessment of the charge, or, if earlier, the date of the
31 payment of the charge.
32 (d) Underpayment due to fraud. (1) If any part of an underpayment of a
33 vault charge is due to fraud, there shall be added to the charge a
34 penalty equal to fifty percent of the underpayment.
35 (2) There shall be added to the charge, in addition to the penalty
36 determined under paragraph one of this subdivision, an amount equal to
37 fifty percent of the interest payable under subdivision (a) of this
38 section with respect to the portion of the underpayment described in
39 such paragraph one which is attributable to fraud, for the period begin-
40 ning on the last day prescribed by law for payment of such underpayment,
41 determined without regard to any extension, and ending on the date of
42 the assessment of the charge, or, if earlier, the date of the payment of
43 the charge.
44 (3) The penalty under this subdivision shall be in lieu of any other
45 addition to the vault charge imposed by subdivision (b) or (c) of this
46 section.
47 (e) Additional penalty. Any person who, with fraudulent intent, shall
48 fail to pay any vault charge imposed by this chapter, or to make,
49 render, sign or certify any return, or to supply any information within
50 the time required by or under this chapter, shall be liable for a penal-
51 ty of not more than one thousand dollars, in addition to any other
52 amounts required under this chapter to be imposed, assessed and
53 collected by the commissioner of finance. The commissioner of finance
54 shall have the power, in his or her discretion, to waive, reduce or
55 compromise any penalty under this subdivision.
S. 8578 1213
1 (f) The interest and penalties imposed by this section shall be paid
2 and disposed of in the same manner as other revenues from this chapter.
3 Unpaid interest and penalties may be enforced in the same manner as the
4 vault charge imposed by this chapter.
5 (g)(1) Authority to set interest rates. The commissioner of finance,
6 shall set the rate of interest to be paid pursuant to subdivision (a) of
7 this section, but if no such rate of interest is set, such rate shall be
8 deemed to be set at seven and one-half percent per annum. Such rate
9 shall be the rate prescribed in paragraph two of this subdivision but
10 shall not be less than seven and one-half percent per annum. Any such
11 rate set by the commissioner of finance shall apply to vault charges, or
12 any portion thereof, which remain or become due on or after the date on
13 which such rate becomes effective and shall apply only with respect to
14 interest computed or computable for periods or portions of periods
15 occurring in the period in which such rate is in effect.
16 (2) General rule. The rate of interest set under this subdivision
17 shall be the sum of (i) the federal short-term rate as provided under
18 paragraph three of this subdivision, plus (ii) five percentage points.
19 (3) Federal short-term rate. For purposes of this subdivision:
20 (A) The federal short-term rate for any month shall be the federal
21 short-term rate determined by the United States secretary of the treas-
22 ury during such month in accordance with subsection (d) of section
23 twelve hundred seventy-four of the internal revenue code for use in
24 connection with section six thousand six hundred twenty-one of the
25 internal revenue code. Any such rate shall be rounded to the nearest
26 full percent, or, if a multiple of one-half of one percent, such rate
27 shall be increased to the next highest full percent.
28 (B) Period during which rate applies.
29 (i) In general. Except as provided in clause (ii) of this subpara-
30 graph, the federal short-term rate for the first month in each calendar
31 quarter shall apply during the first calendar quarter beginning after
32 such month.
33 (ii) Special rule for the month of September, nineteen hundred eight-
34 y-nine. The federal short-term rate for the month of April, nineteen
35 hundred eighty-nine shall apply with respect to setting the rate of
36 interest for the month of September, nineteen hundred eighty-nine.
37 (4) Publication of interest rate. The commissioner of finance shall
38 cause to be published in the City Record, and give other appropriate
39 general notice of, the interest rate to be set under this subdivision no
40 later than twenty days preceding the first day of the calendar quarter
41 during which such interest rate applies. The setting and publication of
42 such interest rate shall not be included within paragraph (a) of subdi-
43 vision five of section one thousand forty-one of the city charter of the
44 preceding municipality as it existed January first, nineteen hundred
45 ninety-four relating to the definition of a rule.
46 (h) Miscellaneous. (1) The certificate of the commissioner of finance
47 to the effect that a vault charge has not been paid, that a vault has
48 not been licensed, that a return has not been filed, that access has not
49 been allowed, or that information has not been supplied pursuant to the
50 provisions of this chapter, shall be presumptive evidence thereof.
51 (2) Cross-reference: For criminal penalties, see chapter forty of this
52 title.
53 § 11-2715 Notices and limitations of time. a. Any notice authorized
54 or required under the provisions of this chapter may be given to the
55 person for whom it is intended by mailing it in a postpaid envelope
56 addressed to such person at the address given in the return filed by him
S. 8578 1214
1 or her pursuant to the provisions of this chapter or in any application
2 made by him or her or, if no such return has been filed or application
3 made, then to the address of the premises immediately adjoining the
4 vault. The mailing of a notice as in this subdivision provided, shall
5 be presumptive evidence of the receipt of the same by the person to whom
6 addressed. Any period of time which is determined according to the
7 provisions of this chapter by the giving of notice shall commence to run
8 from the date of mailing of such notice as in this subdivision provided.
9 b. The provisions of the civil practice law and rules or any other law
10 relative to limitations of time for the enforcement of a civil remedy
11 shall not apply to any proceeding or action taken by the city to
12 appraise, assess, determine, levy or enforce the collection of any vault
13 charge or penalty provided by this chapter. However, except in the case
14 of a wilfully false or fraudulent return with intent to evade the vault
15 charge, no assessment shall be made after the expiration of more than
16 three years from the date of such return; provided, however, that where
17 no return has been filed as provided by law, the annual vault charge may
18 be assessed at any time.
19 c. Where, before the expiration of the period prescribed in this
20 section for the assessment of an additional vault charge, a person has
21 consented in writing that such period be extended, the amount of such
22 additional vault charge due may be determined at any time within such
23 extended period. The period so extended may be further extended by
24 subsequent consents in writing made before the expiration of the
25 extended period.
26 d. If any return, claim, statement, notice, application, or other
27 document required to be filed, or any payment required to be made, with-
28 in a prescribed period or on or before a prescribed date under authority
29 of any provision of this chapter is, after such period or such date,
30 delivered by United States mail to the commissioner of finance, the tax
31 appeals tribunal, bureau, office, officer or person with which or with
32 whom such document is required to be filed, or to which or to whom such
33 payment is required to be made, the date of the United States postmark
34 stamped on the envelope shall be deemed to be the date of delivery.
35 This subdivision shall apply only if the postmark date falls within the
36 prescribed period or on or before the prescribed date for the filing of
37 such document, or for making the payment, including any extension grant-
38 ed for such filing or payment, and only if such document or payment was
39 deposited in the mail, postage prepaid, properly addressed to the
40 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
41 cer or person with which or with whom the document is required to be
42 filed or to which or to whom such payment is required to be made. If any
43 document is sent by United States registered mail, such registration
44 shall be prima facie evidence that such document was delivered to the
45 commissioner of finance, the tax appeals tribunal, bureau, office, offi-
46 cer or person to which or to whom addressed, and the date of registra-
47 tion shall be deemed the postmark date. The commissioner of finance and,
48 where relevant, the tax appeals tribunal are authorized to provide by
49 regulation the extent to which, such provisions with respect to prima
50 facie evidence of delivery and the postmark date, shall apply to certi-
51 fied mail. This subdivision shall apply in the case of postmarks not
52 made by the United States postal service only if and to the extent
53 provided by regulation of the commissioner of finance or, where rele-
54 vant, the tax appeals tribunal.
55 e. When the last day prescribed under authority of this chapter,
56 including any extension of time, for performing any act falls on a
S. 8578 1215
1 Saturday, Sunday or legal holiday in the state, the performance of such
2 act shall be considered timely if it is performed on the next succeeding
3 day which is not a Saturday, Sunday or legal holiday.
4 § 11-2715.1 Vault charge amnesty program. a. Notwithstanding any other
5 provision of law to the contrary, there is hereby established a nine-
6 month amnesty program, beginning January first, nineteen hundred eight-
7 y-nine and ending September thirtieth, nineteen hundred eighty-nine
8 (hereinafter referred to as the "amnesty period"), for all persons owing
9 the annual vault charge imposed by this chapter. Such amnesty program
10 shall be administered by the commissioner of finance and shall apply to
11 liabilities for annual vault charge years ending prior to June first,
12 nineteen hundred eighty-nine.
13 b. (1) A person seeking amnesty pursuant to this section must, during
14 the amnesty period, file a written application therefor with the commis-
15 sioner of finance, on a form prescribed by the commissioner, and must
16 provide such information as the commissioner may require. In order to
17 qualify for amnesty, such person must pay all annual vault charges for
18 which he or she is liable. Upon payment by such person to the commis-
19 sioner of all such charges as provided in this subdivision, the commis-
20 sioner shall waive any applicable penalties and interest, and no civil,
21 administrative or criminal action or proceeding shall be brought against
22 such person with respect to the charges so paid. In addition, the
23 commissioner shall release the lien binding upon the premises immediate-
24 ly adjoining the vault pursuant to subdivision c of section 11-2711 of
25 this chapter for charges which became payable prior to the time such
26 person acquired title to the premises. Failure to pay all charges as
27 provided in this subdivision shall invalidate any amnesty granted pursu-
28 ant to this section.
29 (2) In the case of any vault adjoining premises owned by a person who
30 (A) prior to January first, nineteen hundred eighty-nine, paid all annu-
31 al vault charges and interest and penalties for which he or she was
32 liable, and (B) is otherwise in full compliance with this chapter, the
33 commissioner of finance shall release the lien binding upon the premises
34 immediately adjoining the vault pursuant to subdivision c of section
35 11-2711 of this chapter for charges which became payable prior to the
36 time such person acquired title to the premises.
37 c. Amnesty shall not be granted to any person subject to the annual
38 vault charge who is a party to any civil litigation which is pending on
39 the date of such person's application in any court of this state or the
40 United States for nonpayment or other delinquency in relation to the
41 annual vault charge. A civil litigation shall not be deemed to be pend-
42 ing if such person withdraws from such litigation prior to the granting
43 of amnesty.
44 d. No refund or credit shall be granted of any penalty or interest
45 paid prior to the time the person subject to the annual vault charge
46 makes a request for amnesty pursuant to subdivision b of this section.
47 e. Unless the commissioner of finance on his or her own motion rede-
48 termines the amount of the annual vault charge, no refund or credit
49 shall be granted of any charges paid under this section.
50 f. The commissioner of finance shall formulate such regulations as are
51 necessary, issue forms and instructions, and take any and all other
52 actions necessary to implement the provisions of this section. Further-
53 more, prior to and throughout the duration of the amnesty period, the
54 commissioner of finance shall implement a plan for prominently announc-
55 ing and explaining the amnesty program. Such plan shall be reasonably
56 calculated to inform all property owners who may be liable for vault
S. 8578 1216
1 charges and may include written announcements sent in tax bills and
2 other mailings done by the city of Staten Island to property owners,
3 public service announcements, advertisements in newspapers of general
4 circulation and notification of community boards. The plan shall
5 include, but not be limited to, information which explains the determi-
6 nation of vault size and charge.
7 § 11-2715.3 Severability. If any clause, sentence, paragraph, section
8 or part of this chapter or the application thereof to any person or
9 circumstance shall for any reason be adjudged by a court of competent
10 jurisdiction to be invalid, such judgment shall not affect, impair or
11 invalidate the remainder of this chapter or the application thereof to
12 other persons or circumstances, but shall be confined in its operation
13 to the clause, sentence, paragraph, section or part thereof directly
14 involved in the controversy in which such judgment shall have been
15 rendered and to the person or circumstance involved.
16 § 11-2716 Construction and enforcement. This chapter shall be
17 construed and enforced in conformity with chapter nine hundred forty-
18 nine of the laws of nineteen hundred sixty-two, pursuant to which it is
19 enacted.
20 § 11-2717 Effective date. This chapter shall take effect July first,
21 nineteen hundred sixty-two and shall remain in effect so long as the
22 power of the city to adopt such laws for revenue purposes shall exist.
23 CHAPTER 28
24 CLAIMS AGAINST FIRE INSURANCE PROCEEDS
25 § 11-2801 Claims against fire insurance proceeds. Definitions. 1. As
26 used in this chapter, any inconsistent provision of law notwithstanding,
27 the following terms shall have the following meanings:
28 (a) "Commissioner" means the commissioner of finance.
29 (b) "Real property" means property upon which there is erected any
30 residential, commercial or industrial building or structure except a one
31 or two family residential structure.
32 (c) "Lien" means any lien including liens for taxes, special ad valo-
33 rem levies, special assessments and municipal charges arising by opera-
34 tion of law against property in favor of the city and remaining undisc-
35 harged for a period of one year or more.
36 (d) "Board" means the board created by subdivision five of this
37 section.
38 (e) "Special lien" means a lien upon fire insurance proceeds pursuant
39 to this chapter and chapter seven hundred thirty-eight of the laws of
40 nineteen hundred seventy-seven.
41 (f) "Fund" means the fire insurance proceeds fund created pursuant to
42 subdivision ten of this section.
43 2. The commissioner shall file a notice of intention to claim against
44 the proceeds of fire insurance policies pursuant to section twenty-two
45 of the general municipal law with the state superintendent of insurance
46 for entry in the index of liens maintained by him or her as provided in
47 section three hundred thirty-one of the insurance law.
48 3. Prior to the payment of any proceeds of a policy of insurance for
49 damages caused by fire to real property, which policy insures the inter-
50 est of an owner and is issued on real property located within the city,
51 and following notification to the commissioner by an insurer of the
52 filing of a claim for payment of such proceeds, the commissioner shall
53 claim, by serving a certificate of lien, against such proceeds to the
54 extent of any lien, including interest and penalties to the date of the
S. 8578 1217
1 claim, thereon, which claim when made and perfected in the manner
2 provided for in section twenty-two of the general municipal law and
3 section three hundred thirty-one of the insurance law, shall constitute
4 a special lien against such proceeds and shall, as to such proceeds, be
5 prior to all other liens and claims except the claim of a mortgagee of
6 record named in such policy. Notice of the service of the certificate
7 of the special lien shall be given to the insured by certified mail.
8 4. The provisions of this chapter shall not be deemed or construed to
9 alter or impair the right of the city to acquire or enforce any lien
10 against property but shall be in addition to any other power provided by
11 law to acquire or enforce such right.
12 5. The fire insurance proceeds claims board is hereby established to
13 administer the provisions of subdivisions six through thirteen of this
14 section. The board shall consist of the first deputy mayor, who shall
15 be chairperson, the commissioner of buildings, the commissioner of hous-
16 ing preservation and development, and the commissioner of finance, each
17 of whom shall have the power to designate an alternate to represent him
18 or her at board meetings with all the rights and powers, including the
19 right to vote, reserved to all board members, provided that such desig-
20 nation shall be in writing to the chairperson. So far as practicable and
21 subject to the approval of the mayor, the services of all other city
22 departments and agencies shall be made available by their respective
23 heads to the board for the carrying out of its functions. Each member
24 shall serve without additional compensation except for expenses actually
25 incurred.
26 6. Whenever the proceeds of policy of fire insurance which will be or
27 has been paid to the city instead of an insured, all or part of such
28 proceeds may be paid or released to the insured if the insured satisfies
29 the board that the affected premises have been or will be repaired or
30 restored, that such repairs or restoration are in the public interest,
31 and the insured is issued and complies with a certificate of the board
32 pursuant to this chapter. To secure such payment or release of proceeds
33 the insured must notify the board within forty-five days after the mail-
34 ing to the insured of a notice of the service of the certificate of
35 special lien pursuant to subdivision three of this section, of the
36 intention to restore or repair the affected premises and must file with
37 the board a completed application with all required supporting documen-
38 tation pursuant to subdivision seven of this section within sixty days
39 thereafter, unless the board grants an extension for a stated period of
40 time.
41 7. The release or return to the insured of any amounts to which he or
42 she or it would otherwise be entitled to claim shall be subject to the
43 following conditions:
44 (a) Such release or return shall be subject to the repair or restora-
45 tion of the affected premises, in accordance with applicable building
46 laws, to the condition it was in prior to the time the lien of the city
47 arose, or to an improved condition.
48 (b) The insured shall file with the board an application in affidavit
49 form, with such supporting documentation as the board shall require,
50 containing the following:
51 (i) A complete description of the nature and extent of the damage to
52 the insured premises and of the condition of the premises prior to the
53 time the lien of the city arose;
54 (ii) A complete description of the nature of the repairs or restora-
55 tion to be undertaken and the cost thereof;
S. 8578 1218
1 (iii) A statement as to the source of funds needed to complete such
2 repairs or restoration if the insurance proceeds are not sufficient
3 therefor;
4 (iv) The name and address of each contractor who will effect such
5 repairs or restoration;
6 (v) An estimated time schedule showing how long the repairs or resto-
7 ration, and each phase thereof, will take; and
8 (vi) Such other information as may be required by the board to enable
9 it to determine whether the repairs or restoration are in the public
10 interest and will be or have been timely and properly made.
11 (c) Upon a preliminary approval by the board of an application pursu-
12 ant to paragraph (b) of this subdivision, the board may issue a certif-
13 icate, to be signed by the chairperson or his or her designee; evidenc-
14 ing the right of release to the insured of amounts representing
15 insurance proceeds, upon such conditions as may be set forth therein.
16 The repairs or restoration required by the board shall be completed in
17 compliance with the terms and conditions of the certificate prior to the
18 release or return of any part of the insurance proceeds, provided howev-
19 er that the board may, upon the written request of the insured and in
20 its sole discretion, approve a prior release of such proceeds or a
21 portion thereof, in a lump sum or in installments, where the insured
22 certifies and demonstrates that such release is required to permit such
23 repairs or restoration to go forward. Any such insurance proceeds
24 released or returned prior to the completion of the repairs or restora-
25 tion required by the board may be paid directly to the contractor or
26 contractors responsible for making such repairs or restoration. Such
27 payment shall, to the extent thereof, release the board from further
28 liability to the insured.
29 8. If the insured: (i) fails to notify the city of his or her or its
30 intention to repair or restore the affected premises as required in
31 subdivision six of this section, (ii) fails to file a completed applica-
32 tion pursuant to this chapter, or (iii) fails to obtain a certificate
33 from the board or comply therewith within the time set forth, the right
34 of the insured to assert a claim against the insurance proceeds, except
35 to the extent they exceed the amount of the lien, shall terminate.
36 9. Until such termination, any insurance proceeds received by the city
37 shall be deposited in a special fund and shall be retained therein.
38 Upon termination of the insured's right to claim against the proceeds,
39 the proceeds and any interest accrued thereon shall be applied to the
40 liens affecting the premises in a manner determined by the board and may
41 be transferred to the general fund.
42 10. There shall be established in the office of the commissioner a
43 fund for the deposit of fire insurance proceeds to be held and applied
44 in accordance with this chapter. Such funds shall not be held together
45 with the general tax levies in the general fund.
46 11. The lien or liens against the affected premises upon which the
47 special lien against proceeds is based shall continue in full force and
48 effect except to the extent that such lien or liens are or have been
49 paid.
50 12. The board may, pursuant to this chapter, release, compromise or
51 adjust the special lien upon insurance proceeds created by this chapter.
52 Any certificate issued by such board pursuant to this chapter shall be
53 for the purpose of preserving and evidencing the right of release of the
54 special lien created by this chapter, shall be subject solely to the
55 provisions of this chapter, and shall not be deemed to be a contract
56 subject to city regulation. Any repair or restoration performed in
S. 8578 1219
1 anticipation of a release of insurance proceeds shall not be deemed to
2 be a public work or municipal project nor to have been done pursuant to
3 a municipal contract.
4 13. The board shall be empowered to promulgate rules and regulations
5 and to adopt approved forms to be used by applicants.
6 CHAPTER 40
7 CRIMES AND OTHER OFFENSES: SEIZURES AND FORFEITURES
8 § 11-4001 Definitions. (a) As used in this chapter, the term "person"
9 shall include, but shall not be limited to, an individual, corporation
10 (including a dissolved corporation), partnership, association, trust or
11 estate.
12 (b) As used in this chapter, the term "person" shall also include an
13 officer, employee or agent of a corporation; a member, employee or agent
14 of a partnership or association; an employee or agent of an individual
15 proprietorship; an employee or agent of an estate or trust; or a fiduci-
16 ary.
17 (c) As used in this chapter, the term "felony" and the term "misdemea-
18 nor" shall have the same meaning as they have in the penal law, and the
19 disposition of such offenses and the sentences imposed therefor shall be
20 as provided in such law, except: (1) notwithstanding the provisions of
21 paragraph a of subdivision one of section 80.00 and paragraph (a) of
22 subdivision one of section 80.10 of the penal law relating to the fine
23 for a felony, the court may impose a fine not to exceed the greater of
24 double the amount of the underpaid tax liability resulting from the
25 commission of the crime or fifty thousand dollars, or, in the case of a
26 corporation the fine may not exceed the greater of double the amount of
27 the underpaid tax liability resulting from the commission of the crime
28 or two hundred fifty thousand dollars, and (2) notwithstanding the
29 provisions of subdivision one of section 80.05 and paragraph (b) of
30 subdivision one of section 80.10 of the penal law relating to the fine
31 for a class A misdemeanor, the court may impose a fine not to exceed ten
32 thousand dollars, except that in the case of a corporation the fine may
33 not exceed twenty thousand dollars.
34 (d) As used in this chapter:
35 (1) "city" shall mean the city of Staten Island; and
36 (2) "state" shall mean the state of New York.
37 § 11-4002 Tax fraud acts. (a) As used in this chapter, "tax fraud act"
38 means willfully engaging in an act or acts or willfully causing another
39 to engage in an act or acts pursuant to which a person:
40 (1) fails to make, render, sign, certify, or file any return or report
41 required under the provisions of any designated chapter of this title or
42 any rule or regulation promulgated thereunder within the time required
43 by or under the provisions of any designated chapter of this title or
44 such rule or regulation;
45 (2) knowing that a return, report, statement or other document under
46 any designated chapter of this title contains any materially false or
47 fraudulent information, or omits any material information, files or
48 submits that return, report, statement or document with the city or the
49 state, or with any public office or public officer of the city or the
50 state;
51 (3) knowingly supplies or submits materially false or fraudulent
52 information in connection with any return, audit, investigation, or
53 proceeding or fails to supply information within the time required by or
S. 8578 1220
1 under the provisions of any designated chapter of this title or any rule
2 or regulation promulgated under any designated chapter of this title;
3 (4) engages in any scheme to defraud the city or the state or a
4 government instrumentality of the city or of the state by false or frau-
5 dulent pretenses, representations or promises as to any material matter,
6 in connection with any tax imposed under any designated chapter of this
7 title or any matter under any designated chapter of this title;
8 (5) fails to remit any tax collected in the name of the city or the
9 state or on behalf of the city or the state when such collection is
10 required under any designated chapter of this title;
11 (6) fails to collect any tax required to be collected under chapter
12 twelve, thirteen, twenty-three-A, twenty-three-B or twenty-five of this
13 title;
14 (7) with intent to evade any tax imposed under any designated chapter
15 of this title, fails to pay such tax; or
16 (8) issues an exemption certificate, interdistributor sales certif-
17 icate, resale certificate, or any other document capable of evidencing a
18 claim that taxes imposed under a designated chapter of this title do not
19 apply to a transaction, which he or she does not believe to be true and
20 correct as to any material matter, which omits any material information,
21 or which is false, fraudulent, or counterfeit.
22 (b) For purposes of this section, the term "willfully" shall mean
23 acting with either intent to defraud, intent to evade the payment of
24 taxes or intent to avoid a requirement of this title, a lawful require-
25 ment of the commissioner or a known legal duty.
26 (c) For purposes of this chapter, the term "designated chapter" shall
27 mean chapter five, six, seven, eight, nine, eleven, twelve, thirteen,
28 fourteen, fifteen, twenty-one, twenty-two, twenty-three-A, twenty-four,
29 twenty-five or twenty-seven of this title.
30 § 11-4003 City criminal tax fraud in the fifth degree. A person
31 commits city criminal tax fraud in the fifth degree when he or she
32 commits a tax fraud act. City criminal tax fraud in the fifth degree is
33 a class A misdemeanor.
34 § 11-4004 City criminal tax fraud in the fourth degree. A person
35 commits city criminal tax fraud in the fourth degree when he or she
36 commits a tax fraud act or acts and, with the intent to evade any tax
37 due under any designated chapter of this title, or to defraud the city
38 or the state or any instrumentality of the city or the state, the person
39 pays the city or the state or any public office or public officer of the
40 city or the state or any instrumentality of the city or state, whether
41 by means of underpayment or receipt of refund or both, in a period of
42 not more than one year in excess of three thousand dollars less than the
43 tax liability that is due. City criminal tax fraud in the fourth degree
44 is a class E felony.
45 § 11-4005 City criminal tax fraud in the third degree. A person
46 commits city criminal tax fraud in the third degree when he or she
47 commits a tax fraud act or acts and, with the intent to evade any tax
48 due under any designated chapter of this title, or to defraud the city
49 or the state or any instrumentality of the city or the state, the person
50 pays the city or the state or any public office or public officer of the
51 city or the state or any instrumentality of the city or state, whether
52 by means of underpayment or receipt of refund or both, in a period of
53 not more than one year in excess of ten thousand dollars less than the
54 tax liability that is due. City criminal tax fraud in the third degree
55 is a class D felony.
S. 8578 1221
1 § 11-4006 City criminal tax fraud in the second degree. A person
2 commits city criminal tax fraud in the second degree when he or she
3 commits a tax fraud act or acts and, with the intent to evade any tax
4 due under any designated chapter of this title, or to defraud the city
5 or the state or any instrumentality of the city or the state, the person
6 pays the city or the state or any public office or public officer of the
7 city or the state or any instrumentality of the city or state, whether
8 by means of underpayment or receipt of refund or both, in a period of
9 not more than one year in excess of fifty thousand dollars less than the
10 tax liability that is due. City criminal tax fraud in the second degree
11 is a class C felony.
12 § 11-4007 City criminal tax fraud in the first degree. A person
13 commits city criminal tax fraud in the first degree when he or she
14 commits a tax fraud act or acts and, with the intent to evade any tax
15 due under any designated chapter of this title, or to defraud the city
16 or the state or any instrumentality of the city or the state, the person
17 pays the city or the state or any public office or public officer of the
18 city or the state or any instrumentality of the city or state, whether
19 by means of underpayment or receipt of refund or both, in a period of
20 not more than one year in excess of one million dollars less than the
21 tax liability that is due. City criminal tax fraud in the first degree
22 is a class B felony.
23 § 11-4008 Aggregation. For purposes of this chapter, the payments due
24 and not paid under any designated chapter of this title pursuant to a
25 common scheme or plan or due and not paid, within one year, may be
26 charged in a single count, and the amount of underpaid tax liability
27 incurred, within one year, may be aggregated in a single count.
28 § 11-4009 Non-preemption; penal law anticipatory offenses and accesso-
29 rial liability apply. (a) Unless expressly stated otherwise, the penal-
30 ties provided in this chapter or under any other chapter of this title
31 shall not preclude prosecution for any offense under the penal law or
32 any other criminal statute.
33 (b) The offenses specified in title G of the penal law and the
34 provisions of article twenty of the penal law are applicable to all
35 offenses defined in this chapter.
36 § 11-4010 Failure to obey subpoenas; false testimony. (a) Any person
37 who, being duly subpoenaed, pursuant to chapter five, six, seven, eight,
38 nine, eleven, twelve, thirteen, fourteen, fifteen, twenty-one, twenty-
39 two, twenty-four, twenty-five or twenty-seven of this title or the
40 provisions of the civil practice law and rules, in connection with a
41 matter arising under any of such chapters, to attend as a witness or to
42 produce books, accounts, records, memoranda, documents or other papers,
43 (i) fails or refuses to attend without lawful excuse, (ii) refuses to be
44 sworn, (iii) refuses to answer any material and proper question, or (iv)
45 refuses, after reasonable notice, to produce books, papers and documents
46 in his or her possession or under his or her control which constitute
47 material and proper evidence shall be guilty of a misdemeanor.
48 (b) Any person who shall testify falsely in any material matter pend-
49 ing before the commissioner of finance with respect to any of the chap-
50 ters specified in subdivision (a) of this section shall be guilty of and
51 punishable for perjury.
52 § 11-4011 Failure to file bond. Any person willfully failing to file a
53 bond where such filing is required pursuant to section 11-1203, 11-1304
54 or 11-2505 of this title shall be guilty of a misdemeanor. (a) Any
55 person who willfully attempts in any manner to evade or defeat any tax
56 imposed by chapter thirteen of this title or payment thereof where such
S. 8578 1222
1 tax is unpaid on ten thousand cigarettes or more or has previously been
2 convicted two or more times of a crime set forth in this chapter relat-
3 ing to cigarette taxes; shall be guilty of a class E felony.
4 (b) Any person, other than an agent so authorized by the commissioner
5 of finance, who possesses or transports for the purpose of sale any
6 unstamped or unlawfully stamped packages of cigarettes subject to tax
7 under chapter thirteen of this title, or who sells or offers for sale
8 unstamped or unlawfully stamped packages of cigarettes in violation of
9 the provisions of such chapter shall be guilty of a misdemeanor. Any
10 person who violates the provisions of this subdivision after having
11 previously been convicted of a violation of this subdivision within the
12 preceding five years shall be guilty of a class E felony.
13 (c) (1) Any person, other than an agent so authorized by the commis-
14 sioner of finance, who willfully possesses or transports for the purpose
15 of sale ten thousand or more cigarettes subject to the tax imposed by
16 chapter thirteen of this title in any unstamped or unlawfully stamped
17 packages or who willfully sells or offers for sale ten thousand or more
18 cigarettes in any unstamped or unlawfully stamped packages in violation
19 of such chapter shall be guilty of a class E felony.
20 (2) Any person, other than an agent appointed by the commissioner of
21 finance, who willfully possesses or transports for the purpose of sale
22 thirty thousand or more cigarettes subject to the tax imposed by chapter
23 thirteen of this title in any unstamped or unlawfully stamped packages
24 or who willfully sells or offers for sale thirty thousand or more ciga-
25 rettes in any unstamped or unlawfully stamped packages in violation of
26 such chapter shall be guilty of a class D felony.
27 (d) For the purposes of this section, the possession or transportation
28 within this city by any person, other than an agent, at any one time of
29 five thousand or more cigarettes in unstamped or unlawfully stamped
30 packages shall be presumptive evidence that such cigarettes are
31 possessed or transported for the purpose of sale and are subject to the
32 tax imposed by chapter thirteen of this title. With respect to such
33 possession or transportation, any provisions of chapter thirteen of this
34 title providing for a time period during which a use tax imposed by such
35 chapter may be paid on unstamped cigarettes or unlawfully or improperly
36 stamped cigarettes or during which such cigarettes may be returned to an
37 agent shall not apply. The possession within this city of more than four
38 hundred cigarettes in unstamped or unlawfully stamped packages by any
39 person other than an agent at any one time shall be presumptive evidence
40 that such cigarettes are subject to tax as provided by chapter thirteen
41 of this title.
42 (e) Nothing in this section shall apply to common or contract carriers
43 or warehouseman while engaged in lawfully transporting or storing
44 unstamped packages of cigarettes as merchandise, nor to any employee of
45 such carrier or warehouseman acting within the scope of his employment,
46 nor to public officers or employees in the performance of their official
47 duties requiring possession or control of unstamped or unlawfully
48 stamped packages of cigarettes, nor to temporary incidental possession
49 by employees or agents of persons lawfully entitled to possession, not
50 to persons whose possession is for the purpose of aiding police officers
51 in performing their duties.
52 (f) Any willful act or omission, other than those described in section
53 11-4002 of this chapter or subdivision (a), (b), (c), (d), (e) or (g) of
54 this section, by any person which constitutes a violation of any
55 provision of chapter thirteen of this title or subchapter one of chapter
S. 8578 1223
1 two of title twenty of the code of the preceding municipality shall
2 constitute a misdemeanor.
3 (g) Any person who falsely or fraudulently makes, alters or counter-
4 feits any stamp prescribed by the commissioner of finance under the
5 provisions of chapter thirteen of this title, or causes or procures to
6 be falsely or fraudulently made, altered or counterfeited any such
7 stamp, or knowingly and willfully utters, purchases, passes or tenders
8 as true any such false, altered or counterfeited stamp, or knowingly and
9 willfully possess any cigarettes in packages bearing any such false,
10 altered or counterfeited stamp, and any person who knowingly and will-
11 fully makes, causes to be made, purchases or receives any device for
12 forging or counterfeiting any stamp, prescribed by the commissioner of
13 finance under the provisions of chapter thirteen of this title, or who
14 knowingly and willfully possesses any such device, shall be guilty of a
15 class E felony. For the purposes of this subdivision, the words "stamp
16 prescribed by the commissioner of finance" shall include a stamp,
17 impression or imprint made by a metering machine, the design of which
18 has been approved by the commissioner of finance and the state tax
19 commission.
20 § 11-4012.1 Tobacco products tax. (a) Attempt to evade or defeat tax.
21 Any person who willfully attempts in any manner to evade or defeat any
22 tax imposed by section 11-1302.1 of this chapter or the payment thereof
23 shall, in addition to any other penalties provided by law, be guilty of
24 a misdemeanor.
25 (b) Any willful act or omission with respect to the tax imposed by
26 section 11-1302.1 of this chapter, with the exception of those described
27 in subdivision (a) of this section, by any person which constitutes a
28 violation of any provision of chapter thirteen of this title or chapter
29 two of title twenty of the code of the preceding municipality shall
30 constitute a misdemeanor.
31 § 11-4014 Tax on commercial motor vehicles and motor vehicles for
32 transportation of passengers. (a) Any person who counterfeits or forges,
33 or causes or procures to be counterfeited or forged, or aids or assists
34 in counterfeiting or forging, by any way, art, or means, any stamp,
35 indicia of payment or indicia that no tax is payable authorized by chap-
36 ter eight of this title, or who knowingly acquires, possesses, disposes
37 of or uses such a counterfeited or forged stamp, indicia of payment or
38 indicia that no tax is payable, or who transfers a stamp, indicia of
39 payment or indicia that no tax is payable where such a transfer is not
40 authorized by such chapter shall be guilty of a misdemeanor.
41 (b) The owner or driver of any motor vehicle subject to the tax
42 imposed by chapter eight who, upon demand, shall fail to exhibit the
43 stamp or other indicia of payment of the tax to the commissioner of
44 finance, his duly authorized agent or employee, or any police officer of
45 this city or state, as required by subdivision a of section 11-809 of
46 this chapter, shall be guilty of a misdemeanor.
47 § 11-4015 Tax on owners of motor vehicles. (a) Any person who counter-
48 feits or forges, or causes or procures to be counterfeited or forged, or
49 aids or assists in counterfeiting or forging, by any way, art, or means,
50 any receipt or other document evidencing payment or exemption from the
51 tax imposed by chapter twenty-two of this title, or who knowingly
52 acquires, possesses, disposes of or uses such a counterfeited or forged
53 receipt or other document, shall be guilty of a misdemeanor.
54 (b) Any person who uses, operates or parks or permits the use, opera-
55 tion or parking upon any public highway or street of a motor vehicle
56 owned by him or her or under his or her control for which the tax
S. 8578 1224
1 imposed by chapter twenty-two of this title has not been paid in accord-
2 ance with the provisions of such chapter and the regulations prescribed
3 thereunder shall be guilty of a misdemeanor. For the purpose of this
4 subdivision any person using, operating or parking a motor vehicle shall
5 be presumed to be doing so with the permission of the owner of such
6 motor vehicle.
7 (c) To the extent that any other section of this chapter is applicable
8 to the tax imposed by chapter twenty-two of this title, any reference in
9 such section to the commissioner of finance shall be deemed a reference
10 to the commissioner of motor vehicles or to the commissioner of finance
11 if designated as his or her agent.
12 § 11-4016 Hotel room occupancy tax. (a) Any person who willfully fails
13 to file a registration certificate as required pursuant to the
14 provisions of chapter twenty-five of this title and such data in
15 connection therewith as the commissioner of finance by regulation or
16 otherwise may require, or willfully fails to display or surrender a
17 certificate of authority as required by chapter twenty-five of this
18 title, or willfully assigns or transfers such certificate of authority,
19 shall be guilty of a misdemeanor, provided, however, that the provisions
20 of this subdivision shall not apply to a failure to surrender a certif-
21 icate of authority which is required to be surrendered where business
22 never commenced.
23 (b) Any person who willfully fails to charge separately the tax
24 imposed under chapter twenty-five of this title or willfully fails to
25 state such tax separately on any bill, statement, memorandum or receipt
26 issued or employed by such person upon which the tax is required to be
27 stated separately as provided in such chapter, or who shall refer or
28 cause reference to be made to this tax in a form or manner other than
29 required by such chapter, shall be guilty of a misdemeanor.
30 § 11-4017 Violation of secrecy provisions. Any person who violates the
31 provisions of subdivision a of section 11-1214, subdivision (a) of
32 section 11-2415, subdivision a of section 11-2115, subdivision a of
33 section 11-1516, subdivision a of section 11-818, subdivision a of
34 section 11-716, subdivision a of section 11-2215, subdivision a of
35 section 11-1116, subdivision one of section 11-688, subdivision one of
36 section 11-538, subdivision a of section 11-2516, or subdivision a of
37 section 11-1414 of this title shall be guilty of a misdemeanor.
38 § 11-4018 Other offenses. (a) Any person who willfully fails to keep
39 or retain any records required to be kept or retained by chapter seven,
40 twelve, fourteen, twenty-one, twenty-two, twenty-four or twenty-seven of
41 this title shall be guilty of a misdemeanor.
42 (b) Any person willfully simulating, altering, defacing, destroying or
43 removing any evidence of the filing of a return or the payment of a tax
44 provided for in chapter twenty-one of this title shall be guilty of a
45 misdemeanor.
46 (c) Any person failing to file a certificate of registration or infor-
47 mation registration certificate as required by chapter eight of this
48 title shall be guilty of a misdemeanor.
49 (d) Any person refusing access to personnel authorized by the commis-
50 sioner of finance to inspect any vault or any premises concerning which
51 a return or information return may be required under chapter twenty-sev-
52 en of this title shall be guilty of a misdemeanor.
53 § 11-4019 Jurisdiction. For purposes of the taxes imposed by chapter
54 five or six of this title, any prosecution under this chapter may be
55 conducted in any county where the person against whom a violation or
56 violations of any of the provisions of this chapter are charged resides
S. 8578 1225
1 or has a place of business, or from which such person received any
2 income, or in any county in which any such violation is committed.
3 (a) Notwithstanding any other provision of law, the corporation coun-
4 sel shall have concurrent jurisdiction with any district attorney in the
5 prosecution of any offenses under this chapter.
6 (b) Notwithstanding any other provision of law, the attorney general
7 shall have concurrent jurisdiction with the corporation counsel and with
8 any district attorney in the prosecution of any offenses under this
9 chapter relating to the tax imposed by chapter thirteen of this title,
10 as well as any offenses arising out of such prosecution.
11 § 11-4020 Disposition of fines. All fines levied under this chapter
12 shall be paid to the commissioner of finance and deposited in the gener-
13 al fund of the city.
14 § 11-4021 Seizure and forfeiture of cigarettes. (a) Whenever a police
15 officer designated in section 1.20 of the criminal procedure law or a
16 peace officer designated in subdivision five of section 2.10 of such
17 law, acting pursuant to his or her special duties, shall discover any
18 cigarettes subject to any tax provided by chapter thirteen of this
19 title, and upon which the tax has not been paid or the stamps not
20 affixed as required by such chapter, they are hereby authorized and
21 empowered forthwith to seize and take possession of such cigarettes,
22 together with any vending machine or receptacle in which they are held
23 for sale. Such cigarettes, vending machine or receptacle seized by a
24 police officer or such peace officer shall be turned over to the commis-
25 sioner of finance.
26 (b) The seized cigarettes and any vending machine or receptacle seized
27 therewith, but not the money contained in such vending machine or recep-
28 tacle shall thereupon be forfeited to the city, unless the person from
29 whom the seizure is made, or the owner of such seized cigarettes, vend-
30 ing machine or receptacle, or any other person having an interest in
31 such property, shall within ten days of such seizure, apply to the
32 commissioner of finance for a hearing to determine the propriety of the
33 seizure, or unless the commissioner of finance shall on his or her own
34 motion release the seized cigarettes, vending machine or receptacle.
35 After such hearing the commissioner of finance shall give notice of his
36 or her decision to the petitioner. The decision of the commissioner
37 shall be reviewable for error, illegality, unconstitutionality or any
38 other reason whatsoever by a proceeding under article seventy-eight of
39 the civil practice law and rules if application therefor is made to the
40 supreme court within thirty days after the giving of the notice of such
41 decision. Such proceeding shall not be instituted unless there shall
42 first be filed with the commissioner of finance an undertaking, issued
43 by a surety company authorized to transact business in New York state
44 and approved by the superintendent of insurance of New York state as to
45 solvency and responsibility, in such amount as a justice of the supreme
46 court shall approve, to the effect that if such proceeding be dismissed,
47 or the seizure confirmed, the petitioner will pay all costs and charges
48 which may accrue in the prosecution of the proceeding.
49 (c) The commissioner of finance may, within a reasonable time after
50 the forfeiture to the city of such vending machines or receptacles, upon
51 publication of a notice to such effect for at least five successive
52 days, in a newspaper published or circulated in the city, sell such
53 forfeited vending machines or receptacles at public sale and pay the
54 proceeds into the treasury of the city to the credit of the general
55 fund. Such seized vending machines or receptacles may be sold prior to
56 forfeiture if the owner of the seized property consents to the sale.
S. 8578 1226
1 Notwithstanding any other provision of this section, the commissioner of
2 finance may enter into an agreement with the state tax commission to
3 provide for the disposition between the city and state of the proceeds
4 from any such sale. The commissioner of finance may also transfer any
5 seized cigarettes to the state for destruction. All cigarettes forfeited
6 to the state shall be destroyed or used for law enforcement purposes,
7 except that cigarettes that violate, or are suspected of violating,
8 federal trademark laws or import laws shall not be used for law enforce-
9 ment purposes. If the commissioner determines the cigarettes may not be
10 used for law enforcement purposes, the commissioner of finance must,
11 within a reasonable time after the forfeiture to the city of such ciga-
12 rettes, upon publication of a notice to such effect for at least five
13 successive days, prior to destruction, in a newspaper published or
14 circulated in the city, destroy such forfeited cigarettes. Such commis-
15 sioner may, prior to any destruction of cigarettes, permit the true
16 holder of the trademark rights in the cigarettes to inspect such
17 forfeited cigarettes in order to assist in any investigation regarding
18 such cigarettes.
19 (d) In the alternative, the commissioner of finance, on reasonable
20 notice by mail or otherwise, may permit the person from whom said ciga-
21 rettes were seized to redeem the said cigarettes, and any vending
22 machine or receptacle seized therewith, or may permit the owner of any
23 such cigarettes, vending machine or receptacle to redeem the same, by
24 the payment of the tax due, plus a penalty of fifty percent thereof,
25 plus interest on the amount of tax due for each month or fraction there-
26 of after such tax became due, determined without regard to any extension
27 of time for filing or paying, at the rate applicable under subdivision d
28 of section 11-1317 of this title and the costs incurred in such proceed-
29 ing, which total payment shall not be less than five dollars; provided,
30 however, that such seizure and sale or redemption shall not be deemed to
31 relieve any person from fine or imprisonment provided for in this chap-
32 ter for violation of any provisions of this chapter or chapter thirteen
33 of this title.
34 (e) In the alternative, the commissioner of finance may dispose of any
35 cigarettes seized pursuant to this section, except those that violate,
36 or are suspected of violating, federal trademark laws or import laws, by
37 transferring them to the department of correction for sale to or use by
38 incarcerated individuals in such institutions.
39 § 11-4022 Filing of documents. For purposes of the prosecution of
40 offenses under the provisions of this title, reports, returns, state-
41 ments, other documents or other information required to be filed with or
42 delivered to the commissioner of finance shall include such items which
43 under the provisions of this title are required to be recorded or filed
44 with, served upon or delivered to another person, including, but not
45 limited to, a recording officer of any county within the state, county
46 clerk, any other governmental agency or entity, or other entity in its
47 capacity as an agent of the commissioner of finance.
48 § 11-4023 Authority to seal premises. (a) If any person has been
49 finally determined to have engaged in the acts described in subdivision
50 (b) of this section, the commissioner of finance shall be authorized to
51 order:
52 (1) the sealing of any premises operated by such person where such
53 acts occurred; and
54 (2) the removal, sealing or making inoperable of any devices, items or
55 goods used in connection with any of such acts.
S. 8578 1227
1 (b) The following acts shall serve as the basis for a sealing order
2 pursuant to this section:
3 (1) the violation of subdivision a or b of section 11-1303 of this
4 title or section 17-703 or 20-202 of the code of the preceding munici-
5 pality on at least two occasions within a three-year period; or
6 (2) the violation of any provision of chapter thirteen of this title
7 or any of sections 17-703, 17-703.2, 17-704, 17-705, subdivision a or b
8 of section 17-706, 17-715 or 20-202 of the code of the preceding munici-
9 pality on at least three occasions within a three-year period; or
10 (3) the violation of any provision of section 10-203 of the code of
11 the preceding municipality on at least two occasions within a three-year
12 period.
13 (c) Orders of the commissioner to seal premises. (1) Orders of the
14 commissioner issued pursuant to this section shall be posted at the
15 premises at which the acts described in subdivision (b) of this section
16 have occurred.
17 (2) Ten days after the date of such posting, and upon the written
18 directive of the commissioner, police officers designated in section
19 1.20 of the criminal procedure law and peace officers employed by the
20 department of finance, including but not limited to the sheriff, under-
21 sheriff and deputy sheriffs of the city of New York designated as peace
22 officers in subdivision two of section 2.10 of the criminal procedure
23 law, are authorized to act upon and enforce such orders.
24 (3) Any devices, items or goods removed pursuant to this section,
25 shall be stored in a garage, pound or other place of safety and the
26 owner or other person lawfully entitled to the possession of such
27 devices, items or goods may be charged with reasonable costs for removal
28 and storage payable prior to the release of such devices, items or goods
29 to such owner or such other person.
30 (4) The owner or other person lawfully entitled to reclaim the
31 devices, items or goods described in paragraph three of this subdivision
32 shall reclaim such devices, items or goods. If such owner or such other
33 person does not reclaim such devices, items or goods within ninety days
34 of their removal, such devices, items or goods shall be subject to
35 forfeiture upon notice and judicial determination in accordance with
36 provisions of law. Upon forfeiture the department shall, upon a public
37 notice of at least five days, sell such forfeited devices, items or
38 goods at public sale. The net proceeds of such sale, after deduction of
39 the lawful expenses incurred, shall be paid into the general fund of the
40 city.
41 (d) Unsealing of premises. The commissioner shall order that any prem-
42 ises which are sealed pursuant to this section shall be unsealed and
43 that any devices, items or goods removed, sealed or otherwise made inop-
44 erable pursuant to this section shall be released, unsealed or made
45 operable upon:
46 (1) payment of all outstanding cigarette taxes and civil penalties and
47 all reasonable costs for removal and storage; and
48 (2) the expiration of a period of time from the date of enforcement of
49 the order to be determined by the commissioner not to exceed sixty days.
50 (e) Any person aggrieved by an order issued pursuant to this section
51 may seek judicial review of such order through a proceeding pursuant to
52 article seventy-eight of the civil practice law and rules.
53 (f) Removal of seal. Any person who removes the seal on any premises
54 or removes the seal on or makes operable any devices, items or goods
55 sealed or otherwise made inoperable in accordance with an order of the
56 commissioner shall be guilty of a misdemeanor.
S. 8578 1228
1 § 11-4024 Seizure and forfeiture of taxed and lawfully stamped ciga-
2 rettes sold or possessed by unlicensed retail or wholesale dealers,
3 flavored tobacco products, flavored electronic cigarettes and flavored
4 e-liquid. (a) Whenever a police officer designated in section 1.20 of
5 the criminal procedure law or a peace officer employed by the department
6 of finance, including but not limited to the sheriff, undersheriff or
7 deputy sheriffs of the city of New York designated as peace officers in
8 subdivision two of section 2.10 of the criminal procedure law, shall
9 discover (1) any cigarettes subject to any tax provided by chapter thir-
10 teen of this title, and upon which the tax has been paid and the stamps
11 affixed as required by such chapter, but such cigarettes are sold,
12 offered for sale or possessed by a person in violation of section
13 11-1303 of this code or section 17-703 or 20-202 of the code of the
14 preceding municipality, or (2) any flavored tobacco product that is
15 sold, offered for sale or possessed with intent to sell in violation of
16 section 17-715 of the code of the preceding municipality, he or she is
17 hereby authorized and empowered forthwith to seize and take possession
18 of such cigarettes or flavored tobacco product, together with any vend-
19 ing machine or receptacle in which such cigarettes or flavored tobacco
20 product are held for sale. Such cigarettes or flavored tobacco product,
21 vending machine or receptacle seized by such police officer or such
22 peace officer shall be turned over to the commissioner of finance.
23 (b) The seized cigarettes or flavored tobacco product and any vending
24 machine or receptacle seized therewith, but not the money contained in
25 such vending machine or receptacle, shall thereupon be forfeited to the
26 city, unless the person from whom the seizure is made, or the owner of
27 such seized cigarettes, flavored tobacco product, vending machine or
28 receptacle, or any other person having an interest in such property,
29 shall within ten days of such seizure, apply to the commissioner of
30 finance for a hearing to determine the propriety of the seizure, or
31 unless the commissioner of finance shall on his or her own motion
32 release the seized cigarettes, flavored tobacco product, vending machine
33 or receptacle. After such hearing the commissioner of finance shall give
34 notice of his or her decision to the petitioner. The decision of the
35 commissioner shall be reviewable for error, illegality, unconstitution-
36 ality or any other reason whatsoever by a proceeding under article
37 seventy-eight of the civil practice law and rules.
38 (c) The commissioner of finance may, within a reasonable time after
39 the forfeiture to the city of such vending machine or receptacle under
40 this section, upon publication of a notice to such effect for at least
41 five successive days, in a newspaper published or circulated in the
42 city, sell such forfeited vending machine or receptacle at public sale
43 and pay the proceeds into the general fund of the city. Such seized
44 vending machine or receptacle may be sold prior to forfeiture if the
45 owner of the seized property consents to the sale. Cigarettes or
46 flavored tobacco product forfeited to the city under this section shall
47 be destroyed or used for law enforcement purposes, except that ciga-
48 rettes that violate, or are suspected of violating, federal trademark
49 laws or import laws shall not be used for law enforcement purposes. If
50 the commissioner determines the cigarettes forfeited under this section
51 may not be used for law enforcement purposes, the commissioner of
52 finance must, within a reasonable time after the forfeiture to the city
53 of such cigarettes, upon publication of a notice to such effect for at
54 least five successive days, prior to destruction, in a newspaper
55 published or circulated in the city, destroy such forfeited cigarettes.
S. 8578 1229
1 (d) In the alternative, the commissioner of finance, on reasonable
2 notice by mail or otherwise, may permit the person from whom a seizure
3 of cigarettes or flavored tobacco product under this section was made,
4 to redeem any vending machine or receptacle seized with such cigarettes
5 or flavored tobacco product, or may permit the owner of any such vending
6 machine or receptacle to redeem the same, upon the payment of any civil
7 penalty imposed pursuant to chapter seven of title seventeen or subchap-
8 ter one of chapter two of title twenty of the code of the preceding
9 municipality and the costs incurred in such proceeding.
10 (e) For purposes of this section, a flavored tobacco product means a
11 flavored tobacco product, flavored electronic cigarette or flavored
12 e-liquid.
13 § 11-4025 Seizure and forfeiture of untaxed tobacco products. (a)
14 Whenever a police officer designated in section 1.20 of the criminal
15 procedure law or a peace officer employed by the department of finance,
16 including but not limited to the sheriff, undersheriff or deputy sher-
17 iffs of the city designated as peace officers in subdivision two of
18 section 2.10 of the criminal procedure law, discovers any tobacco
19 products subject to any tax provided by chapter thirteen of this title,
20 and upon which the tax has not been paid, he or she is hereby authorized
21 and empowered forthwith to seize and take possession of such tobacco
22 products, together with any vending machine or receptacle in which such
23 tobacco products are held for sale. Such tobacco products, vending
24 machine or receptacle seized by such police officer or such peace offi-
25 cer shall be turned over to the commissioner of finance.
26 (b) The seized tobacco products and any vending machine or receptacle
27 seized therewith, but not the money contained in such vending machine or
28 receptacle, shall thereupon be forfeited to the city, unless the person
29 from whom the seizure is made, or the owner of such seized tobacco
30 products, vending machine or receptacle, or any other person having an
31 interest in such property, shall within ten days of such seizure, apply
32 to the commissioner of finance for a hearing to determine the propriety
33 of the seizure, or unless the commissioner of finance shall on his or
34 her own motion release the seized tobacco products, vending machine or
35 receptacle. After such hearing the commissioner of finance shall give
36 notice of his or her decision to the petitioner. The decision of the
37 commissioner shall be reviewable for error, illegality, unconstitution-
38 ality or any other reason whatsoever by a proceeding under article
39 seventy-eight of the civil practice law and rules.
40 (c) The commissioner of finance may, within a reasonable time after
41 the forfeiture to the city of such vending machine or receptacle under
42 this section, upon publication of a notice to such effect for at least
43 five successive days, in a newspaper published or circulated in the
44 city, sell such forfeited vending machine or receptacle at public sale
45 and pay the proceeds into the general fund of the city. Such seized
46 vending machine or receptacle may be sold prior to forfeiture if the
47 owner of the seized property consents to the sale. Tobacco products
48 forfeited to the city under this section shall be destroyed or used for
49 law enforcement purposes, except that tobacco products that violate, or
50 are suspected of violating, federal trademark laws or import laws shall
51 not be used for law enforcement purposes. If the commissioner determines
52 the tobacco products forfeited under this section may not be used for
53 law enforcement purposes, the commissioner of finance must, within a
54 reasonable time after the forfeiture to the city of such cigarettes,
55 upon publication of a notice to such effect for at least five successive
S. 8578 1230
1 days, prior to destruction, in a newspaper published or circulated in
2 the city, destroy such forfeited tobacco products.
3 (d) In the alternative, the commissioner of finance, on reasonable
4 notice by mail or otherwise, may permit the person from whom a seizure
5 of tobacco products under this section was made, to redeem any vending
6 machine or receptacle seized with such tobacco products, or may permit
7 the owner of any such vending machine or receptacle to redeem the same,
8 upon the payment of any civil penalty imposed pursuant to chapter seven
9 of title seventeen or subchapter one of chapter two of title twenty of
10 the code of the preceding municipality and the costs incurred in such
11 proceeding.
12 § 11-4026 Seizure and forfeiture of taxed tobacco products sold or
13 possessed by unlicensed retail or wholesale dealers other than flavored
14 tobacco products subject to seizure under section 11-4024 of this chap-
15 ter.
16 (a) Whenever a police officer designated in section 1.20 of the crimi-
17 nal procedure law or a peace officer employed by the department of
18 finance, including but not limited to the sheriff, undersheriff or depu-
19 ty sheriffs of the city designated as peace officers in subdivision two
20 of section 2.10 of the criminal procedure law, discovers any tobacco
21 products, other than flavored tobacco products, subject to any tax
22 provided by chapter thirteen of this title, and upon which the tax has
23 been paid, but such tobacco products are sold, offered for sale or
24 possessed by a person in violation of section 11-1303 of this code or
25 section 17-703 or 20-202 of the code of the preceding municipality, he
26 or she is hereby authorized and empowered forthwith to seize and take
27 possession of such tobacco products, together with any vending machine
28 or receptacle in which such tobacco products are held for sale. Such
29 tobacco products, vending machine or receptacle seized by such police
30 officer or such peace officer shall be turned over to the commissioner
31 of finance.
32 (b) The seized tobacco products and any vending machine or receptacle
33 seized therewith, but not the money contained in such vending machine or
34 receptacle, shall thereupon be forfeited to the city, unless the person
35 from whom the seizure is made, or the owner of such seized tobacco
36 products, vending machine or receptacle, or any other person having an
37 interest in such property, shall within ten days of such seizure, apply
38 to the commissioner of finance for a hearing to determine the propriety
39 of the seizure, or unless the commissioner of finance shall on his or
40 her own motion release the seized tobacco products, vending machine or
41 receptacle. After such hearing the commissioner of finance shall give
42 notice of his or her decision to the petitioner. The decision of the
43 commissioner shall be reviewable for error, illegality, unconstitution-
44 ality or any other reason whatsoever by a proceeding under article
45 seventy-eight of the civil practice law and rules.
46 (c) The commissioner of finance may, within a reasonable time after
47 the forfeiture to the city of such vending machine or receptacle under
48 this section, upon publication of a notice to such effect for at least
49 five successive days, in a newspaper published or circulated in the
50 city, sell such forfeited vending machine or receptacle at public sale
51 and pay the proceeds into the general fund of the city. Such seized
52 vending machine or receptacle may be sold prior to forfeiture if the
53 owner of the seized property consents to the sale. Tobacco products
54 forfeited to the city under this section shall be destroyed or used for
55 law enforcement purposes, except that tobacco products that violate, or
56 are suspected of violating, federal trademark laws or import laws shall
S. 8578 1231
1 not be used for law enforcement purposes. If the commissioner determines
2 the tobacco products forfeited under this section may not be used for
3 law enforcement purposes, the commissioner of finance must, within a
4 reasonable time after the forfeiture to the city of such tobacco
5 products, upon publication of a notice to such effect for at least five
6 successive days, prior to destruction, in a newspaper published or
7 circulated in the city, destroy such forfeited tobacco products.
8 (d) In the alternative, the commissioner of finance, on reasonable
9 notice by mail or otherwise, may permit the person from whom a seizure
10 of tobacco products under this section was made, to redeem any vending
11 machine or receptacle seized with such tobacco products, or may permit
12 the owner of any such vending machine or receptacle to redeem the same,
13 upon the payment of any civil penalty imposed pursuant to chapter seven
14 of title seventeen or subchapter one of chapter two of title twenty of
15 the code of the preceding municipality and the costs incurred in such
16 proceeding.
17 Title 12 - Personnel and Labor
18 § 12-101 Office of payroll administration. There shall be within the
19 comptroller's office an office of payroll administration which shall:
20 1. Support the implementation of a computerized payroll management
21 system;
22 2. Maintain the integrity and accuracy of the payroll system;
23 3. Develop uniform procedures for payroll processing and development;
24 4. Distribute and account for payroll and administer payroll
25 deductions; and
26 5. Render services to, and receive information and assistance from,
27 public corporations upon such terms and conditions as may be agreed to
28 by the office and each such corporation.
29 All city agencies shall cooperate with the office as may be necessary
30 and proper to ensure efficient operation of the payroll management
31 system.
32 § 12-102 Executive director; staff. The comptroller shall appoint an
33 executive director of payroll administration. Within the appropriations
34 therefor, the office shall employ such other officers and employees as
35 may be required to perform its duties.
36 Title 13 - Reserved
37 Title 14 - Police
38 § 14-101 Definitions. As used in this title, the following terms have
39 the following meanings:
40 1. Civil enforcement. The term "civil enforcement" means the issuance
41 of a civil summons.
42 2. Civil summons. The term "civil summons" means a civil notice of
43 violation.
44 3. Commissioner. The term "commissioner" means the commissioner of the
45 department.
46 4. Criminal enforcement. The term "criminal enforcement" means the
47 charging of a misdemeanor or violation.
48 5. Criminal summons. The term "criminal summons" means an appearance
49 ticket issued by the department pursuant to article one hundred fifty of
50 the criminal procedure law that is an accusatory instrument pursuant to
51 article one hundred of the criminal procedural law, and returnable to
52 the criminal court.
S. 8578 1232
1 6. Department. The term "department" means the police department of
2 the city of New York.
3 7. Desk appearance ticket. The term "desk appearance ticket" means an
4 appearance ticket issued by the department pursuant to article one
5 hundred fifty of the criminal procedure law that is not an accusatory
6 instrument pursuant to article one hundred of the criminal procedure
7 law.
8 8. Specified unlawful act. The term "specified unlawful act" means an
9 act that violates any of the following provisions: subdivision b of
10 section 10-125 of the code of the preceding municipality, subdivision
11 one of section 16-118 of the code of the preceding municipality, subdi-
12 vision six of section 16-118 of the code of the preceding municipality
13 with respect to the act of public urination, subdivision a of section
14 24-218 of the code of the preceding municipality, section 18-146 of the
15 code of the preceding municipality, section 18-147 of the code of the
16 preceding municipality, and rules and regulations of the department of
17 parks and recreation described in paragraph nine of subdivision a of
18 section five hundred thirty-three of the charter of the preceding muni-
19 cipality.
20 § 14-102 Composition of force. Until otherwise provided by the mayor,
21 upon the recommendation of the commissioner, the police force in the
22 police department, shall consist of the following ranks of members, to
23 wit:
24 1. Captains of police, not exceeding in number one to each fifty of
25 the total number of police officers, in addition to the number detailed
26 to act as inspectors;
27 2. Lieutenants of police, not exceeding four in number to each fifty
28 of the total number of police officers;
29 3. Sergeants not exceeding six in number to each fifty police offi-
30 cers;
31 4. Surgeons of police, not exceeding forty in number, one of whom
32 shall be chief surgeon;
33 5. A veterinarian;
34 6. Police officers to the number of seven thousand eight hundred thir-
35 ty-nine.
36 § 14-103 Detective bureau. a. The commissioner shall organize and
37 maintain a bureau for detective purposes to be known as the detective
38 bureau and shall, from time to time, detail to service in said bureau as
39 many members of the force as the commissioner may deem necessary and may
40 at any time revoke any such detail.
41 b. Of the members of the force so detailed the commissioner may desig-
42 nate: (1) police officers not exceeding two hundred eighty in number,
43 as detectives of the first grade, who while performing duty in such
44 bureau and while so designated as detectives of the first grade, shall
45 be paid the same salary as lieutenants; and (2) a certain number of
46 police officers, as detectives of the second grade, who while performing
47 duty in such bureau and while so designated as detectives of the second
48 grade, shall be paid the same salary as sergeants; and a certain number
49 of police officers as detectives of the third grade, who while perform-
50 ing duty in such bureau and while so designated as detectives of the
51 third grade shall be paid such salary as may be determined by the mayor.
52 Any person who has received permanent appointment as a police officer
53 and is temporarily assigned to perform the duties of a detective shall,
54 whenever such assignment exceeds eighteen months in duration, be
55 appointed as a detective and receive the compensation ordinarily paid to
56 a detective performing such duties.
S. 8578 1233
1 c. The commissioner may designate lieutenants as commanders of detec-
2 tive squads, and sergeants as supervisors of detective squads, who while
3 performing duty in such bureau and while so designated as commanders of
4 detective squads or supervisors of detective squads shall be paid such
5 salary as may be determined by the mayor.
6 d. Any member of the force detailed to such bureau while so detailed
7 shall retain his or her rank in the force and shall be eligible for
8 promotion the same as if serving in the uniformed force, and the time
9 during which he or she serves in such bureau shall count for all
10 purposes as if served in his or her rank or grade in the uniformed
11 force.
12 e. The commissioner may at his or her pleasure revoke any designation
13 made pursuant to the provision of this section after complying with the
14 provisions of section seventy-five of the civil service law.
15 § 14-104 Juvenile bureau. a. There shall be a bureau in the department
16 organized and maintained for the prevention of crime and delinquency
17 among minors and for the performance of such other duties as the commis-
18 sioner may assign thereto.
19 b. Any member of the force assigned to such juvenile bureau shall
20 retain his or her rank and pay in the force and shall be eligible for
21 promotion as if serving in the uniformed force and the time served in
22 such bureau shall count for all purposes as if served in his or her rank
23 or grade in the uniformed force of the department.
24 § 14-105 Bureau of taxis, limousines and liveries. The purpose of the
25 bureau of taxis, limousines and liveries shall be the continuance,
26 further development and improvement of taxi, limousine and livery
27 service in the city of Staten Island.
28 It shall be the further purpose of the bureau, consonant with the
29 promotion and protection of the public comfort and convenience to adopt
30 and establish an overall public transportation policy governing taxi,
31 coach, limousine and wheelchair accessible van services as it relates to
32 the overall public transportation network of the city; to require the
33 filing of rates, standards of service, standards of insurance and mini-
34 mum coverage; standards for driver safety; standards for equipment safe-
35 ty and design; standards for noise and air pollution control; and to set
36 standards and criteria for the licensing of vehicles, drivers and chauf-
37 feurs, owners and operators engaged in such services.
38 § 14-106 Jurisdiction, powers and duties of the bureau. 1. The juris-
39 diction, powers and duties of the bureau shall include the regulation
40 and supervision of the business and industry of transportation of
41 persons by licensed vehicles for hire in the city.
42 2. Such regulations and supervision shall extend to:
43 (a) The supervision of rates to be charged and collected.
44 (b) The regulation and supervision of standards and conditions of
45 service.
46 (c) The revocation and suspension of licenses for vehicles, other than
47 licenses issued pursuant to state law, provided, however, that taxicab
48 licenses represented by medallions heretofore issued shall in all
49 respects remain valid in accordance with their terms and transferable
50 according to law.
51 3. The bureau or an administrative tribunal which may be established
52 by the police commissioner to adjudicate charges of violations of
53 provisions of the administrative code, rules and regulations promulgated
54 thereunder and public complaints of discrimination or overcharging,
55 shall have the power to enforce its decisions and orders imposing civil
56 penalties, not to exceed ten thousand dollars for each respondent, for
S. 8578 1234
1 violations relating to unlicensed vehicles for hire and unlicensed driv-
2 ers of vehicles for hire and for violations relating to the operation of
3 commuter van services without authorization and the operation of unli-
4 censed commuter vans and unlicensed drivers of commuter vans pursuant to
5 provisions of the administrative code.
6 Before a judgment based upon a default may be so entered the bureau or
7 administrative tribunal shall have first notified the respondent by
8 first class mail in such form as the bureau may direct (a) of the
9 default and order and the penalty imposed; (b) that a judgment will be
10 entered in the civil court of the city; and (c) that entry of such judg-
11 ment may be avoided by requesting a stay of default for good cause and
12 either requesting a hearing or entering a plea pursuant to the rules of
13 the bureau or administrative tribunal within thirty days of the mailing
14 of such notice.
15 Title 15 - Fire Prevention and Control
16 § 15-101 Definitions; bureaus, divisions and offices. 1. For the
17 purposes of this title the following terms shall have the following
18 meanings:
19 (a) "Commissioner" shall mean the fire commissioner.
20 (b) "Department" shall mean the fire department.
21 2. In addition to such other bureaus, divisions and offices as the
22 commissioner may organize pursuant to section eleven hundred two of the
23 charter of the preceding municipality, there shall be in the department:
24 (a) A fire bureau in the charge of the chief of the department which
25 shall have charge of the extinguishment of fires and the necessary and
26 incidental protection of life and property in connection therewith.
27 In such bureau there shall be a bureau of fire prevention and such
28 bureau shall be in the charge of a member of the uniformed force of the
29 department, of a rank above that of captain, to be designated by the
30 commissioner. Such bureau shall perform the duties and exercise the
31 powers of the commissioner in relation to (1) combustibles, chemicals,
32 explosives, flammables, or other dangerous substances, articles,
33 compounds or mixtures, (2) the prevention of fires or danger to life or
34 property therefrom, excluding provisions relating to structural condi-
35 tions and (3) protection against fire and panic, obstruction of aisles,
36 passageways and means of egress, standees, fire protection and fire
37 extinguishing appliances, and fire prevention in licensed places of
38 assembly. In the performance of their official duties, the uniformed and
39 civilian members of the bureau of fire prevention shall have the powers
40 and perform the duties of peace officers, but their power to make
41 arrests and serve process in criminal actions shall be restricted to
42 cases arising under laws relating to (1) the manufacture, storage, sale,
43 transportation or use of combustibles, chemicals, explosives, flammables
44 or other dangerous substances, articles, compounds or mixtures and the
45 control of fire hazards, (2) the prevention of fires or danger to life
46 or property therefrom, excluding provisions relating to structural
47 conditions and (3) fire perils.
48 (b) A chief and deputy chief fire marshal, appointed by the commis-
49 sioner, who shall be members of the department.
50 3. Notwithstanding any inconsistent provision of any general, special
51 or local law, or rule or regulation, a chief of the department shall not
52 serve in any other capacity to the department during his or her term of
53 office of chief. Any person violating the provisions of this section
54 shall be deemed to have vacated the office of chief so held.
S. 8578 1235
1 § 15-102 Commissioner. The head of the fire department shall be the
2 commissioner. The mayor may designate the chief of the fire department
3 to serve as commissioner, and shall exercise the powers and duties of
4 commissioner and shall receive the salary of the commissioner. While
5 serving as commissioner, the chief shall forfeit none of his or her
6 pension rights and privileges as chief or his or her civil service
7 status.
8 The commissioner may appoint deputies, one of whom may perform all the
9 duties and exercise all the powers of the commissioner except appoint-
10 ment or promotion, detail or dismissal of any member of the uniformed
11 force when authorized by instrument in writing to be filed in the
12 offices of the mayor and the comptroller.
13 The commissioner shall be the treasurer of the department and shall
14 file in the office of the comptroller a bond for the faithful perform-
15 ance of his or her duties as treasurer.
16 § 15-103 Powers. The commissioner shall have sole and exclusive power
17 and perform all duties for the government, discipline, management, main-
18 tenance and direction of the fire department and the premises and prop-
19 erty, however the commissioner shall provide written notice with
20 supporting documentation at least forty-five days prior to the permanent
21 closing of any firehouse or permanent removal or relocation of any fire
22 fighting unit to the council members whose districts are served by such
23 facility and to the clerk of the council. The term "permanent" shall
24 mean a time period in excess of six months.
25 The department shall have the sole and exclusive power and authority
26 to extinguish fires at any place within the jurisdiction of the city and
27 still have power and authority to extinguish fires upon any vessel in
28 the port of New York or upon any dock, wharf, pier, warehouse or other
29 structure bordering or adjacent to such port.
30 The commissioner shall have sole and exclusive jurisdiction over the
31 approval of the installation of all containers for combustibles, chemi-
32 cals, explosives, inflammable or other dangerous substances, except
33 storage tanks for oilburning equipment.
34 The commissioner shall have the sole and exclusive power to designate
35 and fix the location of all fire alarm telegraph, signal and alarm
36 stations in the city and to control the same for the purpose of the
37 department; except the commissioner shall give forty-five days notice to
38 council members whose districts are served by such equipment and to the
39 city clerk in the case of removal.
40 § 15-104 Enforcement of fire laws. 1. The commissioner shall have the
41 power and it shall be his or her duty to enforce all laws and the rules
42 and regulations with respect to:
43 (a) the manufacture, storage, sale, transportation or use of combusti-
44 bles, chemicals or dangerous substances;
45 (b) investigation of the cause and origin of fires and suppression of
46 arson; and
47 (c) the prevention of fires or danger to life or property.
48 2. The commissioner shall have the power to cause any building, struc-
49 ture, tunnel, vessel or premises to be inspected for fire hazards by an
50 officer or employee of the department; and to inspect and test any auto-
51 matic or other fire alarm system or fire extinguishing equipment.
52 3. The commissioner shall have the power and it shall be his or her
53 duty to order in writing the remedying of any condition in violation of
54 any regulation which he or she is empowered to enforce. The commissioner
55 may take proceedings for the enforcement of any order of the commission-
56 er which is not complied with within the time fixed in the order for
S. 8578 1236
1 such compliance to be enforced. Every order, requirement, decision or
2 determination of the commissioner shall be in writing.
3 4. The commissioner and his or her deputies and such other officers or
4 employees of the department as are authorized by the commissioner may
5 without fee or hindrance enter and inspect all buildings, premises,
6 vessels, structures and all underground passages of every sort in the
7 city or in the port of New York for compliance with provisions of law or
8 rules and regulations enforced by the department. Any refusal to permit
9 such entry or inspection shall be triable by a judge and punishable by
10 not more than thirty days imprisonment or by a fine of not more than
11 fifty dollars, or both.
12 § 15-105 Other officer. No member of the uniformed force of the fire
13 department shall accept any additional place of public trust or civil
14 emolument.
15 The chief of the fire department shall not serve in any other capacity
16 to the department during his or her term of office or shall be deemed to
17 have vacated the office of chief.
18 Title 16 - Sanitation
19 Chapter 1
20 GENERAL
21 § 16-101 Definitions. When used in this title the following terms
22 shall have the following meanings:
23 1. "Department" shall mean the department of sanitation.
24 2. "Commissioner" shall mean the commissioner of sanitation.
25 3. "Street" includes street, avenue, road, alley, lane, highway,
26 boulevard, concourse, driveway, culvert and crosswalk, and every class
27 of road, square and place, and all parkways and through vehicular park
28 drives except a road within any park or a wharf, pier, bulkhead, or slip
29 by law committed to the custody, and control of the department of ports
30 and terminals.
31 § 16-102 Commissioner. The head of the sanitation department shall be
32 the commissioner.
33 § 16-103 Powers and duties of the commissioner. 1. The commissioner
34 shall have charge and control of and be responsible for all those func-
35 tions and operations of the city relating to the cleanliness of the
36 streets and the disposal of waste, including, without limitation, the
37 following:
38 (a) the sweeping, cleaning, sprinkling, flushing, washing and sanding
39 of the streets;
40 (b) the removal and disposition of ashes, street sweepings, garbage,
41 refuse, rubbish and waste;
42 (c) the removal of ice and snow from the streets;
43 (d) the removal of encumbrances from the streets and the storage or
44 disposal of such encumbrances, except that the mayor may provide by
45 regulation that the removal and storage of household effects or other
46 chattels shall be a responsibility of the department of general services
47 and contracting;
48 (e) plans, design, construction, operation, repair, maintenance,
49 enlargement and regulation of the use of incinerators, landfills and
50 other plants, facilities and equipment; and
51 (f) recovery and reuse of recyclable material.
52 2. The commissioner may adopt regulations specifying the kind of
53 ashes, garbage, refuse, rubbish or other material or substance that will
S. 8578 1237
1 be collected by the city, the time when it will be collected and the
2 place at which it shall be deposited for collection.
3 3. The regulations shall be enforced by order of the commissioner.
4 Such order shall be addressed to the owner or owners, lessees or occu-
5 pants of the building, structure, enclosure, vessel, place or premises
6 affected thereby. It shall not be necessary to designate such owner or
7 owners, lessees or occupants by name, however the premises shall be
8 designated in the address so that it may be readily identified.
9 § 16-104 Duties and obligations of property owner. The owner of any
10 property shall keep any vacant lot or lots in a clean and sanitary
11 manner and free of debris and other litter at the owner's expense. In
12 the event that an owner of property fails to comply with these
13 provisions, or rules and regulations, the department may provide for
14 cleaning of a vacant lot at the expense of the property owner.
15 Chapter 2
16 SOLID WASTE RECYCLING
17 § 16-301 Short title. Sections 16-301 through 16-324 of this title
18 shall be known and may be cited as the "City of Staten Island Recycling
19 Law".
20 § 16-302 Declaration of policy. It is hereby declared to be the public
21 policy of the city to reduce environmental pollution and dangers to
22 health, to decrease the demand for scarce landfill space, to minimize
23 the size and cost of the proposed resource recovery program, and to
24 encourage the conservation of valuable natural resources and energy. It
25 is the policy of the city to promote the recovery of materials from the
26 city of Staten Island solid waste stream for the purpose of recycling
27 such materials and returning them to the economy. This title shall be
28 liberally construed in order to effectuate the purposes set forth in
29 this section.
30 § 16-303 Definitions. When used in this title:
31 1. "Architectural paint" means interior and exterior architectural
32 coatings, including paints and stains purchased for commercial or resi-
33 dential use, but does not include architectural coatings purchased for
34 industrial use or for use in the manufacture of products.
35 2. "Organic waste" means any material found in the waste stream that
36 can be broken down into, or otherwise become part of, usable compost,
37 such as food scraps, soiled paper, and plant trimmings. As determined by
38 the commissioner, such term may also include disposable plastic food
39 service ware and bags that meet the ASTM International standard specifi-
40 cations for compostable plastics, but shall not include liquids and
41 textiles.
42 3. "Department-managed solid waste" means all solid waste that the
43 department and its contractors collect, all solid waste that the depart-
44 ment receives for free disposal, all solid waste collected for recycling
45 or reuse through special events or programs promoted, operated or funded
46 by the department, and all solid waste diverted from collection by the
47 department that is accepted through non-department infrastructure for
48 recycling or reuse and counted towards the department's recycling goals
49 as set forth in subdivision a of section 16-305 of this chapter.
50 4. "Household" means a single dwelling or a residential unit within a
51 multiple dwelling, hotel, motel, campsite, ranger station, public or
52 private recreation area, or other residence.
S. 8578 1238
1 5. "Household and institutional compostable waste" means any composta-
2 ble waste, excluding yard waste, in or otherwise destined for any waste
3 stream collected by the department.
4 6. "Household hazardous waste" means:
5 a. any household waste that is ignitable, corrosive, reactive or toxic
6 and that, but for its point of generation, would be a hazardous waste
7 under part three hundred seventy-one of title six of the New York code,
8 rules and regulations, as may be amended from time to time, and includes
9 all pesticides, as defined in article thirty-three of the environmental
10 conservation law, and hazardous waste, as defined in section 27-0901 of
11 the environmental conservation law, as such laws may be amended from
12 time to time; and
13 b. any other household waste that the commissioner determines, by
14 rule, to be hazardous and require special handling.
15 7. "Post-collection separation" means the dividing of solid waste into
16 some or all of its component parts after the point of collection.
17 8. "Post-consumer material" means those products generated by a busi-
18 ness or a consumer which have served their intended end uses, and which
19 have been separated or diverted from solid waste for the purposes of
20 collection, recycling and disposition.
21 9. "Private carter" means any person required to be licensed or
22 permitted pursuant to chapter one of title sixteen-A of the code of the
23 preceding municipality.
24 10. "Publicly accessible textile drop-off bin" means any enclosed
25 container that allows for members of the public to deposit textiles into
26 such container for reuse or recycling in accordance with the textile
27 reuse and recycling program established by section 16-310.1 of this
28 chapter.
29 11. "Recyclable materials" means solid waste that may be separated,
30 collected, processed, marketed and returned to the economy in the form
31 of raw paper, plastic, yard waste and any other solid waste required to
32 be recycled or composted pursuant to this chapter, solid waste collected
33 for recycling or reuse through special events or programs promoted,
34 operated or funded by the department, and solid waste accepted through
35 non-department infrastructure for recycling or reuse.
36 12. "Recycled" or "recycling" means any process by which recyclable
37 materials are separated, collected, processed, marketed and returned to
38 the economy in the form of raw materials or products.
39 13. "Recycling center" means any facility operated to facilitate the
40 separation, collection, processing or marketing of recyclable materials
41 for reuse or sale.
42 14. "Recycling district" means any borough or smaller geographic area
43 the commissioner deems appropriate for the purpose of implementing this
44 chapter.
45 15. "Rigid plastic container" means any plastic container having a
46 semi-flexible or inflexible finite shape or form that is capable of
47 maintaining its shape while holding other products and is designed to
48 hold food, beverages, and consumer household products, including, but
49 not limited to, the following types of containers: plastic bottles,
50 plastic jugs, plastic tubs, plastic trays, plastic cups, plastic buck-
51 ets, plastic crates and plastic flower pots, and any other rigid plastic
52 material that the commissioner may designate by rule, but not including
53 containers made of polystyrene foam.
54 16. "Solid waste" means all putrescible and non-putrescible materials
55 or substances, except as described in paragraph c of this subdivision,
56 that are discarded or rejected as being spent, useless, worthless or in
S. 8578 1239
1 excess to the owners at the time of such discard or rejection, including
2 but not limited to, garbage, refuse, industrial and commercial waste,
3 rubbish, tires, ashes, contained gaseous material, incinerator residue,
4 construction and demolition debris, discarded automobiles and offal.
5 a. A material is discarded if it is abandoned by being:
6 i. disposed of;
7 ii. burned or incinerated, including being burned as a fuel for the
8 purpose of recovering useable energy; or
9 iii. accumulated, stored, or physically, chemically or biologically
10 treated, other than burned or incinerated, instead of or before being
11 disposed of.
12 b. A material is disposed of if it is discharged, deposited, injected,
13 dumped, spilled, leaked, or placed into or on any land or water so that
14 such material or any constituent thereof may enter the environment or be
15 emitted into the air or discharged into groundwater or surface water.
16 c. The following are not solid waste for the purpose of this chapter:
17 i. domestic sewage;
18 ii. any mixture of domestic sewage and other wastes that passes
19 through a sewer system to a publicly owned treatment works for treat-
20 ment, except (A) any material that is introduced into such system in
21 order to avoid the provisions of this chapter or the state regulations
22 promulgated to regulate solid waste management facilities pursuant to 6
23 NYCRR part 360 or (B) food waste;
24 iii. industrial wastewater discharges that are actual point source
25 discharges subject to permits under article seventeen of the environ-
26 mental conservation law; industrial wastewaters while they are being
27 collected, stored, or treated before discharge and sludges that are
28 generated by industrial wastewater treatment are solid wastes;
29 iv. irrigation return flows;
30 v. radioactive materials that are source, special nuclear, or by-pro-
31 duct material as defined by the Atomic Energy Act of 1954, as amended,
32 42 U.S.C. § 2011 et seq.;
33 vi. materials subject to in-situ mining techniques which are not
34 removed from the ground as part of the extraction process;
35 vii. hazardous waste as defined in section 27-0901 of the environ-
36 mental conservation law; and
37 viii. regulated medical waste or other medical waste as described in
38 section 16-120.1 of this title.
39 17. "Source separation" means the dividing of solid waste into some or
40 all of its component parts at the point of generation.
41 18. "Yard waste" means leaves, grass clippings, garden debris, and
42 vegetative residue that is recognizable as part of a plant or vegetable,
43 small or chipped branches, and similar material.
44 Chapter 3
45 CITYWIDE RECYCLING PROGRAM
46 § 16-305 Recycling of department-managed solid waste. 1. a. The
47 following recycling percentage goals are established for the recycling
48 of department-managed solid waste:
49 i. by July first, two thousand eleven, sixteen percent of department-
50 managed solid waste;
51 ii. by July first, two thousand thirteen, nineteen percent of depart-
52 ment-managed solid waste;
53 iii. by July first, two thousand fourteen, twenty-one percent of
54 department-managed solid waste;
S. 8578 1240
1 iv. by July first, two thousand sixteen, twenty-four percent of
2 department-managed solid waste;
3 v. by July first, two thousand eighteen, twenty-seven percent of
4 department-managed solid waste;
5 vi. by July first, two thousand nineteen, thirty percent of depart-
6 ment-managed solid waste; and
7 vii. by July first, two thousand twenty, thirty-three percent of
8 department-managed solid waste.
9 b. In addition, the following recycling goals are established for
10 curbside and containerized waste collected by the department:
11 i. By July first, two thousand eleven, sixteen percent of curbside and
12 containerized waste collected by the department;
13 ii. By July first, two thousand thirteen, eighteen percent of curbside
14 and containerized waste collected by the department;
15 iii. By July first, two thousand fourteen, nineteen percent of curb-
16 side and containerized waste collected by the department;
17 iv. By July first, two thousand sixteen, twenty-one percent of curb-
18 side and containerized waste collected by the department;
19 v. By July first, two thousand eighteen, twenty-three percent of curb-
20 side and containerized waste collected by the department;
21 vi. By July first, two thousand nineteen, twenty-four percent of curb-
22 side and containerized waste collected by the department; and
23 vii. By July first, two thousand twenty, twenty-five percent of curb-
24 side and containerized waste collected by the department.
25 2. The commissioner shall adopt and implement rules designating at
26 least six recyclable materials, including plastics to the extent
27 required in subdivision three of this section and yard waste to the
28 extent required in section 16-308 of this chapter and organic waste to
29 the extent required in section 16-308.1 of this chapter, contained in
30 department-managed solid waste and requiring households to source sepa-
31 rate such designated materials.
32 3. a. Prior to commencing delivery of department-managed recyclable
33 materials to the designated recycling processing facility at the South
34 Brooklyn Marine Terminal, the commissioner shall designate as recyclable
35 materials, and require the source separation of, rigid plastic contain-
36 ers.
37 b. If the commissioner, in his or her discretion, determines that the
38 cost to the city of recycling rigid plastic containers required to be
39 designated as recyclable materials pursuant to paragraph a of this
40 subdivision is not reasonable in comparison with the cost of recycling
41 only metal, glass and plastic and have been designated as recyclable
42 materials, the commissioner shall within ten business days notify and
43 provide documentation to the council of the factors relied upon to make
44 such determination and shall not be required to designate any such rigid
45 plastic containers as recyclable materials.
46 c. If the commissioner determines that the cost to the city of recycl-
47 ing rigid plastic containers is not reasonable in comparison with the
48 cost of recycling only metal, glass and plastic that have been desig-
49 nated as recyclable materials, the commissioner shall annually reevalu-
50 ate the cost to the city of designating such rigid plastic containers as
51 recyclable materials, and shall annually make a new determination as to
52 whether the cost of designating such containers as recyclable materials
53 is reasonable in comparison with the cost of recycling only metal, glass
54 and plastic that have been designated as recyclable materials and shall
55 report such evaluations to the council. The department shall not
56 promulgate rules designating rigid plastic containers as recyclable
S. 8578 1241
1 materials, and need not conduct outreach or education relating thereto
2 if, pursuant to paragraph b of this subdivision, the commissioner deter-
3 mines that the cost to the city of recycling rigid plastic containers is
4 not reasonable in comparison with the cost of recycling only metal,
5 glass and plastic that have been designated as recyclable materials.
6 d. Immediately following the promulgation of rules designating rigid
7 plastic containers as recyclable materials, the department shall under-
8 take outreach and education, in cooperation with any other agency or
9 entity designated for that purpose by the commissioner, to inform resi-
10 dents of such new designation and to provide instruction on compliance
11 with the requirements of this subdivision and the rules promulgated
12 pursuant thereto.
13 4. The commissioner shall adopt and implement rules establishing
14 procedures requiring the placement of the designated materials at the
15 curbside, in specialized containers, or in any other manner the commis-
16 sioner determines, to facilitate the collection of such materials in a
17 manner that enables them to be recycled. Under such rules, no person
18 shall be liable for incorrectly placing a non-designated rigid plastic
19 container in the recycling stream.
20 5. Where the department provides solid waste collection services to a
21 building containing at least four and no more than eight dwelling units,
22 the commissioner shall adopt and implement rules requiring the owner,
23 net lessee or person in charge of such building to:
24 a. provide for the residents, where practicable, a designated area
25 and, where appropriate, containers in which to store the source sepa-
26 rated or other designated recyclable materials to be collected by the
27 department; and
28 b. inform all residents of the requirements of this chapter and the
29 rules promulgated pursuant thereto by, at a minimum, posting
30 instructions on source separation in or near the designated recycling
31 area and making available to each resident at the inception of a lease,
32 where applicable, a department-issued guide to recycling, which shall be
33 made available to the owner, net lessee or person in charge of such
34 building by the department pursuant to section 16-315 of this chapter in
35 print form or on the department's website, or in an alternative guide
36 containing similar information to the guide required by section 16-315
37 of this chapter.
38 If reasonably accessible space for the storage of source separated or
39 other designated recyclable materials is not available in such building,
40 and such space is available behind the building's property line, such
41 space behind the property line may be designated as the area for the
42 storage of source separated or other designated recyclable materials. If
43 no such space is available, the owner, net lessee or person in charge of
44 such building shall post instructions on recycling and source separation
45 in or near a designated area that is visible to all residents in the
46 building.
47 With respect to solid waste generated by households in the aforesaid
48 buildings, the obligations of an owner, net lessee or person in charge
49 of such building under this chapter shall be limited to those set forth
50 in this subdivision and subdivisions four and seven of this section or
51 rules promulgated pursuant to such subdivisions.
52 6. Where the department provides solid waste collection services to a
53 building containing nine or more dwelling units, the commissioner shall
54 adopt and implement rules requiring the owner, net lessee or person in
55 charge of such building to:
S. 8578 1242
1 a. provide for the residents a designated area and, where appropriate,
2 containers in which to store the source separated or other designated
3 recyclable materials to be collected by the department;
4 b. inform all residents of the requirements of this chapter and the
5 rules promulgated pursuant thereto by, at a minimum, posting
6 instructions on source separation in or near the designated recycling
7 area, and making available to each resident at the inception of a lease,
8 a department-issued guide to recycling, which shall be made available to
9 the owner, net lessee or person in charge of such building by the
10 department pursuant to section 16-315 of this chapter in print form or
11 on the department's website, or in an alternative guide containing simi-
12 lar information to the guide required by section 16-315 of this chapter;
13 and
14 c. remove non-designated materials from the containers of designated
15 source separated recyclable materials before such containers are placed
16 at the curbside for collection and ensure that the designated materials
17 are placed at the curbside in the manner prescribed by the department.
18 With respect to solid waste generated by households in the aforesaid
19 buildings, the obligations of an owner, net lessee or person in charge
20 of such building under this chapter shall be limited to those set forth
21 in this subdivision and subdivisions four and seven of this section or
22 rules promulgated pursuant to such subdivisions.
23 7. The commissioner shall adopt and implement rules for any building
24 containing four or more dwelling units in which the amount of designated
25 materials placed out for collection is significantly less than what can
26 reasonably be expected from such building. These rules shall require
27 residential generators, including tenants, owners, net lessees or
28 persons in charge of such building to use transparent bags or such other
29 means of disposal the commissioner deems appropriate to dispose of solid
30 waste other than the designated recyclable materials. Upon request of
31 the owner, net lessee or person in charge of such building, and if the
32 commissioner determines that such owner, net lessee or person in charge
33 of such building has complied with this subdivision, subdivision four of
34 this section and, as applicable, subdivision five or subdivision six of
35 this section or rules promulgated pursuant to such subdivisions and that
36 the amount of designated materials placed out for collection remains
37 significantly less than what can reasonably be expected from such build-
38 ing, the department may develop a schedule to conduct random inspections
39 to facilitate compliance with the provisions of this chapter by tenants
40 of such building, provided that lawful inspections may occur at reason-
41 able times without notice to ensure compliance by the tenants, owner,
42 net lessee or person in charge of such building.
43 8. a. In calculating the extent to which the department has met the
44 recycling percentage goals set forth in paragraph a of subdivision one
45 of this section, the department shall include in its calculations all
46 curbside and institutional recycling it collects, including materials
47 collected from households, schools, not-for-profit institutions and city
48 agencies, and all recyclable materials collected as part of the public
49 space recycling program pursuant to section 16-310 of this chapter, and
50 may include yard waste collected pursuant to section 16-308 of this
51 chapter and any other material collected for composting pursuant to this
52 chapter, Christmas trees collected pursuant to section 16-309 of this
53 chapter, clothing and textiles donated or collected pursuant to section
54 16-310.1 of this chapter, household hazardous waste diverted pursuant to
55 section 16-310.3 of this chapter, rechargeable batteries collected
56 pursuant to chapter four of title eleven of the code of the preceding
S. 8578 1243
1 municipality, beverage containers returned within the city pursuant to
2 title ten of article twenty-seven of the environmental conservation law,
3 electronic waste collected within the city or otherwise diverted from
4 the city's waste stream, including such waste collected or diverted
5 pursuant to title twenty-six of article twenty-seven of the environ-
6 mental conservation law, and plastic bags collected within the city or
7 otherwise diverted from the city's waste stream, including such plastic
8 bags collected or diverted pursuant to title twenty-seven of article
9 twenty-seven of the environmental conservation law. Only recyclable
10 materials specifically enumerated in this paragraph shall be counted for
11 purposes of calculating the extent to which the department has met the
12 recycling percentage goals set forth in paragraph a of subdivision one
13 of this section.
14 b. In calculating the extent to which the department has met the recy-
15 cling percentage goals set forth in paragraph b of subdivision one of
16 this section, the department shall include in its calculations all curb-
17 side and institutional recycling it collects, including materials
18 collected from households, schools, not-for-profit institutions and city
19 agencies, and all recyclable materials collected as part of the public
20 space recycling program pursuant to section 16-310 of this chapter.
21 c. In calculating the extent to which the department has met the recy-
22 cling percentage goals set forth in paragraphs a and b of subdivision
23 one of this section, the department shall not include recycling of aban-
24 doned vehicles or recycling from lot cleaning operations, asphalt and
25 mill tailings, construction and demolition debris or other commercial
26 recycling programs. The commissioner shall not designate any such mate-
27 rials as recyclable materials under this section for purposes of calcu-
28 lating the extent to which the department has met such recycling
29 percentage goals.
30 d. In calculating the percent of the department-managed solid waste
31 stream recycled in connection with the percentage goals set forth in
32 paragraph a of subdivision one of this section, the department shall
33 ensure that any quantity of material counted as recycled must be fully
34 included in the calculation of the city's total department-managed solid
35 waste stream.
36 e. All data used to make calculations pursuant to paragraphs a and b
37 of this subdivision shall be made available on the department's website
38 in raw form disaggregated by material type and using a non-proprietary
39 format on a monthly basis, or, if such data is not generated by the
40 department, within one month from the date that the department receives
41 reports of such information.
42 9. In the event that the department does not meet any recycling
43 percentage goal set forth in paragraphs a or b of subdivision one of
44 this section by the dates specified therein, the department shall, with-
45 in sixty days of the date for meeting such goal, expand recycling
46 outreach and education and shall take such other appropriate measures
47 including, but not limited to, directing such outreach and education to
48 the neighborhoods and community districts in which recycling diversion
49 rates fall below the median city recycling diversion rate and consulting
50 with the council to explore additional measures to meet the recycling
51 percentage goals set forth in such subdivision. In expanding recycling
52 outreach and education, the department may work with other agencies or
53 entities designated for that purpose by the commissioner.
54 10. In the event that the department is unable to achieve two consec-
55 utive recycling percentage goals set forth in paragraphs a and b of
56 subdivision one of this section by the dates specified therein, in addi-
S. 8578 1244
1 tion to the requirements of subdivision nine of this section, the
2 commissioner shall retain a special advisor, who shall be selected by
3 the mayor and the speaker, provided that the commissioner need not
4 retain such special advisor more than once every three years. Within one
5 hundred twenty days of such retention, such adviser shall submit a
6 report to the mayor and council recommending additional measures that
7 may be taken by the city following such report in order to meet such
8 recycling percentage goals.
9 § 16-305.1 Weekly collection of designated recyclable materials. 1.
10 Weekly collection of designated recyclable materials shall be maintained
11 in all local service delivery districts.
12 2. Effective July first, two thousand nine, and notwithstanding any
13 inconsistent provision of this chapter, the department shall be author-
14 ized, by written order of the commissioner, to implement and maintain
15 alternate week collection of designated recyclable materials in all
16 local service delivery districts, provided that the department may, by
17 written order of the commissioner, provide for more frequent collection
18 of designated recyclable materials in designated local service delivery
19 districts. Any such written order of the commissioner implementing
20 alternate week collection shall expire no later than March thirty-first,
21 two thousand ten.
22 3. For purposes of this section "designated recyclable materials"
23 shall mean solid waste that has been designated by the commissioner as
24 recyclable pursuant to section 16-305, section 16-307, or section
25 16-308.1 of this chapter.
26 4. Nothing in this section shall be construed to require collection of
27 designated recyclable materials in such parts of the city or during such
28 times of the year that such materials are not otherwise collected.
29 § 16-306 Private carter-collected waste. 1. The commissioner shall
30 adopt and implement rules designating recyclable materials that consti-
31 tute in the aggregate at least one-half of all solid waste collected by
32 private carters, and additional materials if the commissioner determines
33 that economic markets exist for them. Pursuant to subdivision two of
34 this section, such rules shall require generators of private carter-col-
35 lected waste to source separate some or all of the designated materials
36 and to arrange for lawful collection for recycling, reuse or sale for
37 reuse by private carters or persons other than private carters of such
38 source separated materials. With regard to designated materials that are
39 not required by such rules to be source separated, generators of private
40 carter-collected waste may source separate these designated materials
41 and, in any event, shall arrange for their lawful collection for recycl-
42 ing, reuse or sale for reuse by private carters or persons other than
43 private carters. If a generator of private carter-collected waste has
44 source separated the designated materials in accordance with the rules
45 and arranged for the lawful collection for recycling, reuse or sale for
46 reuse by private carters or persons other than private carters of such
47 source separated materials and, with regard to designated materials that
48 are not required by such rules to be source separated, arranged for
49 lawful collection for recycling, reuse or sale for reuse by private
50 carters or persons other than private carters, such arrangement shall
51 constitute an affirmative defense to any proceeding brought against the
52 generator pursuant to section 16-324 of this title.
53 2. (a) The rules promulgated pursuant to subdivision one of this
54 section shall require that generators of waste collected by businesses
55 required to be licensed pursuant to section 16-505 of the code of the
56 preceding municipality source separate the designated materials in such
S. 8578 1245
1 manner and to such extent as the commissioner determines to be necessary
2 to minimize contamination and maximize the marketability of such materi-
3 als. However, in promulgating such rules the commissioner shall not
4 require source separation of a material unless the commissioner has
5 determined that an economic market exists for such material. For the
6 purpose of this section, the term "economic market" refers to instances
7 in which the full avoided costs of proper collection, transportation and
8 disposal of source separated materials are equal to or greater than the
9 cost of collection, transportation and sale of said materials less the
10 amount received from the sale of said materials.
11 (b) (i) Any designated carter that collects source separated desig-
12 nated materials in a commercial waste zone pursuant to section 16-1002
13 of the code of the preceding municipality shall provide for the
14 collection of, and ensure the continued separation of, designated mate-
15 rials that have been source separated, provide for the separation of all
16 other designated materials, and provide for recycling of all the desig-
17 nated materials in accordance with the rules of the department and the
18 terms of any agreement entered into pursuant to section 16-1002 of the
19 code of the preceding municipality under which such designated carter is
20 providing such service.
21 (ii) Any person registered by the business integrity commission to
22 remove, collect, or dispose of trade waste generated in the course of
23 operation of such person's business pursuant to subdivision b of section
24 16-505 of the code of the preceding municipality shall provide for the
25 collection of, and ensure the continued separation of, designated mate-
26 rials that have been source separated, provide for the separation of all
27 other designated materials, and provide for recycling of all the desig-
28 nated materials in accordance with the rules promulgated by the business
29 integrity commission pursuant to this section and subject to the penal-
30 ties provided in subdivision a of section 16-515 of the code of the
31 preceding municipality.
32 (c) The commissioner and the chair of the business integrity commis-
33 sion shall have the authority to issue notices of violation for any
34 violation of any rules promulgated pursuant to this section and such
35 notices of violation shall be returnable in a civil action brought in
36 the name of the commissioner or the chair of the business integrity
37 commission before the environmental control board which shall impose a
38 penalty not to exceed ten thousand dollars for each such violation.
39 3. The department shall complete a study of commercial recycling in
40 the city no later than January first, two thousand twelve. Such commer-
41 cial recycling study shall focus on the putrescible portion of the
42 commercial waste stream, and shall include, but need not be limited to,
43 the following: (a) an integration of all data on commercial waste in the
44 city collected and transported through transfer stations and recycling
45 processors; (b) an assessment of current practices, operations and
46 compliance with applicable local laws and rules, consistent with the
47 scope of study set forth in the two thousand six Solid Waste Management
48 Plan; (c) estimates of waste composition and recycling diversion rates
49 from research conducted with respect to other jurisdictions; (d) a
50 computer-based model to measure the amount and composition of waste
51 generated by different commercial sectors; (e) recommendations of meth-
52 ods to encourage waste prevention, reuse, recycling and composting for
53 each of the commercial sectors studied, including any recommended chang-
54 es to applicable law; and (f) an assessment of the efficiency of the
55 transportation of commercial waste within the commercial system by,
56 among other things, mapping and monitoring routes along which commercial
S. 8578 1246
1 waste and recycling trucks travel, including long-haul carriers within
2 and outside the city. Following completion of the commercial recycling
3 study, the commissioner shall determine whether any additional studies
4 are necessary in order to improve commercial recycling practices in the
5 city and shall promptly report such determination to the mayor and the
6 council.
7 4. Notwithstanding any other provision of law, nothing in this section
8 shall be construed to (a) supersede, amend or eliminate any obligation
9 of an awardee or designated carter, as such terms are defined in section
10 16-1000 of the code of the preceding municipality, to meet the require-
11 ments set forth in any applicable agreement entered into pursuant to
12 section 16-1002 of the code of the preceding municipality, or (b) other-
13 wise amend or supersede any term of such agreement.
14 § 16-306.1 Organic waste. 1. When used in this section or section
15 16-324 of this chapter:
16 a. "Arena" means an establishment or facility that hosts live sporting
17 or entertainment events.
18 b. "Capacity" means the combined capacity of facilities that are capa-
19 ble of accepting and processing, consistent with the terms of this
20 section and exceeding a nominal amount, organic waste expected to be
21 generated by and collected from designated covered establishments.
22 c. "Catering establishment" means any room, place or space in the
23 city, which is used, leased or hired out for the business of serving
24 food or beverages for a particular function, occasion or event, to which
25 the public is not invited or admitted and wherein music or entertainment
26 is permitted.
27 d. "Covered establishment" means:
28 (i) any location at which a food manufacturer has a floor area of at
29 least twenty-five thousand square feet;
30 (ii) any location at which a food wholesaler has a floor area of at
31 least twenty thousand square feet;
32 (iii) any location at which a retail food store has a floor area of at
33 least ten thousand square feet, or any retail food store that is part of
34 a chain of three or more retail food stores that have a combined floor
35 area space of at least ten thousand square feet and that operate under
36 common ownership or control and receive waste collection from the same
37 private carter;
38 (iv) arenas or stadiums having a seating capacity of at least fifteen
39 thousand persons;
40 (v) any food service establishment that is part of a chain of two or
41 more food service establishments that have a combined floor area of at
42 least eight thousand square feet and that: (1) operate under common
43 ownership or control; (2) are individually franchised outlets of a
44 parent business; or (3) do business under the same corporate name,
45 provided that the requirements of subparagraph (i) of paragraph a of
46 subdivision three of this section shall not apply to any such food
47 service establishment when the building or premises in which such food
48 service establishment is located is in compliance with such requirement
49 pursuant to paragraph h of this definition;
50 (vi) any location at which a food service establishment has a floor
51 area of at least seven thousand square feet, provided that the require-
52 ments of subparagraph (i) of paragraph a of subdivision three of this
53 section shall not apply to any such location when the building or prem-
54 ises containing such location is in compliance with such requirement
55 pursuant to paragraph g of this subdivision;
S. 8578 1247
1 (vii) any building or premises where food service establishments
2 having a total combined floor area of at least eight thousand square
3 feet are located and where the owner of the building or premises, or its
4 agent, arranges or contracts with a private carter for the removal of
5 waste from food service establishments having no less than eight thou-
6 sand square feet of such building or premises, provided that any such
7 food service establishments shall comply with the requirements of
8 subparagraphs (ii), (iii) and (iv) of paragraph a of subdivision three
9 of this section, but such requirements shall not apply to the owner or
10 agent of any such building or premises;
11 (viii) any location at which a food preparation establishment has a
12 floor area of at least six thousand square feet;
13 (ix) any catering establishment that is required to provide for the
14 removal of waste pursuant to section 16-116 of the code of the preceding
15 municipality whenever the anticipated attendance for any particular
16 event is greater than one hundred persons;
17 (x) any food service establishments located within and providing food
18 to one or more hotels totaling at least one hundred sleeping rooms; and
19 (xi) sponsors of a temporary public event.
20 e. "Designated area" means within a one hundred mile radius of the
21 city.
22 f. "Food manufacturer" means any establishment that processes or
23 fabricates food products from raw materials for commercial purposes,
24 provided that it shall not include any establishment engaged solely in
25 the warehousing, distribution or retail sale of product.
26 g. "Food preparation establishment" means a business that is primarily
27 engaged in providing food or food services for a temporary, fixed time,
28 or based on contractual arrangements for a specified period of time at
29 locations other than such establishment's permanent place of business.
30 h. "Food service establishment" means any premises or part of a prem-
31 ises that is required to provide for the removal of waste pursuant to
32 section 16-116 of the code of the preceding municipality where food is
33 provided directly to the consumer, whether such food is provided free of
34 charge or sold, and whether consumption occurs on or off the premises.
35 Food service establishment shall include, but not be limited to, full-
36 service restaurants, fast food restaurants, cafes, delicatessens, coffee
37 shops, and business, institutional or government agency cafeterias, but
38 shall not include retail food stores, convenience stores, pharmacies,
39 and mobile food vending units, as such term is defined in section 89.03
40 of the health code. Food service establishment shall also not include
41 any premises or place of business where the sole or primary source of
42 food is a refreshment counter where the available food is limited to
43 items such as beverages, prepackaged items, and snacks.
44 i. "Food wholesaler" means any establishment primarily engaged in the
45 wholesale distribution of groceries and related products including, but
46 not limited to, packaged frozen food, dairy products, poultry products,
47 confectioneries, fish and seafood, meat products, and fresh fruits and
48 vegetables but shall not apply to establishments that handle only pre-
49 packaged, non-perishable foods.
50 j. "Hotel" shall have the same meaning as set forth in section 27-2004
51 of the housing maintenance code.
52 k. "In vessel composting" means a process in which organic waste is
53 enclosed in a drum, silo, bin, tunnel, reactor, or other container for
54 the purpose of producing compost, maintained under controlled conditions
55 of temperature and moisture and where air-borne emissions are
56 controlled.
S. 8578 1248
1 l. "Organic waste" shall have the same meaning as set forth in section
2 16-303 of this title, except that for purposes of this section, organic
3 waste shall not include food that is donated to a third party, food that
4 is sold to farmers for feedstock, and meat by-products that are sold to
5 a rendering company.
6 m. "Private carter" means a business licensed by the business integri-
7 ty commission pursuant to title sixteen-A of the code of the preceding
8 municipality.
9 n. "Retail food store" means any establishment or section of an estab-
10 lishment where food and food products offered to the consumer are
11 intended for off-premises consumption, but shall exclude convenience
12 stores, pharmacies, greenmarkets or farmers' markets and food service
13 establishments.
14 o. "Sponsor of a temporary public event" means the applicant for a
15 street activity permit pursuant to chapter one of title fifty of the
16 rules of the city of New York, or any successor provision, for any
17 activity on a public street, street curb lane, sidewalk or pedestrian
18 island or plaza with an anticipated attendance of greater than five
19 hundred persons per day where the activity will interfere with or
20 obstruct the regular use of the location by pedestrian or vehicular
21 traffic. Such term shall not include activities conducted pursuant to a
22 valid film permit, demonstrations, parades or block parties.
23 p. "Stadium" means an establishment or facility that hosts live sport-
24 ing or entertainment events.
25 2. The commissioner shall, on a regular basis and no less than annual-
26 ly, evaluate the capacity of all facilities within the designated area
27 and the cost of processing organic waste by composting, aerobic or anae-
28 robic digestion, or any other method of processing organic waste that
29 the department approves by rule. If the commissioner determines that
30 there is sufficient capacity and that the cost of processing organic
31 waste consistent with this section is competitive with the cost of
32 disposing of organic waste by landfill or incineration, he or she shall
33 designate by rule all covered establishments or a subset of covered
34 establishments, based on any criteria, among such covered establish-
35 ments, that generate a quantity of organic waste that would not exceed
36 the evaluated capacity. All such designated covered establishments shall
37 comply with the requirements of subdivision three of this section begin-
38 ning no later than six months following such designation. In addition,
39 the commissioner shall include in his or her evaluation the capacity of
40 any facilities outside of the designated area that have arrangements or
41 contracts with transfer stations or private carters to accept and proc-
42 ess organic waste generated by and collected from covered establish-
43 ments.
44 3. a. Each designated covered establishment shall:
45 (i) either (1) ensure collection by a private carter of all organic
46 waste generated by such establishment for purposes of composting, aero-
47 bic or anaerobic digestion, or any other method of processing organic
48 waste that the department approves by rule, (2) transport its own organ-
49 ic waste to a facility that provides for composting, aerobic or anaero-
50 bic digestion, or any other method of processing organic waste that the
51 department approves by rule, provided that the covered establishment
52 first obtains a registration issued by the business integrity commission
53 pursuant to subdivision b of section 16-505 of the code of the preceding
54 municipality, or (3) provide for on-site in vessel composting, aerobic
55 or anaerobic digestion, or any other method of processing organic waste
56 that the department approves by rule for some or all of the organic
S. 8578 1249
1 waste it generates on its premises, provided that it arranges for the
2 collection or transport of the remainder of such organic waste, if any,
3 in accordance with clause one or two of this subparagraph;
4 (ii) post a sign, which shall be in addition to any other sign
5 required to be posted pursuant to this code, that states clearly and
6 legibly the trade or business name, address, and telephone number of,
7 and the day and time of pickup by, the private carter that collects the
8 covered establishment's organic waste, that such covered establishment
9 transports its own organic waste, or that such covered establishment
10 provides for on-site processing for all of the organic waste it gener-
11 ates on its premises, provided that:
12 (1) such sign shall be prominently displayed by affixing it to a
13 window near the principal entrance to the covered establishment so as to
14 be easily visible from outside the building or, if this is not possible,
15 prominently displayed inside the covered establishment near the princi-
16 pal entrance;
17 (2) catering establishments shall not be required to display on such
18 sign the day and time of the pickup by the private carter that collects
19 the establishment's organic waste; and
20 (3) this paragraph shall not apply to sponsors of temporary public
21 events;
22 (iii) provide separate bins for the disposal of organic waste in any
23 area where such organic waste is generated and disposed of; and
24 (iv) post instructions on the proper separation of organic waste where
25 such instructions will be visible to persons who are disposing of organ-
26 ic waste, provided that this subparagraph shall not apply to sponsors of
27 temporary public events.
28 b. Any covered establishment that arranges for the collection by a
29 private carter of its organic waste pursuant to this subdivision shall
30 not commingle such organic waste with other designated and non-designat-
31 ed recyclable material or solid waste, and shall place such organic
32 waste out for collection by a private carter in a container or contain-
33 ers that (i) has a lid and a latch that keeps the lid closed and is
34 resistant to tampering by rodents or other wildlife, (ii) has the capac-
35 ity that meets the disposal needs of the covered establishment and its
36 private carter, (iii) is compatible with the private carter's hauling
37 collection practices, and (iv) is closed and latched at the time it is
38 placed out for collection.
39 4. Any private carter that collects source separated organic waste
40 shall either:
41 a. deliver collected organic waste to a transfer station that has
42 represented that it will deliver such organic waste to a facility for
43 purposes of composting, aerobic or anaerobic digestion, or any other
44 method of processing organic waste that the department approves by rule;
45 or
46 b. deliver such organic waste directly to a facility for purposes of
47 composting, aerobic or anaerobic digestion, or any other method of proc-
48 essing organic waste that the department approves by rule.
49 5. Any transfer station that receives source separated organic waste
50 pursuant to this section shall deliver or have delivered such organic
51 waste directly to a facility that accepts organic waste for purposes of
52 composting, aerobic or anaerobic digestion, or any other method of proc-
53 essing organic waste that the department approves by rule. This subdivi-
54 sion shall not apply to waste that cannot be processed at an organic
55 waste processing facility.
S. 8578 1250
1 6. The provisions of this section relating to private carters shall be
2 enforced by the business integrity commission and the department. The
3 provisions of this section relating to covered establishments shall be
4 enforced by the department, the department of health and mental hygiene,
5 and the department of consumer and worker protection.
6 7. The department, the business integrity commission, the department
7 of health and mental hygiene, and the department of consumer affairs may
8 promulgate any rules necessary to implement this section, including, but
9 not limited to, rules establishing reporting requirements sufficient to
10 demonstrate compliance with this chapter.
11 8. Any person who owns or operates two or fewer food service estab-
12 lishments may request, and the commissioner shall grant, a waiver of the
13 requirements of this section if: a. no single food service establishment
14 has a floor area of at least seven thousand square feet; b. the food
15 service establishment or establishments are individually franchised
16 outlets of a parent business covered by paragraph d of the definition of
17 "covered establishment" set forth in subdivision one of this section;
18 and c. the owner or operator establishes that such food service estab-
19 lishment or establishments do not receive private carting services
20 through a general carting agreement between a parent business and a
21 private carter. Such waiver shall be valid for twelve months and shall
22 be renewable upon application to the commissioner via the department's
23 website.
24 § 16-307 City agency waste. 1. The commissioner shall adopt, amend and
25 implement rules, as necessary, governing the source separation or post-
26 collection separation, collection, processing, marketing, and sale of
27 designated recyclable materials including, but not limited to, desig-
28 nated metal, glass, plastic and paper generated by any agency, as such
29 term is defined in section 1-112 of the code of the preceding munici-
30 pality.
31 2. Every agency shall, no later than July first, two thousand eleven,
32 prepare and submit to the commissioner for approval, a waste prevention,
33 reuse and recycling plan. Such plan shall provide for the source sepa-
34 ration of designated metal, glass, plastic and paper, and such other
35 designated recyclable materials as the commissioner deems appropriate,
36 in all offices and buildings occupied by agencies that receive
37 collection service from the department and, to the extent practicable,
38 in those that receive private carter collection. Such plans shall
39 provide for the source separation of designated recyclable materials in
40 the lobbies of such offices or buildings that receive department
41 collection, unless the placement of bins for the source separation of
42 designated recyclable materials would be in violation of any other
43 provision of law, and, to the extent practicable, in the lobbies of such
44 offices or buildings that receive private carter collection. Each agency
45 shall designate a lead recycling or sustainability coordinator to over-
46 see implementation of such plans. If an agency has offices in more than
47 one city-owned building, then such agency shall designate one assistant
48 coordinator for each building in which such agency has offices, except
49 the building in which the lead coordinator has his or her office, to
50 assist the agency's lead coordinator.
51 3. On or before July first, two thousand twelve and annually thereaft-
52 er, every lead recycling or sustainability coordinator shall submit a
53 report to the head of his or her respective agency and to the commis-
54 sioner, summarizing actions taken to implement the waste prevention,
55 reuse and recycling plan for the previous twelve-month reporting period,
56 proposed actions to be taken to implement such plan, and updates or
S. 8578 1251
1 changes to any information included in such plan. The department shall
2 consolidate the information contained in all reports prepared pursuant
3 to this subdivision as part of the department's annual zero waste report
4 required pursuant to subdivision b of section 16-316.5 of the code of
5 the preceding municipality.
6 § 16-307.1 School recycling. 1. The chancellor of the department of
7 education shall designate a sustainability director for the department
8 of education, who shall be responsible for (a) setting policies, guide-
9 lines and goals to promote waste prevention, reuse and recycling prac-
10 tices, and (b) coordinating the department of education's waste
11 prevention, reuse and recycling program in all school buildings, charter
12 school locations, office buildings, and any other facilities under the
13 jurisdiction of the department of education that receive department
14 collection service.
15 2. The chancellor of the department of education shall promulgate such
16 rules as may be necessary to require that each school building, charter
17 school location, office building, and any other facility under the
18 jurisdiction of the department of education that receives department
19 collection service, develop a site-specific waste prevention, reuse and
20 recycling plan. Each such plan shall be implemented by January first,
21 two thousand eleven. Such plan shall include, at a minimum, a require-
22 ment that each classroom maintain a separate receptacle, container or
23 bin for the collection of designated recyclable paper, and that such
24 receptacle, container or bin be appropriately labeled or decorated with
25 recycling information. Such plan shall also provide that separate recep-
26 tacles, containers or bins for the collection of designated metal, glass
27 and plastic be appropriately labeled or decorated with recycling infor-
28 mation and be placed as close as practicable to school entrances, unless
29 the placement of such bins would be in violation of any other provision
30 of law, and in locations within schools where food and beverages are
31 routinely consumed.
32 3. The principal of each school under the jurisdiction of the depart-
33 ment of education shall designate a sustainability coordinator for his
34 or her school who shall be responsible for implementing his or her
35 school's waste prevention, reuse and recycling plan. The principal or
36 the sustainability coordinator shall complete, and submit to the depart-
37 ment of education sustainability director and to the chancellor, an
38 annual survey regarding such school's compliance with its waste
39 prevention, reuse and recycling plan.
40 4. The chancellor shall submit a report to the commissioner by January
41 first of each year regarding compliance with the requirements of this
42 section for the preceding July first through June thirtieth. The depart-
43 ment shall include the chancellor's report as part of the department's
44 annual zero waste report required pursuant to subdivision b of section
45 16-316.5 of the code of the preceding municipality.
46 5. The department shall distribute a model school waste prevention,
47 reuse and recycling plan to all primary and secondary schools not under
48 the jurisdiction of the department of education that receive department
49 collection service. All such primary and secondary schools shall desig-
50 nate a sustainability coordinator for each such school, and develop a
51 site-specific waste prevention, reuse and recycling plan. Each such plan
52 shall be implemented by January first, two thousand eleven. Such plan
53 shall include, at a minimum, a requirement that each room used primarily
54 as a classroom for students between kindergarten and the twelfth grade
55 maintain a separate receptacle, container or bin for the collection of
56 designated recyclable paper, and that such receptacle, container or bin
S. 8578 1252
1 be appropriately labeled or decorated with recycling information. Such
2 plan shall also provide that separate receptacles, containers or bins
3 for the collection of designated metal, glass and plastic be appropri-
4 ately labeled or decorated with recycling information and be placed as
5 close as practicable to school entrances, unless the placement of such
6 bins would be in violation of any other provision of law. Such bins
7 shall also be placed in centralized locations within such schools where
8 food and beverages are routinely consumed, other than classrooms, such
9 as cafeterias and lunchrooms, or, if such school lacks a cafeteria or
10 lunchroom, in a location readily accessible to all students in such
11 school.
12 § 16-307.2 City agency food waste prevention plans. 1. Definitions.
13 As used in this section, the following terms have the following mean-
14 ings:
15 a. Covered agency. The term "covered agency" means an agency that has
16 entered into at least one food purchase contract within the previous
17 twelve months.
18 b. Food purchase contract. The term "food purchase contract" means:
19 (i) a contract entered into by an agency in excess of the small purchase
20 limits established by the procurement policy board, the principal
21 purpose of which is to provide food, provided that such contract author-
22 izes purchases only by the agency that entered into such contract, or
23 (ii) a purchase order for food the value of which exceeds one hundred
24 thousand dollars, made by an agency against an existing contract.
25 c. Surplus food. The term "surplus food" means any food obtained
26 through a food purchase contract that is not used for the purpose for
27 which it was purchased and that would otherwise be discarded.
28 2. Agency food waste prevention plan. Every covered agency shall, no
29 later than October first, two thousand twenty-one, prepare and submit to
30 the commissioner for approval, a food waste prevention plan. Any agency
31 that becomes a covered agency after October first, two thousand twenty-
32 one shall prepare and submit to the commissioner for approval, a food
33 waste prevention plan within ninety days of becoming a covered agency.
34 The commissioner shall submit each approved agency food waste prevention
35 plan to the speaker of the council not later than seven days after such
36 approval. Such plan shall conform to all applicable provisions of law
37 and, at a minimum:
38 a. Establish guidelines for how to identify surplus food that may be
39 safely donated;
40 b. Identify methods to reduce the amount of surplus food, including
41 the utilization of the food donation web portal described in section
42 16-497 of the code of the preceding municipality, when appropriate;
43 c. Set forth procedures for the safe, efficient donation of surplus
44 food; and
45 d. Include any other provisions necessary to facilitate the reduction
46 of surplus food and the donation of surplus food.
47 3. Food waste prevention coordinator. Upon approval of an agency's
48 food waste prevention plan by the commissioner, each covered agency
49 shall designate a coordinator to oversee implementation of the plan
50 required by subdivision two of this section.
51 4. Report. a. On or before January first, two thousand twenty-two, and
52 annually thereafter for the previous twelve-month reporting period, each
53 covered agency shall submit a report to the commissioner. Such report
54 shall include, at a minimum:
55 i. A summary of the actions taken to implement the agency's food waste
56 prevention plan;
S. 8578 1253
1 ii. Any proposed additional actions to be taken to implement such
2 plan; and
3 iii. Any updates or changes to any information included in such plan.
4 b. The department shall consolidate the information contained in all
5 reports prepared pursuant to this subdivision and include such informa-
6 tion as part of the department's annual zero waste report required
7 pursuant to subdivision b of section 16-316.5 of the code of the preced-
8 ing municipality.
9 § 16-307.3 School food waste. 1. Definitions. As used in this section,
10 the following terms have the following meanings:
11 a. Chancellor. The term "chancellor" means the chancellor of the city
12 school district of the city of New York.
13 b. Food purchase contract. The term "food purchase contract" means any
14 purchase order or contract entered into by the department of education,
15 the principal purpose of which is to provide food, and the value of
16 which exceeds one hundred thousand dollars.
17 c. School. The term "school" means a school of the city school
18 district of the city of New York.
19 d. Surplus food. The term "surplus food" means any food obtained
20 through a food purchase contract that is not used for the purpose for
21 which it was purchased and that would otherwise be discarded.
22 2. Food waste prevention plan. No later than October first, two thou-
23 sand twenty-one, the chancellor shall prepare and submit to the commis-
24 sioner a food waste prevention plan. Preparation of such food waste
25 prevention plan shall provide school sustainability coordinators desig-
26 nated pursuant to subdivision three of section 16-307.1 of this chapter
27 an opportunity to offer ideas concerning food waste prevention. Such
28 plan shall conform to all applicable provisions of law and include, but
29 need not be limited to, the following information:
30 a. Guidelines for how to identify surplus food that may be safely
31 donated;
32 b. Any methods the chancellor has identified to reduce the amount of
33 surplus food in schools;
34 c. Any procedures the chancellor has identified that would allow the
35 department of education or a school to donate surplus food safely and
36 efficiently; and
37 d. Any barriers the chancellor has identified that would prevent the
38 safe and efficient donation of surplus food.
39 3. Review by commissioner. The commissioner shall review the plan
40 required pursuant to subdivision two of this section within ninety days
41 of its submission and shall submit recommendations on the plan to the
42 chancellor. The commissioner shall simultaneously submit a copy of the
43 chancellor's plan and the commissioner's recommendations to the speaker
44 of the council.
45 4. Report. On or before February first, two thousand twenty-two, the
46 chancellor shall submit a report to the commissioner. Such report shall
47 include, at a minimum:
48 a. A summary of actions taken to implement the food waste prevention
49 plan;
50 b. A summary of actions that the chancellor proposes be taken to
51 implement such plan; and
52 c. Any updates or changes to any information included in such plan.
53 § 16-308 Organic waste. 1. The commissioner shall provide for the
54 source separation, collection and composting of yard waste, unless the
55 generator otherwise provides for recycling or storage for composting or
56 mulching. In addition, the commissioner shall provide for the collection
S. 8578 1254
1 and composting of yard waste generated and source separated at residen-
2 tial properties owned or operated by the New York city housing authori-
3 ty. There shall be operated by or on behalf of the department one or
4 more yard waste composting facilities through which the department shall
5 compost yard waste collected by or delivered to the department pursuant
6 to this section. In order to comply with this provision, the department
7 may utilize the services of privately-owned or operated facilities. The
8 department shall also work in consultation with the composting facility
9 siting task force established by the two thousand six solid waste
10 management plan to identify additional locations to site yard waste
11 composting facilities with the goal of establishing at least one such
12 composting facility in each borough where the department conducts yard
13 waste composting collection.
14 2. Any city agency, or person under contract with a city agency, that
15 generates a substantial amount of yard waste shall, in coordination with
16 the department, provide for the source separation, collection and
17 composting of such yard waste. Unless otherwise provided by law, the
18 department shall accept for composting any city agency yard waste source
19 separated for department collection pursuant to this subdivision.
20 3. No landfill, waste transfer station, intermodal facility, incinera-
21 tor or resource recovery facility owned, operated or used by the depart-
22 ment shall accept truck loads of department-managed waste primarily
23 composed of yard waste for final disposal, except that composted yard
24 waste may be used as part of the final vegetative cover for a department
25 landfill.
26 4. All city agencies responsible for the maintenance of public lands
27 shall to the maximum extent practicable and feasible give preference to
28 the use of compost materials derived from the city's yard waste in all
29 land maintenance activities.
30 5. Generators of yard waste, except those identified in subdivision
31 seven of this section, shall separate, tie, bundle, or place into bags
32 or receptacles, in accordance with rules promulgated by the commission-
33 er, any yard waste set out for collection by the department pursuant to
34 subdivision two of this section. The commissioner shall notify all resi-
35 dents in districts that receive yard waste collection by the department
36 of such pre-collection procedures, and undertake any other action neces-
37 sary to effectuate the purposes of this subdivision.
38 6. No person engaged in a business that generates yard waste shall
39 leave such yard waste for collection by the department, or disperse such
40 yard waste in or about the curb or street. Any person engaged in a busi-
41 ness that generates yard waste shall be required to collect and dispose
42 of such yard waste at a permitted composting facility; provided, howev-
43 er, that if the department, by written order of the commissioner, deter-
44 mines that there is insufficient capacity at permitted composting facil-
45 ities within the city, then such yard waste may be disposed of at any
46 appropriately permitted solid waste management facility.
47 7. Each permitted composting facility within the city, including those
48 operated by city agencies, shall annually report to the commissioner the
49 amount of yard waste and any other organic waste collected and disposed
50 of by weight at such composting facility. All such reports shall be
51 submitted prior to February first of each calendar year and shall
52 contain the amount collected and disposed of for the previous calendar
53 year. The department shall consolidate the information contained in all
54 reports prepared pursuant to this subdivision and include such informa-
55 tion as part of the department's annual zero waste report required
S. 8578 1255
1 pursuant to subdivision b of section 16-316.5 of the code of the preced-
2 ing municipality.
3 8. No person residing in a district where the department provides
4 residential yard waste composting collection pursuant to subdivision two
5 of this section shall dispose of grass clippings as regular waste for
6 collection by the department during the period of time when the depart-
7 ment conducts such composting collection. The department shall conduct
8 outreach and education to inform residents within such districts of the
9 dates when it will conduct yard waste composting collection. No person
10 residing in a district where the department provides residential yard
11 waste composting collection shall be held liable for a violation of this
12 subdivision during the first year the department provides such residen-
13 tial yard waste composting collection.
14 § 16-308.1 Curbside organics collection. 1. Organics collection
15 program. The department shall establish a mandatory citywide curbside
16 organics collection program for the diversion of organic waste in
17 accordance with this section. Such program shall be implemented by no
18 later than:
19 a. October second, two thousand twenty-three, for residential proper-
20 ties in no less than thirty sanitation districts, as determined by the
21 commissioner by rule.
22 b. October seventh, two thousand twenty-four, for residential proper-
23 ties in all remaining sanitation districts.
24 2. Implementation plan. No later than July first, two thousand twen-
25 ty-three, the department shall develop, submit to the mayor and speaker
26 of the council, and post on the department's website a curbside organics
27 collection implementation plan. Such plan shall include information
28 related to, at minimum:
29 a. How the department will implement such program;
30 b. The education and outreach program required pursuant to subdivision
31 five of this section; and
32 c. How the department will distribute necessary materials, including
33 rodent-proof organics collection bins, at no cost to residential build-
34 ing owners, and a timeline for such distribution.
35 3. End use of collected organic waste. In the next solid waste manage-
36 ment plan prepared pursuant to section 27-0107 of the environmental
37 conservation law and presented to the council pursuant to section 16-140
38 of the code of the preceding municipality following the effective date
39 of this section, the department shall include a plan to maximize the
40 usable composting of organic waste collected pursuant to this section.
41 Such plan for the usable composting of organic waste shall describe the
42 amount of organic waste collected and sent to composting facilities to
43 be processed into usable compost pursuant to this section.
44 4. Reporting. The department shall report by weight the total amount
45 of organic waste diverted pursuant to this section during the previous
46 year, disaggregated by sanitation district. Such report shall be
47 included as part of the department's annual zero waste report required
48 pursuant to section 16-316.5 of the code of the preceding municipality.
49 5. Education and outreach. The department shall develop an outreach
50 and education program to educate residents, building owners, and staff
51 of residential buildings on the curbside organics collection program
52 established pursuant to this section. Materials used for such outreach
53 and education program shall be available in all designated citywide
54 languages, as defined in section 23-1101 of the code of the preceding
55 municipality, and any additional languages as determined by the depart-
56 ment in consultation with local community organizations. No later than
S. 8578 1256
1 two months prior to the implementation of the curbside organics
2 collection program for residential properties in a sanitation district
3 pursuant to subdivision one of this section, the department shall
4 distribute such materials to residents, building owners, and community
5 based organizations in such district. Such materials shall also be made
6 available on the department's website. Such materials shall include:
7 a. A detailed explanation of organic waste and the benefits of curb-
8 side organics collection;
9 b. Information on how the curbside organics collection program will be
10 implemented and instructions for how to properly source separate organic
11 waste; and
12 c. Any other information as determined by the commissioner.
13 6. Rules. The commissioner shall adopt and implement rules as neces-
14 sary to effectuate this section. Such rules may include, but need not be
15 limited to, the designation of organic waste as a recyclable material
16 pursuant to subdivision two of section 16-305 of this chapter, proce-
17 dures requiring the placement of organic waste at the curbside, in
18 specialized containers or in another manner determined by the commis-
19 sioner pursuant to subdivision four of such section, and the implementa-
20 tion and enforcement of this section and such rules in buildings
21 containing four or more dwelling units pursuant to subdivisions five,
22 six and seven of section 16-305 of this chapter.
23 7. Penalty. A residential building owner who violates this section
24 shall be liable for a civil penalty as set forth in section 16-324 of
25 this title, except that prior to April first, two thousand twenty-five,
26 a residential building owner who violates this section shall be issued a
27 written warning that a violation has been observed, provided that noth-
28 ing in this subdivision shall preclude the department from enforcing any
29 rules relating to yard waste separation promulgated pursuant to section
30 16-308 of this chapter.
31 § 16-308.2 Organic waste drop off sites. 1. Definitions. As used in
32 this section, the following terms have the following meanings:
33 a. Community partner. The term "community partner" means a not-for-
34 profit organization, community garden or other similar organization that
35 operates or makes available to the public an organic waste drop off
36 site.
37 b. Community scale composting facility. The term "community scale
38 composting facility" means a physical location operated by a not-for-
39 profit organization that engages in composting, through a registration
40 or agreement with the department, but that is not of sufficient size so
41 as to be required to obtain a permit for the operation of such facility
42 from the New York state department of environmental conservation.
43 c. Organic waste drop off site. The term "organic waste drop off site"
44 means a physical location for the collection of organic waste from
45 members of the public.
46 2. Except as provided in subdivision three of this section, no later
47 than April first, two thousand twenty-four, the department, in consulta-
48 tion with community partners, shall ensure that no less than thirty
49 organic waste drop off sites are established and operational throughout
50 the city, provided that no less than three such sites are established in
51 each borough. Each such site shall have a minimum of twenty hours avail-
52 able per week for individuals to drop off organic waste, except that
53 organic waste drop off sites operated by community partners shall be
54 open for a minimum of five hours per week, and each such organic waste
55 drop off site shall be located in a geographic area that is easily
56 accessible, including for persons with disabilities, and in close prox-
S. 8578 1257
1 imity to public transportation, provided, however, an organic waste drop
2 off site operated by a community partner may be operated on a seasonal
3 basis.
4 3. For the purposes of subdivision two of this section, an organic
5 waste drop off site may be a community scale composting facility or a
6 drop off site operated by the department, including co-location with a
7 recycling center, as required pursuant to section 16-310.3 of this chap-
8 ter.
9 4. No later than January first, two thousand twenty-six, the depart-
10 ment shall review the requirements of subdivision two of this section
11 and submit to the mayor and the speaker of the council a recommendation
12 as to whether such drop off sites should be continued.
13 5. Site information. The department shall post on its website informa-
14 tion about each organic waste drop off site established pursuant to this
15 section. Such information shall include each such site's address,
16 contact information, hours of operation and services provided. Where
17 applicable, such information shall also be clearly posted in a publicly
18 visible location at the entrance to each such site.
19 6. Education and outreach. The department, in consultation with any
20 agency or office designated by the mayor, shall develop an education and
21 outreach program to inform residents about the organic waste drop off
22 sites and community scale composting facilities established pursuant to
23 this section. Such education and outreach shall include the information
24 set forth in subdivision five of this section. Any educational or
25 outreach materials developed pursuant to this section, as well as any
26 other educational materials on recycling that the commissioner deems
27 relevant, shall be available in all designated citywide languages, as
28 defined in section 23-1101 of the code of the preceding municipality,
29 and supplied to each organic waste drop off site. The department shall
30 also perform outreach to community partners and other not-for-profit
31 organizations to provide them with information on how the public can
32 engage in opportunities to work with the department to open and operate
33 organic waste drop off sites and community scale composting facilities.
34 7. Reporting. The department shall report annually on the operation of
35 organic waste drop off sites. Such report shall be included as part of
36 the department's annual zero waste report required pursuant to section
37 16-316.5 of the code of the preceding municipality. Such report shall
38 include, at a minimum, the following information, disaggregated by
39 organic waste drop off site where feasible:
40 a. The total amount of material collected at such site;
41 b. The number of individuals who used such site during the reporting
42 period;
43 c. The number of full-time and part-time staff members working at such
44 site, if any; and
45 d. Where the organic waste collected at such site was processed
46 following collection.
47 § 16-309 Christmas trees. The commissioner shall establish and imple-
48 ment a curbside collection system for Christmas trees during a minimum
49 of two weeks in January of each year and provide for the composting or
50 recycling of the Christmas trees the department collects or receives for
51 disposal.
52 § 16-310 Public space recycling. 1. The department shall expand its
53 public space recycling program by increasing the number of public space
54 recycling receptacles for the collection of recyclable materials includ-
55 ing, but not limited to, metal, glass, plastic and paper designated as
56 recyclable materials by the commissioner, to a cumulative total of at
S. 8578 1258
1 least five hundred public space recycling receptacles, and to a cumula-
2 tive total of at least one thousand public space recycling receptacles,
3 at public locations in the city, which shall be in or near public parks,
4 transit hubs, or commercial locations with high-pedestrian traffic. As
5 part of such expansion, the department shall place public space recycl-
6 ing receptacles in all business improvement districts that provide
7 public litter basket maintenance. Whenever practicable, public space
8 recycling receptacles placed pursuant to this section shall be placed
9 adjacent to public litter baskets.
10 2. Notwithstanding the provisions of subdivision one of this section,
11 the department shall not be required to expand the public space recycl-
12 ing program beyond existing or newly-established collection routes that
13 can be efficiently serviced by the department. The commissioner shall
14 have the authority to remove any public space recycling receptacle
15 placed pursuant to this section, provided that the department replaces
16 any such public space recycling receptacle, within thirty days of
17 removal, with additional public space recycling receptacles at the same
18 or in a different location on a one-to-one basis.
19 3. No person responsible for removing or transporting recyclable mate-
20 rials placed in public space recycling receptacles shall commingle such
21 recyclable materials with non-recyclable materials or otherwise improp-
22 erly dispose of such recyclable materials.
23 4. The department shall report the total number of public space recy-
24 cling receptacles added during the relevant reporting year, and the
25 locations in which they were placed. Such report shall be included as
26 part of the department's annual zero waste report required pursuant to
27 subdivision b of section 16-316.5 of the code of the preceding munici-
28 pality.
29 5. The department may enter into sponsorship or partnership agreements
30 with entities such as for-profit and not-for-profit corporations and
31 district management associations established in accordance with section
32 25-414 of the code of the preceding municipality to further the goals of
33 this chapter.
34 § 16-310.1 Textile reuse and recycling program. 1. On or before Janu-
35 ary first, two thousand eleven, the department shall establish a city-
36 wide textile reuse and recycling program that shall, at a minimum,
37 provide for the recovery of textiles by placing department-approved
38 publicly accessible textile drop-off bins at appropriate locations on
39 city property or property maintained by the city and organizing public
40 textile reuse and recycling sites throughout the city that provide
41 convenient drop-off locations for all city residents. In addition, the
42 commissioner shall explore opportunities to work cooperatively with
43 private entities, including, but not limited to, not-for-profit corpo-
44 rations and religious institutions, to promote expanded siting of
45 publicly accessible textile drop-off bins on private property throughout
46 the city. The department shall consider using department personnel or
47 facilities in order to implement the provisions of this section.
48 2. No publicly accessible textile drop-off bin placed pursuant to this
49 section shall be placed on city property or property maintained by the
50 city, or on a public sidewalk or roadway, unless otherwise authorized by
51 the city. No publicly accessible textile drop-off bin shall be placed on
52 private property without the written permission of the property owner or
53 the property owner's authorized agent. The owner or other person respon-
54 sible for each such bin shall report at least every three months to the
55 department the amount of textiles collected in such bin by weight. Each
56 publicly accessible textile drop-off bin shall prominently display on
S. 8578 1259
1 the front and on at least one other side of the bin, the name, address
2 and telephone number of the owner or other person responsible for the
3 bin. This information shall be printed in characters that are plainly
4 visible. In no event shall a post office box be considered an acceptable
5 address for purposes of this subdivision.
6 3. The department shall report by weight the amount of textiles
7 collected in publicly accessible textile drop-off bins located on city
8 property or property maintained by the city, through public textile
9 reuse and recycling sites pursuant to subdivision one of this section
10 and in publicly accessible textile drop-off bins maintained on private
11 property. Such report shall be included as part of the department's
12 annual zero waste report required pursuant to subdivision b of section
13 16-316.5 of the code of the preceding municipality.
14 § 16-310.2 Paint stewardship program. 1. The commissioner shall estab-
15 lish a voluntary paint stewardship program under which manufacturers of
16 architectural paint, in cooperation with distributors of architectural
17 paint and retail establishments that sell, or offer for sale, architec-
18 tural paint in the city, may establish a collection or other reclamation
19 system to collect architectural paint from consumers for reuse, recycl-
20 ing or environmentally sound disposal.
21 2. The commissioner shall provide assistance or guidance to partic-
22 ipating architectural paint manufacturers, distributors and retail
23 establishments in developing and implementing strategies to reduce the
24 quantity of architectural paint in the waste stream, promote the reuse
25 of architectural paint that would otherwise be discarded and disseminate
26 information regarding options to recycle architectural paint including,
27 but not limited to, posting information regarding the voluntary paint
28 stewardship program on the department's website.
29 § 16-310.3 Community recycling. 1. Community recycling centers. No
30 later than December thirty-first, two thousand twenty-four, the depart-
31 ment shall ensure that at least two community recycling centers are
32 established and operational in each borough. Each such center shall be
33 available for drop offs at least twenty-four hours per week, including
34 weekends. Such centers shall be located in geographic areas that are
35 easily accessible, including for persons with disabilities, and shall be
36 in close proximity to public transportation and public housing develop-
37 ments, where practicable. Any organic waste drop off site provided for
38 by local law may be co-located within such a center.
39 2. Community recycling events. No later than September thirtieth, two
40 thousand twenty-three, and annually thereafter, the department shall
41 host no less than one community recycling event in each community
42 district. Each such event shall be located in a geographic area that is
43 easily accessible, including for persons with disabilities, and in close
44 proximity to public transportation and public housing developments,
45 where practicable. Such events may be co-located with other sanitation
46 services. Community recycling events required by this subdivision shall
47 be in addition to any recycling event operated by an entity or organiza-
48 tion other than the department, provided that any recycling event oper-
49 ated pursuant to a contract with the department shall be considered to
50 be hosted by the department for purposes of this section.
51 3. Materials collected. Each community recycling center and community
52 recycling event shall accept, to the extent practicable, inorganic mate-
53 rial that is not collected through regular curbside collection but that
54 can be recycled or reused. One community recycling center per borough
55 shall also accept hazardous material, as practicable and as defined by
56 the department, that should not be disposed of as curbside waste.
S. 8578 1260
1 4. Community recycling center and event information. The department
2 shall make available on the department's website, and distribute to each
3 local community board, the following information about the community
4 recycling centers and community recycling events required by this
5 section:
6 a. Location, including street address and borough;
7 b. Contact information;
8 c. Hours of operation; and
9 d. Services provided.
10 5. Education and outreach. The department, in consultation with any
11 agency identified by the mayor, shall develop an outreach and education
12 program to inform residents about community recycling centers and commu-
13 nity recycling events, including their locations, contact information,
14 hours of operation, and the services they provide.
15 6. Reporting. The department shall report annually on the operation
16 community recycling centers and community recycling events required
17 pursuant to this section. Such report shall be included as part of the
18 department's annual waste diversion report required pursuant to section
19 16-316.5 of the code of the preceding municipality. Such report shall
20 include, but need not be limited to, the following information, disag-
21 gregated by community recycling center and community recycling event,
22 where feasible:
23 a. The number of individuals utilizing such centers and events;
24 b. The material collected at each such center and event, disaggregated
25 by material type;
26 c. The number of full-time and part-time staff persons working at each
27 such center and event;
28 d. Where each type of material collected is sent; and
29 e. A description of the education programs offered to the public.
30 § 16-311. Recycling outreach and education. 1. The department shall
31 provide instruction and materials for residential building owners, net
32 lessees or persons in charge of such buildings, and their employees and
33 residents, in order to improve compliance with the provisions of this
34 chapter.
35 2. The commissioner shall establish a recycling education program that
36 shall include recycling instructional workshops, training curricula and
37 other relevant materials for residential building owners, net lessees or
38 persons in charge of such buildings, and their employees and residents,
39 including an internet-based recycling tutorial. Such program shall also
40 provide instructional workshops, training curricula, and other relevant
41 material to employees of city agencies, including a leaf and yard waste
42 training program for employees of any such agencies that generate
43 significant leaf and yard waste. The commissioner may utilize a private
44 entity or not-for-profit corporation to assist with the establishment or
45 performance of such program.
46 § 16-312 Processing recyclable materials. The commissioner shall
47 establish procedures and standards for processing recyclable materials
48 designated pursuant to section 16-305 of this chapter in city owned or
49 operated recycling centers, city owned or operated transfer stations or
50 any city owned or operated facility that renders recyclable materials
51 suitable for reuse or marketing and sale. The commissioner shall annu-
52 ally review such procedures and standards and make any changes necessary
53 to conform to the requirements of the marketplace.
54 § 16-313 Marketing recyclable materials. The department shall estab-
55 lish procedures, standards and strategies to market the recyclable mate-
56 rials designated pursuant to section 16-305 of this chapter, including
S. 8578 1261
1 but not limited to maintaining a list of prospective buyers, establish-
2 ing contact with prospective buyers, entering into contracts with
3 buyers, and reviewing and making any necessary changes in collecting or
4 processing the materials to improve their marketability.
5 § 16-314 Recycling program revisions. The commissioner shall annually
6 review the recycling program and all rules promulgated thereunder, and
7 shall make the necessary revisions to improve the efficiency of collect-
8 ing, processing, marketing and selling the materials recycled pursuant
9 to this title. These revisions may include designating additional
10 recyclable materials. The commissioner shall not delete designated mate-
11 rials without designating additional materials so that the total quanti-
12 ty, by weight, of all designated recyclable materials collected, proc-
13 essed, marketed and sold does not decrease.
14 Where the commissioner determines that it is appropriate to delete a
15 designated material, the department shall provide notice of such
16 deletion to the mayor and the council, including the reason for such
17 deletion, and shall provide any relevant data supporting such decision.
18 § 16-315 Notice, education and research programs. 1. In addition to
19 the notice requirements of this code, within thirty days of the effec-
20 tive date of any rules promulgated pursuant to this title, and as
21 frequently thereafter as the commissioner deems necessary, the depart-
22 ment shall notify all persons occupying residential, commercial and
23 industrial premises affected by the rules, of the requirements of the
24 rules, by posting notices containing recycling information in public
25 places where such notices are customarily placed and, in the commission-
26 er's discretion, employing any other means of notification deemed neces-
27 sary and appropriate.
28 2. The commissioner shall compile relevant recycling, reuse and
29 composting information, including material available on the department's
30 website, to create and make available a guide to the city's residential
31 recycling program. Such guide shall, at a minimum, summarize and explain
32 the laws and rules governing curbside recycling, list the collection
33 locations and collection dates for non-curbside collected recyclable
34 materials such as household hazardous waste and textiles, and provide
35 detailed information and instructions on how to recycle any materials
36 not collected by the department for which non-city or non-department
37 recycling programs exist. Such guide shall be made available to resi-
38 dential building owners, or the net lessees or persons in charge of such
39 buildings, community boards, not-for-profit organizations, public
40 schools, and other relevant agencies and entities, and shall also be
41 made available on the department website. The commissioner shall update
42 the recycling guide biennially, or as necessary, based on changes to
43 recycling laws, rules or other relevant information to be included ther-
44 ein.
45 3. The department shall develop and implement an educational program,
46 in conjunction with the department of education, private schools, labor
47 organizations, businesses, neighborhood organizations, and other inter-
48 ested and affected parties, and using flyers, print and electronic
49 advertising, public events, promotional activities, public service
50 announcements, and such other techniques as the commissioner determines
51 to be useful, to assure the greatest possible level of compliance with
52 the provisions of this title. The educational program shall encourage
53 waste reduction, the reuse of materials, the purchase of recyclable
54 products, and participation in city and private recycling activities.
55 4. The department shall perform such research and development activ-
56 ities, in cooperation with other city agencies, and public and private
S. 8578 1262
1 institutions, as the commissioner determines to be helpful in implement-
2 ing the city's recycling program. Such research shall include, but not
3 be limited to, investigation into the use of cooperative marketing
4 programs, material recovery facilities, recycling as an economic devel-
5 opment tool, export promotion, tax credits and exemptions for market
6 promotion.
7 Chapter 5
8 RECYCLING ADVISORY BOARDS
9 § 16-317 Citizens' solid waste advisory boards; membership. Within six
10 months of the effective date of this title, the city shall establish a
11 citizens' solid waste advisory board (the "citizens' board"), consisting
12 of no fewer than twenty members who for the first term shall be
13 comprised of the members of the city's citizens' advisory committee on
14 resource recovery and other persons appointed jointly by the mayor and
15 the council members. For each subsequent term, all members shall be
16 appointed jointly by the mayor and the council members. The membership
17 of the citizens' board shall represent community boards, recycling
18 industries, carting industries, environmental organizations, government
19 agencies, labor organizations, business organizations, property owners,
20 tenant organizations and members of the general public. Members shall
21 serve for a term of one year without compensation and shall designate
22 one member to serve as chairperson and one as vice-chairperson.
23 § 16-318 Functions of the citizens' board. 1. The department shall
24 submit to the mayor the portion of the biennial report addressing the
25 city's recycling program that is prepared pursuant to the city's two
26 thousand six solid waste management plan, simultaneous with the
27 submission of such report to the mayor and the council. The mayor shall
28 distribute copies of the plans to each member of the citizens' board.
29 Within ninety days thereafter, the citizens' board shall review the
30 plans, conduct a public hearing on the plans and make written recommen-
31 dations to the mayor, the department and the council with respect to the
32 recycling program. The citizens' board shall also annually advise the
33 mayor and the department with respect to the development, promotion and
34 operation of the recycling program and pursuant to this function shall
35 formulate and recommend:
36 (a) annual recycling goals equal to or greater than those set forth in
37 section 16-305 of this title and the methods proposed to achieve such
38 goals;
39 (b) means to encourage community participation in the recycling
40 program; and
41 (c) means to promote the recycling program and educate the public with
42 regard to the program.
43 2. The citizens' board shall assume all the responsibilities and func-
44 tions of the city's citizens' advisory committee on resource recovery.
45 § 16-319 Citywide recycling advisory board; membership. There shall be
46 a citywide recycling advisory board (the "citywide board") consisting of
47 at least one representative from each citizen's board, five members
48 appointed by the council, and five members appointed by the mayor. The
49 membership of the citywide board shall represent community boards, recy-
50 cling industries, carting industries, environmental organizations,
51 government agencies, labor organizations, business organizations, real
52 property owners, tenant organizations and members of the general public.
53 Members shall serve for a term of one year without compensation and
S. 8578 1263
1 shall designate one member to serve as chairperson and one as vice-
2 chairperson.
3 § 16-320 Functions of the citywide board. The citywide board shall
4 meet at least four times a year to discuss citywide recycling issues,
5 including but not limited to budgetary issues. The citywide board shall
6 annually review the department's recycling program and make recommenda-
7 tions to the mayor and the council concerning improvements to and chang-
8 es in the program.
9 § 16-321 Disclosure requirements. 1. Whenever a person, other than a
10 public servant, appointed to any advisory board created pursuant to this
11 chapter, engages in any business dealings with the department, or
12 engages in business dealings with any other agency that relate to proc-
13 essing or disposal of solid waste or of waste described in paragraph (c)
14 of subdivision fifteen of section 16-303 of this title or to recycling,
15 or has an interest in a firm that is engaged in such business dealings
16 with the department or with such other agency, such person shall, prior
17 to appointment, disclose the nature of such business dealings to the
18 commissioner and to the body or officer appointing such person, and,
19 after appointment, disclose the nature of such business dealings to the
20 commissioner and to all other members of such board; provided that such
21 person need not disclose the amount of such business dealings.
22 2. When used in this section:
23 (a) "Advisory committee" means a committee, council, board or similar
24 entity that is constituted to provide advice or recommendations to the
25 city and which has no authority to take a final action on behalf of the
26 city, to take any action that would have the effect of conditioning,
27 limiting or requiring any final action by any other agency, or to take
28 any action that is authorized by law.
29 (b) "Agency" means a city, county, borough or other office, position,
30 administration, department, division, bureau, board, commission, author-
31 ity, corporation, advisory committee or other agency of government, the
32 expenses of which are paid in whole or in part from the city treasury,
33 and shall include but not be limited to, the council, the offices of
34 each elected official, the department of education, community school
35 boards, community boards, the financial services corporation, the health
36 and hospitals corporation and the public development corporation, but
37 shall not include any court or any corporation or institution maintain-
38 ing or operating a public library, museum, botanical garden, arboretum,
39 tomb, memorial building, aquarium, zoological garden or similar facili-
40 ty.
41 (c) "Blind trust" means a trust in which a candidate for any advisory
42 board created pursuant to this chapter or a member of such board, or the
43 spouse or unemancipated child of such candidate or member, has a benefi-
44 cial interest, the holdings and sources of income of which such candi-
45 date or member and such spouse and unemancipated child have no know-
46 ledge, and the trustee of which shall have independent authority and
47 discretion.
48 (d) "Business dealings" means any transaction involving the sale,
49 purchase, rental, disposition or exchange of any goods, services or
50 property, and any performance of or litigation with respect to any of
51 the foregoing, but shall not include any transaction involving the resi-
52 dence of any candidate for any advisory board created pursuant to this
53 chapter or of any member of such board, or any ministerial matter.
54 (e) "City" means the city of Staten Island and includes an agency of
55 the city.
S. 8578 1264
1 (f) "Elected official" means a person holding office as mayor, comp-
2 troller, public advocate, borough president or member of the council.
3 (g) "Firm" means a sole proprietorship, joint venture, partnership,
4 corporation or any other form of enterprise, but shall not include a
5 public benefit corporation or local development corporation.
6 (h) "Interest" means an ownership interest in a firm or a position
7 with a firm.
8 (i) "Ministerial matter" means an administrative act that is carried
9 out in a prescribed manner and which does not involve substantial
10 personal discretion.
11 (j) "Ownership interest" means an interest in a firm that is held by a
12 candidate for any advisory board created pursuant to this chapter, or by
13 a member of such board, or by the spouse, domestic partner, or unemanci-
14 pated child of such candidate or member, which exceeds five percent of
15 the firm or an investment of twenty-five thousand dollars in cash or
16 other form of commitment, whichever is less, or five percent or twenty-
17 five thousand dollars of the firm's indebtedness, whichever is less, and
18 any lesser interest in a firm when such candidate or member, or such
19 spouse, domestic partner, or unemancipated child, exercises managerial
20 control or responsibility regarding any such firm, but shall not include
21 interests held in any pension plan, deferred compensation plan or mutual
22 fund, the investments of which are not controlled by such candidate or
23 member, or by such spouse, domestic partner, or unemancipated child, or
24 in any blind trust that holds or acquires an ownership interest.
25 (k) "Position" means a position in a firm, such as an officer, direc-
26 tor, trustee, employee or any management position, or as an attorney,
27 agent, broker or consultant to the firm, which does not constitute an
28 ownership interest in the firm.
29 (l) "Public servant" means all officials, officers and employees of
30 the city, including members of community boards and members of advisory
31 committees, except unpaid members of advisory committees shall not be
32 public servants.
33 (m) "Spouse" means a husband or wife of a candidate for any advisory
34 board created pursuant to this chapter or of a member of such board who
35 is not legally separated from such candidate or member.
36 (n) "Unemancipated child" means any son, daughter, step-son or step-
37 daughter who is under the age of eighteen, unmarried and living in the
38 household of a candidate for any advisory board created pursuant to this
39 chapter or of the member of such board.
40 Chapter 7
41 REGULATIONS SUBMITTED TO COUNCIL AND ENFORCEMENT
42 § 16-323 Rules submitted to council. Rules adopted by the commission-
43 er pursuant to this chapter shall become effective only after filing and
44 publication as prescribed by chapter forty-five of the charter of the
45 preceding municipality. In addition, notwithstanding the provisions of
46 chapter forty-five of such charter, prior to adoption by the commission-
47 er of a final rule pursuant to subdivision e of section one thousand
48 forty-three of such charter, and after consideration of relevant
49 comments presented pursuant to subdivision d of such section, the
50 commissioner shall submit to the council the text of the final rule
51 proposed to be published in the city record. The council shall have
52 thirty days from the date of such submission to comment upon such text.
53 The final rule may include revisions in response to comments from the
54 council and shall not be published in the city record before the thir-
S. 8578 1265
1 ty-first day after such submission, unless the speaker of the council
2 authorizes earlier publication.
3 § 16-324 Enforcement. 1. Subject to the provisions of subdivision two
4 of this section, any person who violates this chapter, except section
5 16-306.1 of this title, subdivision seven of section 16-308 of this
6 title, section 16-310.1 of this title or section 16-329 of the code of
7 the preceding municipality, or any rule promulgated pursuant thereto,
8 shall be liable for a civil penalty recoverable in a civil action
9 brought in the name of the commissioner or in a proceeding returnable
10 before the environmental control board, as follows:
11 a. For residential buildings containing fewer than nine dwelling
12 units, the civil penalty shall be in an amount of twenty-five dollars
13 for the first violation, fifty dollars for the second violation commit-
14 ted on a different day within a period of twelve months, and one hundred
15 dollars for the third and each subsequent violation committed on a
16 different day within a period of twelve months, provided that the court
17 before which such civil action is brought or such board may waive the
18 penalty for the first violation upon a showing of good cause.
19 b. For residential buildings containing nine or more dwelling units
20 and commercial, manufacturing or industrial buildings, the civil penalty
21 shall be in an amount of one hundred dollars for the first violation,
22 two hundred dollars for the second violation committed on a different
23 day within a period of twelve months, and four hundred dollars for the
24 third and each subsequent violation committed on a different day within
25 a period of twelve months, provided that the court before which such
26 civil action is brought or such board may waive the penalty for the
27 first violation upon a showing of good cause. The owner, net lessee or
28 person in charge of any residential building of nine or more dwelling
29 units or a commercial, manufacturing or industrial building with respect
30 to which four or more violations were committed on different days within
31 a period of six months shall be classified as a persistent violator.
32 c. For persistent violators only, each container or bag containing
33 solid waste that has not been source separated or placed out for
34 collection in accordance with the rules promulgated by the commissioner
35 pursuant to this chapter shall constitute a separate violation, provided
36 that no more than twenty separate violations are issued on a per bag or
37 per container basis during any twenty-four hour period. Before issuing
38 any such notices of violation to a persistent violator on a per bag or
39 per container basis, the commissioner shall give such violator a reason-
40 able opportunity to correct the condition constituting the violation.
41 d. There shall be a rebuttable presumption that the number of dwelling
42 units designated on a notice of violation issued pursuant to this
43 section reflects the number of dwelling units in the residential build-
44 ing for which the notice of violation was issued. Where such presumption
45 is rebutted, the number of dwelling units on such notice of violation
46 shall be deemed modified accordingly, and in no event shall such notice
47 of violation be dismissed solely on the ground that the number of dwell-
48 ing units on the original notice of violation was incorrectly stated.
49 e. The commissioner or the commissioner's designee shall establish a
50 recycling training program for owners or employees of residential build-
51 ings of nine or more dwelling units for which at least three notices of
52 violation for failing to properly source separate designated recyclable
53 material have been issued within a twelve-month period and which the
54 commissioner determines to be in need of recycling training. Such
55 training program shall require the building owner, or an employee who is
56 primarily responsible for waste disposal or janitorial services for any
S. 8578 1266
1 such building, to attend a training program established by the commis-
2 sioner or the commissioner's designee designed to improve recycling
3 practices at such building and a fee may be imposed on any owner or
4 employee who participates in such training program. Such training
5 program may be held in any location designated by the commissioner or
6 the commissioner's designee, including, in order to facilitate tenant
7 participation, at such building.
8 2. Any person who violates subdivision seven of section 16-308 of this
9 title or any rules promulgated pursuant thereto shall be liable for a
10 civil penalty in the amount of two hundred fifty dollars for the first
11 violation, five hundred dollars for the second violation committed with-
12 in a twelve-month period, and one thousand dollars for the third and
13 each subsequent violation committed within a twelve-month period.
14 3. Any owner or other person responsible for a publicly accessible
15 textile drop-off bin who violates subdivision two of section 16-310.1 of
16 this title shall be liable as follows:
17 a. In the event that a publicly accessible textile drop-off bin is
18 impermissibly placed on city property, or property maintained by the
19 city, or on any public sidewalk or roadway, the owner of the publicly
20 accessible textile drop-off bin, if the address of such owner is ascer-
21 tainable, shall be notified by the department by certified mail, return
22 receipt requested, that such publicly accessible textile drop-off bin
23 must be removed within thirty days from the mailing of such notice. A
24 copy of such notice, regardless of whether the address of such owner or
25 other responsible person is ascertainable, shall also be affixed to the
26 publicly accessible textile drop-off bin. This notice shall state that
27 if the address of the owner or other responsible person is not ascer-
28 tainable and notice is not mailed by the department, such publicly
29 accessible textile drop-off bin shall be removed within thirty days from
30 the affixing of such notice. This notice shall also state that the fail-
31 ure to remove the publicly accessible textile drop-off bin within the
32 designated time period will result in the removal and disposal of the
33 publicly accessible textile drop-off bin by the department. This notice
34 shall also state that if the owner or other responsible person objects
35 to removal on the grounds that the publicly accessible textile drop-off
36 bin is not on city property, or property maintained by the city, or on
37 any public sidewalk or roadway, such owner or other responsible person
38 may send written objection to the department at the address indicated on
39 the notice within twenty days from the mailing of such notice or, if the
40 address of such owner or other responsible person is not ascertainable
41 and notice is not mailed by the department, within twenty days from the
42 affixing of such notice, with proof that the publicly accessible textile
43 drop-off bin is not on city property, or property maintained by the
44 city, or on any public sidewalk or roadway. Proof that the publicly
45 accessible textile drop-off bin is not on city property, or property
46 maintained by the city, or on any public sidewalk or roadway shall
47 include, but not be limited to, a survey of the property prepared by a
48 licensed surveyor that is certified by the record owner of such proper-
49 ty.
50 b. Any owner or other person responsible for an impermissibly placed
51 publicly accessible textile drop-off bin that fails to respond within
52 twenty days of receipt of such notice under paragraph a of this subdivi-
53 sion or otherwise fails to establish that the publicly accessible
54 textile drop-off bin is not on city property, or property maintained by
55 the city, or on any public sidewalk or roadway pursuant to paragraph a
56 of this subdivision, shall be liable for a civil penalty in the amount
S. 8578 1267
1 of one hundred dollars, recoverable in a proceeding returnable before
2 the environmental control board.
3 4. Any notice of violation or notice of hearing for a violation issued
4 to the owner, net lessee or person in charge of a premises or to a food
5 service establishment, mobile food commissary, store, or manufacturer,
6 as those terms are defined in section 16-329 of the code of the preced-
7 ing municipality, at which or by whom a violation of this chapter or any
8 rule promulgated pursuant thereto is alleged to have occurred or to have
9 been committed shall be served by delivering a copy of the notice there-
10 of at the address maintained in the records of the department of housing
11 preservation and development, the department of finance, or the depart-
12 ment of health and mental hygiene. The notice of violation or notice of
13 hearing may be served by regular mail or in accordance with section one
14 thousand forty-nine-a of the charter of the preceding municipality or,
15 if such notice is served by an agency other than the department, in
16 accordance with the rules of such agency.
17 5. a. Any covered establishment that violates section 16-306.1 of this
18 title or rules of the department, the department of health and mental
19 hygiene, or the department of consumer and worker protection promulgated
20 pursuant thereto shall be liable for a civil penalty recoverable in a
21 civil action brought in the name of the commissioner or the commissioner
22 of health and mental hygiene, or the commissioner of consumer and worker
23 protection, or in a proceeding returnable before any tribunal estab-
24 lished within the office of administrative trials and hearings in the
25 amount of two hundred fifty dollars for the first violation, five
26 hundred dollars for the second violation committed on a different day
27 within a period of twelve months, and one thousand dollars for the third
28 and each subsequent violation committed on different days within a peri-
29 od of twelve months, except that the department, the department of
30 health and mental hygiene, and the department of consumer and worker
31 protection shall not issue a notice of violation, but shall issue a
32 warning, for any violation by a designated covered establishment that
33 occurs during the first twelve months after the commissioner designates
34 such covered establishment pursuant to subdivision two of section
35 16-306.1 of this title.
36 b. Any transfer station that violates section 16-306.1 of this title
37 or rules of the department promulgated pursuant thereto shall be liable
38 for a civil penalty recoverable in a civil action brought in the name of
39 the commissioner or in a proceeding returnable before the environmental
40 control board in the amount of two hundred fifty dollars for the first
41 violation, five hundred dollars for the second violation committed on a
42 different day within a period of twelve months, and one thousand dollars
43 for the third and each subsequent violation committed on different days
44 within a period of twelve months, except that the department shall not
45 issue a notice of violation, but shall issue a warning, for any
46 violation by a designated covered establishment that occurs during the
47 first twelve months after the commissioner designates such covered
48 establishment pursuant to subdivision two of section 16-306.1 of this
49 title.
50 c. Any private carter that violates section 16-306.1 of this title or
51 rules of the business integrity commission promulgated pursuant thereto
52 shall be liable for a civil penalty recoverable in a civil action
53 brought in the name of the chair of the business integrity commission,
54 or in a proceeding brought by the chair of the business integrity
55 commission held in accordance with title sixteen-A of the code of the
56 preceding municipality, except that the chair of the business integrity
S. 8578 1268
1 commission shall not issue a notice of violation, but shall issue a
2 warning, for any violation by a designated covered establishment that
3 occurs during the first twelve months after the commissioner designates
4 such covered establishment pursuant to subdivision two of section
5 16-306.1 of this title.
6 6. Any person who violates section 16-329 of the code of the preceding
7 municipality or any rule promulgated pursuant thereto shall be liable
8 for a civil penalty recoverable in a civil action brought in the name of
9 the commissioner, the commissioner of health and mental hygiene or the
10 commissioner of consumer and worker protection, or in a proceeding
11 before the environmental control board, or any tribunal established
12 within the office of administrative trials and hearings in the amount of
13 one hundred fifty dollars for the first violation, two hundred fifty
14 dollars for the second violation committed on a different day within a
15 period of twelve months, and five hundred dollars for the third and each
16 subsequent violation committed on different days within a period of
17 twelve months.
18 Title 17 - Health
19 § 17-101 Definitions. As used in this title:
20 1. "Board" shall mean the board of health.
21 2. "Commissioner" means the commissioner of the department of health.
22 3. "Department" means the department of health.
23 4. "Health code" means the health code of the city of Staten Island.
24 § 17-102 Department; commissioner. 1. There shall be a department of
25 health, the head of which shall be the commissioner of health.
26 2. The commissioner, with concurrence of the board of health, may
27 adopt a seal for use in the authentication of the orders, proceedings
28 and commissions of the department.
29 3. The commissioner shall be appointed by the mayor and shall be a
30 doctor of medicine and a holder of a degree of master of public health
31 or a degree of master of business administration with concentration in
32 the health field or a degree of master of public administration with
33 concentration in the health field or the equivalent of any one of the
34 specified foregoing degrees received from a college or university and
35 have had at least five years' experience either in public health or
36 administration or in college or university public health teaching or
37 both.
38 § 17-103 Board of health. 1. There shall be in the department a board
39 of health, the chair of which shall be the commissioner. In addition to
40 the chairperson the board shall also consist of four members, two of
41 whom shall be doctors of medicine who shall each have had not less than
42 ten years' experience in any or all of the following: clinical medicine,
43 public health administration or college or university public health
44 teaching. The other two members need not be physicians.
45 2. The four members other than the chairperson shall serve without
46 compensation and shall be appointed by the mayor, each for a term of
47 eight years. In the case of a vacancy, the mayor shall appoint a member
48 to serve for the unexpired term.
49 3. The commissioner shall designate employees of the department as
50 necessary to service the board including an employee designated by the
51 commissioner to serve as the secretary of the board.
52 4. A member of the board of health, other than the chair, may be
53 removed by the mayor on proof of official misconduct or of negligence in
54 official duties or of conduct in any manner connected with his or her
S. 8578 1269
1 official duties, or of mental or physical inability to perform his or
2 her duties. Prior to removal of a board member for any of the reasons
3 stated above, the member shall be given a copy of the charges against
4 him or her and shall be entitled to a hearing before the mayor and to
5 assistance of counsel at such hearing.
6 § 17-104 Powers and duties of commissioner. 1. The commissioner
7 shall:
8 (a) have all the powers and duties vested in him or her or in the
9 department by this title, except for those vested by law in the board of
10 health or the chief medical examiner.
11 (b) prepare and submit to appropriate governmental authorities short
12 term, intermediate and long range plans and programs designed to meet
13 the needs of the city including the needs for construction and operation
14 of medical and health care facilities, except that the commissioner may
15 not construct or operate a new medical facility until the health systems
16 agency having jurisdiction over that institution has received a copy of
17 the application filed with the commissioner, in the case of private
18 institutions, or all information in form and detail as the health
19 systems agency shall require, in the case of institutions of the city of
20 Staten Island, and it shall have given the commissioner a written deci-
21 sion of approval or disapproval; and
22 (c) not be considered bound by the decision given as described above,
23 but he or she shall not approve any construction, addition or modifica-
24 tion contrary to the health systems agency without first holding a
25 public hearing.
26 2. In reaching decisions pursuant to this section, the commissioner
27 and the health systems agency shall consider:
28 (a) the public need for the existence of the new institution or the
29 construction, addition or modification of an existing institution at the
30 time and place and under the circumstances proposed;
31 (b) the character, competence and standing in the community of the
32 owners and licensees, in the case of private institutions;
33 (c) the financial resources of the institution and its sources of
34 future revenue;
35 (d) the fitness and adequacy of the premises, and equipment, person-
36 nel and standards of care to be used in the operation of the proposed
37 institution; and
38 (e) such other matters as each of them considers pertinent.
39 3. The commissioner may compel the attendance of witnesses in any
40 matter or proceeding before the commissioner.
41 4. The commissioner may assess any penalty prescribed for a violation
42 of or a failure to comply with any provision of this title or any other
43 lawful notice, order or regulation pursuant thereto, which penalty may
44 be assessed, although not to exceed one thousand dollars, after a hear-
45 ing or an opportunity to be heard.
46 § 17-105 Functions, powers and duties of the department. Except as
47 otherwise provided by law, the department shall have jurisdiction to
48 regulate all matters affecting health in the city and to perform all
49 those functions and operations performed by the city that relate to the
50 health of the people of the city including, but not limited to, the
51 following:
52 1. enforce all provisions of law applicable in the area under the
53 jurisdiction of the department for the preservation of human life; the
54 care, promotion and protection of health and to the necessary health
55 supervision of the purity and wholesomeness of the water supply. The
56 department shall also maintain and operate office health centers, health
S. 8578 1270
1 stations or other facilities which may be required for the preservation
2 of health and the care of the sick;
3 2. exercise its functions, powers and duties in the area extending
4 over the city, the waters adjacent thereto, within the jurisdiction of
5 the city and within the quarantine limits established by law;
6 3. receive and expend funds made available for public health
7 purposes;
8 4. supervise and control the registration of births, fetal deaths and
9 deaths;
10 5. engage in and promote health research for the purpose of improving
11 the quality of medical and health care. In conducting such research the
12 department may conduct medical audits, receive reports on forms
13 prescribed by the department and any information received by the depart-
14 ment with regard to such research shall be kept strictly confidential,
15 used solely for medical or scientific research purposes or for the
16 improvement of the quality of medical care;
17 6. supervise the reporting and control of communicable and chronic
18 diseases and conditions hazardous to life and health; and exercise
19 control over and supervise the abatement of nuisances affecting the
20 public health;
21 7. produce, standardize and distribute certain diagnostic, preventa-
22 tive and therapeutic products and conduct laboratory examinations for
23 the diagnosis, prevention and control of disease;
24 8. promote or provide education in the prevention and control of
25 disease;
26 9. promote or provide diagnostic and therapeutic services for mater-
27 nity and child health, family planning, communicable disease, medical
28 rehabilitation, narcotics addiction and other diseases and conditions
29 affecting public health;
30 10. promote and provide medical and health services for school chil-
31 dren and the ambulant sick and needy persons of the city;
32 11. promote and provide medical and health services for the incarcer-
33 ated individuals of prisons maintained and operated by the city;
34 12. maintain and operate public health centers and clinics as shall
35 be established in the department;
36 13. prior to the sale, closing, abandonment or transfer of a city
37 hospital, hold a public hearing regarding such proposal; and publish
38 notice of such hearing in such daily newspaper published in the city as
39 selected by the commissioner, such publication to take place not less
40 than ten days nor more than thirty days prior to the date fixed for the
41 hearing;
42 14. analyze and monitor hospitals, clinics, nursing homes and homes
43 for the aged, and analyze, evaluate, supervise and regulate clinical
44 laboratories, blood banks and related facilities providing medical
45 services;
46 15. supervise and regulate the public health aspects of water supply,
47 sewage disposal and water pollution;
48 16. supervise and regulate the public health aspects of the
49 production, processing and distribution of milk, cream and milk
50 products;
51 17. supervise and regulate the public health aspects of the food and
52 drug supply of the city and other businesses or activities affecting
53 public health in the city;
54 18. supervise and regulate the public health aspects of ionizing
55 radiation, handling and disposal of radioactive wastes and the activ-
S. 8578 1271
1 ities within the city affecting radioactive materials, excluding special
2 nuclear materials in quantities sufficient to form a critical mass; and
3 19. supervise and regulate the removal, transportation and disposal of
4 human remains.
5 § 17-106 Chief medical examiner. 1. There shall be in the department
6 an independent office of chief medical examiner, the head of which shall
7 be the chief medical examiner.
8 2. The chief medical examiner shall be appointed by the mayor from the
9 classified civil service and shall be a doctor of medicine and a skilled
10 pathologist and microscopist. The mayor may remove the chief medical
11 examiner upon filing in the office of the personnel director and serving
12 upon the examiner his or her reasons therefor and allowing the officer
13 an opportunity of making a public explanation.
14 3. The commissioner, with respect to the office of chief medical exam-
15 iner, shall exercise certain powers and duties pursuant to this section,
16 but he or she shall not interfere with performance by the chief medical
17 examiner or his or her office.
18 4. The chief medical examiner may appoint and remove such deputy chief
19 medical examiners, assistant medical examiners, junior medical examin-
20 ers, medical investigators, scientific experts and other officers or
21 employees as may be provided for in the budget.
22 All assistant, associate, deputy and junior medical examiners shall
23 possess the same basic qualifications as the chief medical examiner. The
24 medical investigators shall be physicians duly licensed to practice
25 medicine in the state of New York.
26 5. The office of chief medical examiner shall be kept open every day
27 in the year, including Sundays and all legal holidays, and a clerk shall
28 be in attendance at all times during the day and night.
29 6. The chief and all deputy chief, associate, assistant and junior
30 medical examiners and all investigators may administer oaths, take affi-
31 davits, proofs and examinations.
32 7. The chief medical examiner shall have such powers and duties as may
33 be provided by law with respect to bodies of persons dying from criminal
34 violence, casualty, suicide, suddenly when in apparent good health, when
35 unattended by a physician, in a correctional facility or in any suspi-
36 cious or unusual manner or where an application is made for a permit for
37 cremation of the body.
38 8. The chief medical examiner shall keep full and complete records. He
39 or she shall promptly deliver, to the district attorney, copies of all
40 records relating to every death in which, in the opinion of the chief
41 medical examiner, there is any indication of criminality. Such records
42 shall not be open to public inspection.
43 § 17-107 Health code. 1. The health code which is in force in the
44 preceding municipality on the date and time which this title takes
45 effect and all existing provisions of the health code, including penal-
46 ties affixed for violations, shall continue to be binding and in full
47 force, except as amended from time to time.
48 2. The board of health may add to, alter, amend or replace any part of
49 the health code, and may provide for the enforcement of the health code
50 or any orders made by the commissioner. The board of health shall
51 prescribe in the health code all matters and subjects to which the power
52 and authority of the department extends.
53 3. Any violation of the health code shall be treated and punished as a
54 misdemeanor.
55 § 17-108 Temporary hospitals during epidemic. The board of health,
56 during prevalence of an epidemic or in the presence of great and immi-
S. 8578 1272
1 nent peril to the public health, may take possession of any buildings in
2 the city for temporary hospitals and shall pay a just compensation for
3 any private property so taken. Such temporary hospitals shall be under
4 the control of the commissioner.
5 § 17-109 Permits. The board of health may grant, suspend or revoke
6 permits for businesses and other matters in respect to any subject dealt
7 with in the health code or regulated by the department and the board may
8 prescribe reasonable fees for the issuance of said permits.
9 § 17-110 Declaration of imminent peril. In the presence of great and
10 imminent peril to public health, the board of health shall take such
11 measures and order the department of health to do such acts beyond those
12 duly provided for, in the interests of preservation of the public
13 health. No expenditure shall be incurred in the exercise of such
14 extraordinary power, unless provision is made therefor in the budget or
15 unless such expenditures are financed pursuant to section 107.00 or
16 section 29.00 of the local finance law. Such peril shall exist when and
17 for such period of time as the board of health and the mayor declare.
18 § 17-111 Right of entry. The commissioner and his or her officers may,
19 pursuant to a search warrant when required by law, enter, examine and
20 inspect all vessels, premises, grounds, structures, buildings and under-
21 ground passages for compliance with the provisions of law enforced by
22 the department.
23 § 17-112 Acceptance of private funds. No grants, gifts, devises,
24 legacies or bequests made to the city shall be accepted except with the
25 approval of the commissioner.
26 Title 18 - Parks
27 § 18-101 Definitions. As used in this title:
28 1. "Commissioner" shall mean the commissioner of the department of
29 parks, recreation and cultural affairs.
30 2. "Department" shall mean the department of parks, recreation and
31 cultural affairs.
32 § 18-102 Commissioner. The head of the department of parks, recre-
33 ation and cultural affairs shall be the commissioner.
34 § 18-103 Powers and duties of commissioner. Except with respect to the
35 functions of the board of education, the commissioner shall have the
36 power and it shall be his or her duty:
37 1. With respect to parks:
38 (a) to manage and care for all parks, squares and public places, the
39 sidewalks immediately adjoining the same and all playgrounds, playground
40 fixtures and other recreation properties, except those within the juris-
41 diction of the board of education;
42 (b) to prepare for the establishment and improvement of a park system
43 for the city with regard to proper connections with the systems of
44 federal, state and county parks and recreation areas in the city and
45 counties adjacent to the city; and
46 (c) to maintain the beauty and utility of all parks, squares, public
47 places, playgrounds and other recreational properties.
48 2. With respect to recreation:
49 (a) to plan, acquire, construct, improve and merge facilities for the
50 recreation of the public;
51 (b) to plan, develop, conduct and supervise recreation programs for
52 the public;
53 (c) to review and coordinate recreation activities and programs and
54 facilities conducted by agencies of the city and the budget estimates
S. 8578 1273
1 submitted by such other agencies for such activities and make such
2 recommendations to the mayor; and
3 (d) to undertake, subject to the approval of the mayor, and to enter
4 into arrangements with other agencies of the city, state or federal
5 government and to recommend to the mayor such arrangements with private,
6 voluntary or commercial agencies, subject to the law, for the perform-
7 ance of any recreation functions conferred upon the department.
8 3. With respect to cultural affairs:
9 (a) to plan, acquire, design, construct, improve and manage facilities
10 for the conduct of cultural activities by the city and, to the extent
11 possible, to use the resources of other agencies to perform design and
12 planning functions subject to the approval of such agencies;
13 (b) to plan, develop, conduct and supervise such cultural activities;
14 and
15 (c) to foster coordination among city, state and federal agencies,
16 other organizations and institutions with respect to cultural activities
17 in the city.
18 § 18-201 Art commission. There shall be an art commission. All members
19 of the commission shall serve without compensation. The mayor shall
20 appoint and fill vacancies. The chairperson shall be the commissioner of
21 parks, recreation and youth services. The commissioner shall accede to
22 the rights, powers and duties within the city of Staten Island of the
23 preceding arts commission of the city of New York.
24 Title 19 - Transportation
25 § 19-102 Commissioner. There shall be a department of transportation
26 the head of which shall be the commissioner of transportation.
27 § 19-103 Powers and duties of commissioner. The commissioner shall
28 have control over and be responsible for all the functions and oper-
29 ations of the city relating to transportation including, without limita-
30 tion, parking and traffic operations, highway operations, ferries and
31 related facilities and mass transportation facilities.
32 § 19-104 Parking and traffic operations. 1. The commissioner shall
33 make rules and regulations for the conduct of vehicular and pedestrian
34 traffic in the streets, squares, avenues, highways and parkways of the
35 city. Violation of such rules shall be a traffic infraction triable by a
36 judge in criminal court and also may be adjudicated pursuant to this
37 title or pursuant to articles two-A and two-B of the vehicle and traffic
38 law.
39 2. In an emergency, the police commissioner may suspend for a period
40 of forty-eight hours the provision of any rule or procedure and shall
41 immediately notify the commissioner of such suspension.
42 3. In order to expedite the movement of traffic or to safeguard pedes-
43 trians or property, a police officer may order a person to disregard any
44 traffic signal or any regulation.
45 4. The commissioner shall establish, determine, control, install and
46 maintain the type, design, size and location of any and all signs,
47 signals and other devices indicating street names and other public plac-
48 es, and for guiding, directing or otherwise regulating vehicular and
49 pedestrian traffic.
50 5. The commissioner shall make recommendations to the mayor as to the
51 design and location of lighting devices, poles and fixtures, including
52 intensity of illumination of streets and highways.
53 6. The commissioner shall prepare and submit to the mayor a proposed,
54 comprehensive city traffic plan and the commissioner shall collect and
S. 8578 1274
1 compile traffic data, prepare engineering studies and surveys in regard
2 to vehicular and pedestrian traffic and submit detailed reports to the
3 mayor regarding such data. The commissioner shall also have authority
4 to: (a) submit to the mayor from time to time recommendations and
5 proposals for consideration by the mayor and other city agencies in
6 regard to methods of ameliorating adverse traffic conditions which
7 cannot be remedied by traffic regulations; (b) amend existing regu-
8 lations and rules of any city agency which may affect traffic conditions
9 in the city; (c) propose legislation which may be necessary to imple-
10 ment such proposals; and (d) recommend improvements of existing
11 streets, locations of new streets, highways, parking garages, public
12 parking areas, offstreet loading facilities and other related matters.
13 7. The commissioner shall coordinate efforts of and consider reports
14 of public and private agencies and civic groups with regard to their
15 suggestions on traffic control in the city. The commissioner shall
16 prepare analyses of traffic accidents with a view to determining their
17 causes and means for prevention and shall carry on educational activ-
18 ities for the purpose of promoting traffic safety in the city.
19 8. The commissioner shall establish parking meter zones for on-street
20 and off-street parking; determine type, size and location of parking
21 meters; and fix the fees for parking in public parking areas, except
22 that parking meter zones for both on-street and off-street parking shall
23 not apply to vehicles operated by disabled persons displaying special
24 vehicle identification cards issued by the commissioner.
25 9. The commissioner shall collect fees, fines and penalties for
26 violation of parking rules and shall keep all monies in a special fund
27 to be known as the "traffic improvement fund". The revenues in this
28 special fund shall be used, upon authorization by the council for
29 payment of all costs of purchase, rental, engineering, installation,
30 operation, maintenance and repair of parking meters, the collection of
31 coins, the enforcement of rules pertaining to parking, the collection of
32 fines and penalties for rules violations or the payment of interest on,
33 amortization of, or payment of any indebtedness contracted by the city
34 in connection with the installation and operation of parking meters. Any
35 revenues remaining after such payments are made shall be used for capi-
36 tal and other expenditures to ameliorate traffic conditions of the city.
37 10. The commissioner, in conjunction with the commissioner of finance,
38 may enter into agreements with not more than two financing agencies to
39 provide for the acceptance by the city of credit cards as an alternate
40 means of payment of fines or fees incurred due to violation of any law,
41 rule or regulation with regard to parking of a vehicle.
42 11. The commissioner shall have the power, concurrently with the
43 police department, to enforce laws, rules and regulations with regard to
44 all movement and conduct of vehicular and pedestrian traffic. The
45 commissioner may employ, hire and retain officers or employees for the
46 purpose of enforcing laws, rules and regulations with regard to regulat-
47 ing and controlling vehicular parking and movement of pedestrian and
48 vehicular traffic. Such officers or agents are authorized to issue and
49 serve tickets, summonses and complaints for traffic infractions.
50 12. The commissioner shall issue, upon application, a special vehicle
51 identification permit to a Staten Island resident certified by the
52 department of health as suffering from a permanent disability seriously
53 impairing mobility, non-residents similarly certified may obtain vehicle
54 identification for purposes of transportation to a school or place of
55 employment in city. All applicants for such permit must possess an oper-
56 ator's or chauffeur's license with any restrictions indicating special
S. 8578 1275
1 restrictions, devices or equipment required for operation of the vehi-
2 cle.
3 § 19-105 Highway operations. The commissioner shall have charge and
4 control of the following functions relating to the construction, mainte-
5 nance and repair of public roads, streets, highways, parkways, bridges
6 and tunnels: (i) regulating, grading, curbing, flagging and guttering of
7 streets, including marginal streets, and the laying of crosswalks; (ii)
8 designing, constructing, resurfacing and repairing all public roads,
9 streets, highways and parkways; (iii) the relaying of all pavement
10 removed for any cause; (iv) the filling of sunken lots, fencing vacant
11 lots, digging down of lots and the licensing of vaults under sidewalks;
12 (v) regulation of the use and transmission of gas, electricity, pneumat-
13 ic power and steam for all purposes in, upon, across, over and under all
14 streets, roads, avenues, parks and all public places; regulation of the
15 construction of electric mains, conduits, conductors and subways in any
16 streets, roads, avenues, parks or public places and the issuance of
17 permits to builders and others to use or open a street; and to open the
18 same for the purpose of carrying on the business of transmitting,
19 conducting, using and selling gas, electricity or steam or for the
20 service of pneumatic tubes, provided, however, this section is not to be
21 seen as to grant permission to open or use the streets except by persons
22 or corporations otherwise duly authorized to carry on such business
23 specified above; (vi) construction, alteration and maintenance of all
24 bridges and tunnels. The commissioner shall issue a report to mayor,
25 city council and city residents about the condition of the bridges and
26 tunnels operated and maintained by the department with such report due
27 on March first, as of December thirty-first of preceding calendar year.
28 The report shall include a description of all capital and revenue budget
29 funds appropriated for rehabilitation and maintenance of bridges and
30 tunnels as well as the program developed by the commissioner for the
31 maintenance of all bridges and tunnels in the city of Staten Island;
32 (vii) removal of encroachments on public roads, streets, highways and
33 parkways, with the exception of weed removal, grass cutting and clipping
34 and other horticultural operations which are to be executed by the parks
35 department, and de-icing and snow removal operations are to be carried
36 out by the department of sanitation; (viii) clearing, grubbing, grading,
37 filling or excavating of vacant lots and other land areas; (ix) instal-
38 lation of metal chain link fences or barriers on overpasses, footbridg-
39 es, bridges or walkways; and (x) designing, constructing and maintaining
40 a lighting system for streets, highways, parks and public places in the
41 city.
42 § 19-106 Ferries and related facilities. The commissioner shall main-
43 tain and operate the ferries of the city. The commissioner shall be
44 responsible for designing, constructing, maintaining or controlling all
45 ferry boats, ferry houses, ferry terminals and equipment; all wharf
46 property and roads or streets adjacent to such wharves, ferry houses or
47 terminals, including parking sites and related facilities. The commis-
48 sioner shall have charge and control of all marine operations within the
49 city and the power to regulate public and private ferry operations orig-
50 inating or terminating in the city. The commissioner shall establish
51 tours of ferry facilities and their related operations as well as tours
52 of the New York harbor at fees to be established by the commissioner and
53 may publicize and advertise the same. The commissioner shall construct,
54 operate and maintain marinas and public boat launching ramps and related
55 ferry facilities and collect fees for the use of such facilities. Fees
S. 8578 1276
1 collected are to be deposited in a special fund for continued mainte-
2 nance, operation or reconstruction of public marine facilities.
3 § 19-107 Mass transportation facilities. The commissioner shall
4 prepare or review plans and recommendations for the nature,
5 construction, location, operation and financing of roads, highways,
6 bridges, tunnels, railroads or other facilities for mass transportation
7 for use, in whole or in part, within the city, whether or not the funds
8 provided for such facilities are derived from the city treasury. The
9 commissioner shall develop and coordinate planning and programming for
10 all forms of mass transportation within Staten Island, whether or not
11 transportation is within the sole operating jurisdiction of Staten
12 Island. The commissioner shall make recommendations to the mayor, the
13 Metropolitan Transportation Authority or any of its subsidiaries, the
14 Port Authority of New York and New Jersey and other city, state and
15 federal agencies concerning the mass transit needs of the city of Staten
16 Island.
17 § 19-108 Duties and obligations of a property owner with regard to
18 sidewalks, fencing or filling of vacant lots or cutting down raised
19 lots. The owner of any property, at his or her own cost shall:
20 1. Install, reconstruct, repave and repair the sidewalk in front of or
21 abutting such property, to include intersection quadrant in the case of
22 corner property; and
23 2. Fence any vacant lot comprising all or part of his or her property
24 and fill any sunken lots on such property or cut down any raised lot or
25 lots comprising all or part of the property whenever the transportation
26 department shall so order. In the event a property owner fails to comply
27 with such order or the provisions of this section, the transportation
28 department may have the work performed at the expense of the owner.
29 § 19-109 Right of entry. The commissioner may enter public or private
30 property for the purpose of making surveys, borings or other investi-
31 gations necessary for the performance of department duties. Refusal to
32 permit such entry shall be triable by the judge in a criminal court of
33 Staten Island.
34 Title 20 - Consumer Affairs
35 § 20-102 Definitions. Wherever used in this title:
36 1. "Commissioner" shall mean the commissioner of consumer and worker
37 protection.
38 2. "Department" shall mean the department of consumer and worker
39 protection.
40 3. "License" shall mean an authorization by the department of consumer
41 and worker protection to carry on various activities within its juris-
42 diction, which may take the form of a license, permit, registration,
43 certification or such other form as is designated under law, regulation
44 or rule.
45 4. "Organization" shall mean a business entity, including but not
46 limited to a corporation, trust, estate, partnership, cooperative, asso-
47 ciation, firm, club or society.
48 5. "Person" shall mean a natural person or an organization.
49 6. "Trade name" shall mean that name under which an organization or
50 person solicits, engages in, conducts or transacts a business or activ-
51 ity.
52 § 20-103 Powers of the commissioner. 1. The commissioner shall plan,
53 make recommendations, conduct research and develop programs for consumer
54 and worker education and protection, facilitate the exchange of informa-
S. 8578 1277
1 tion in consultation with agencies, federal and state officials, commer-
2 cial interests, private groups and coordinate the consumer and worker
3 protection activities of other city agencies.
4 2. The commissioner shall enforce all laws in relations to weights and
5 measures.
6 3. The commissioner shall have control of granting, issuing, trans-
7 ferring, renewing, revoking, suspending and cancelling of all licenses
8 and permits, except in the cases with respect to which any of said
9 powers are conferred on other persons or agency by laws, and shall
10 collect all fees for licenses.
11 All licenses or permits in effect on the date of establishment shall
12 be continued until their date of expiration or sixty days, whichever
13 shall be longer. Any license or permit expiring within a thirty-day
14 period prior to the date of establishment shall be continued for a peri-
15 od of sixty days.
16 A licensee or permittee must notify and register with the department
17 if the license or permit is to extend beyond sixty days of the date of
18 establishment.
19 4. The commissioner shall enforce all laws relating to advertising and
20 offering for sale and the sale of all commodities, goods, wares and
21 services; in addition he or she shall receive complaints and initiate
22 his or her own investigations and take appropriate action, including
23 referral to a federal or state agency.
24 5. The commissioner shall be authorized to hold public and private
25 hearings, administer oaths, take testimony, serve subpoenas, receive
26 evidence, and to receive, administer, pay over and distribute monies
27 collected in and as a result of actions brought for violations of laws
28 relating to deceptive or unconscionable trade practices.
29 Title 21 - Human Services
30 § 21-102 Commissioner. There shall be a department of human services
31 the head of which shall be the commissioner of human services.
32 § 21-103 Powers and duties. The commissioner shall have the powers
33 and perform the duties of a commissioner of human services under the
34 social services law, provided that no form of outdoor relief shall be
35 dispensed by the city except under the provisions of a state or local
36 law which shall specifically provide the method, manner and conditions
37 of dispensing the same.
38 § 21-104 Public institutions under the commissioner. The commissioner
39 shall control, maintain and operate such institutions as are now or may
40 be put under his or her control.
41 § 21-202 Division for the aging. There shall be within the department
42 a division for the aging.
43 § 21-203 Power and duties. It shall be the power and duty of the divi-
44 sion for the aging:
45 1. to stimulate community interest in the problems of the aging;
46 2. to promote public awareness of resources available for the aging,
47 and to refer the public to appropriate departments and agencies of the
48 city, state and federal governments for advice, assistance and available
49 services in connection with particular problems;
50 3. to cooperate with and assist local neighborhoods in the develop-
51 ment of programs and the establishment of local offices;
52 4. to disburse available city, state and federal funds to programs
53 throughout the city and, when practical, coordinate such funds with
54 available funding from the private sector;
S. 8578 1278
1 5. to promulgate rules and regulations for the operation of facili-
2 ties, services and programs under its jurisdiction; and
3 6. to maintain, operate and control such programs and facilities, as
4 may be necessary or required for the proper administration of the divi-
5 sion.
6 § 21-301. Division for youth services. 1. There shall be within the
7 department a division for youth services.
8 2. With respect to youth services the commissioner shall have all the
9 powers and duties of a youth bureau as such bureau is described in arti-
10 cle nineteen-A of the executive law and shall in addition have the
11 following powers and duties:
12 (a) to disburse available city, state and federal, and private-sector,
13 when applicable, funds to programs for youth throughout the city;
14 (b) to maintain, operate and control such youth programs and facili-
15 ties as necessary; and
16 (c) to promulgate rules and regulations for the operation of facili-
17 ties, services and programs within the department's jurisdiction.
18 § 21-402 Division of homeless services. There shall be within the
19 department a division of homeless services.
20 § 21-403 Powers and duties; director. 1. The head of the division of
21 homeless services shall be the director. The director shall have the
22 powers and perform the duties of a commissioner of human services under
23 the social services law for the purpose of fulfilling his or her respon-
24 sibilities.
25 2. The director, in the performance of his or her functions, shall:
26 (a) be responsible for transitional housing and services provided by
27 the city for eligible homeless families and individuals. The director
28 shall encourage the participation of and receive proposals from the
29 public and private sectors for the development of transitional housing
30 and services for homeless families and individuals. In performing such
31 duties, the director may develop and issue requests for such proposals
32 and evaluate responses thereto, negotiate, award, and administer
33 contracts, loans or other agreements, and obtain all necessary
34 approvals. For-profit and not-for-profit entities shall be eligible to
35 submit proposals, bid on contracts and other agreements, and apply for
36 grants and loans;
37 (b) plan and implement a redesign and restructuring of the system for
38 the provision of transitional housing and services for homeless families
39 and individuals;
40 (c) in consultation with other appropriate governmental agencies, plan
41 housing for homeless families and individuals;
42 (d) develop programs designed to improve access of homeless families
43 and individuals to existing housing;
44 (e) maintain, repair and rehabilitate transitional housing owned,
45 operated or managed by the division;
46 (f) establish performance criteria, goals and objectives with respect
47 to contract providers and monitor and evaluate such performance; and
48 (g) in consultation with other appropriate governmental agencies,
49 develop and operate outreach programs to identify and assist families
50 and individuals who are homeless and living in public spaces and partic-
51 ipate in the development of prevention programs to assist families and
52 individuals who are in imminent danger of becoming homeless.
53 3. In addition, the director is authorized, in consultation with
54 appropriate agencies, to provide any other services he or she deems
55 necessary to implement and effectuate the provisions of this title.
S. 8578 1279
1 Title 22 - Economic Development
2 § 22-102 Commissioner. The head of the department shall be the commis-
3 sioner of economic development.
4 § 22-103 Powers and duties of the commissioner. The commissioner shall
5 have charge and control of and be responsible for all functions and
6 operations of the city relating to business and economic development,
7 the enhancement of economic development and financial opportunity for
8 minority and women owned business enterprises and ensuring equal employ-
9 ment opportunity by city contractors.
10 1. Such powers and functions shall include, without limitation, the
11 following:
12 (a) to establish business, industrial and commercial policies,
13 programs and projects which affect the business, industrial, commercial
14 or economic well-being, development, growth and expansion of the econom-
15 ic life of the city;
16 (b) to serve as liaison for the city with local development corpo-
17 rations, other not-for-profit corporations and all other entities
18 involved in economic development within the city;
19 (c) to study, organize, promote, coordinate and carry out within or
20 without the city, activities, projects and programs designed to encour-
21 age, stimulate and foster the well-being, development, growth and expan-
22 sion of business, industry and commerce in the city, and to enhance and
23 protect the economic life of the city;
24 (d) to assist, encourage and promote broadened employee ownership,
25 particularly through the use of employee stock ownership plans and
26 producer cooperatives, by conducting research, outreach and public
27 information programs regarding such ownership; by providing technical
28 assistance to employee groups exploring employee buyouts, and by ensur-
29 ing that firms applying for financial assistance from any entity
30 involved with economic development in the city shall be correctly
31 advised as to the potential advantages of forming an employee stock
32 ownership plan;
33 (e) to serve as a clearinghouse in connection with efforts to devise
34 solutions for problems affecting business, industry or commerce in the
35 city;
36 (f) to promote and encourage the location and development of markets
37 for city products;
38 (g) to promote and encourage the location and development of new busi-
39 ness and industry in the city, as well as the maintenance and expansion
40 of existing business and industry in the city;
41 (h) to promote, coordinate and implement activities, projects and
42 programs designed to attract foreign direct investment and promote over-
43 seas sales by firms in the city, and to otherwise encourage and stimu-
44 late the development of international business, commerce and trade in
45 the city;
46 (i) to administer and promote development of foreign trade zones with-
47 in the city;
48 (j) to study conditions affecting business, industry and commerce in
49 the city, and collect, disseminate and make studies with regard to the
50 information collected;
51 (k) to maintain a business information service in order to assist
52 business and industry in the city and to encourage businesses outside
53 the city to patronize the industrial establishments of the city;
S. 8578 1280
1 (l) to make recommendations to the mayor concerning steps deemed
2 advisable for the promotion and advancement of business prosperity in
3 the city;
4 (m) to publicize the economic advantages and other factors which make
5 the city a desirable location for businesses;
6 (n) to collect, compile and distribute information dealing with the
7 facilities, advantages and attractions of the city and historic and
8 scenic points and places of interest therein;
9 (o) to plan and conduct informational programs and publicity designed
10 to attract tourists, vacationers, visitors and other interested persons
11 to the city and its attractions;
12 (p) to encourage and cooperate with public and private agencies,
13 organizations and groups to publicize the business and commercial advan-
14 tages of the city;
15 (q) to cooperate with and assist any corporation, organization or
16 agency, public or private, the objectives of which include the advance-
17 ment of business, industry prosperity, expansion of existing business,
18 the creation of new job opportunities and provide support for any such
19 efforts or purposes; and
20 (r) to issue permits for the taking of motion pictures, and for the
21 taking of photographs and for the use or operation of television cameras
22 or other transmitting television equipment in, on or about city proper-
23 ty, streets, parks, piers, wharves, docks, bridges or tunnels.
24 2. The commissioner shall have the power and duty to exercise the
25 functions of the city relating to the development, redevelopment,
26 construction, operation, maintenance, management and regulation of
27 public markets, wharf property, waterfront property and airports within
28 the city, including, without limitation, the following:
29 (a) to have charge and control of the public markets of the city, to
30 fix fees for services, licenses and privileges in connection therewith,
31 to rent space and enter into leases therefor, and to regulate all facil-
32 ities in use as public markets for the public health, safety and
33 welfare;
34 (b) to have charge and control of wharf property and waterfront prop-
35 erty owned by the city and of the building, repairing, altering, main-
36 taining, strengthening, protecting, cleaning, dredging and deepening of
37 such property; provided that the commissioner may designate parcels of
38 waterfront property to be managed pursuant to this paragraph and leased
39 pursuant to paragraph (g) of this subdivision, by the commissioner of
40 general services and contracting, provided, any such designation to be
41 made in writing and with approval of the mayor;
42 (c) to have power to enforce with respect to public markets, water-
43 front property and any structures thereon under its jurisdiction, the
44 labor law and other such laws, rules or regulations as may govern any
45 such activities undertaken, as described in paragraph (b) of this subdi-
46 vision, and to establish and amend fees to be charged for the issuance
47 of such permits or certificates of completion;
48 (d) to have power to regulate waterfront property and any structures
49 on any waterfront property used in conjunction with commerce or naviga-
50 tion;
51 (e) to have power to regulate the use of marginal streets so that they
52 may be used to best advantage in connection with waterfront property and
53 to regulate by license or otherwise the transfer of goods and merchan-
54 dise upon, over or under such streets;
S. 8578 1281
1 (f) to lease, subject to council approval, any wharf property belong-
2 ing to the city for purposes of commerce or in furtherance of naviga-
3 tion;
4 (g) to grant temporary permits, terminable at will, for a period not
5 exceeding three years for purposes of commerce or navigation and not
6 exceeding one year for other purposes;
7 (h) to set aside by order any wharf property owned by the city, which
8 has not been leased, for general wharfage purposes or for a special kind
9 of commerce and to revoke or modify such order at any time;
10 (i) to regulate the charges for wharfage, cranage and dockage of all
11 vessels or floating structures using any wharf property, such rates to
12 be fixed by rules of the commissioner;
13 (j) to sell, subject to the approval of the council, buildings, struc-
14 tures and other improvements on market property to a person leasing such
15 property;
16 (k) to manage and promote the economic development of all airports,
17 airplane landing sites, seaplane bases and heliports owned by the city
18 and to lease such property, provided that no such lease may be author-
19 ized by the commissioner until a public hearing has been held and after
20 publication of notice in a newspaper of general circulation in the city
21 at least thirty days prior to such hearing;
22 (l) to have charge and control of the regulation for the health and
23 safety of the general public at all airports, airplane landing sites,
24 seaplane bases, heliports, marginal streets and parking facilities owned
25 by the city;
26 (m) to establish, amend and enforce rules for the proper care and use
27 of all public markets, wharf property, airports, heliports, airplane
28 landing sites or seaplane bases; the violation or failure to comply with
29 any such enforcement order shall be triable in criminal court and
30 punishable by not more than thirty days' imprisonment or a fine of not
31 less than one hundred dollars nor more than five thousand dollars, or
32 both;
33 (n) to have the exclusive power to regulate all privately owned
34 airports, airplane landing sites, seaplane bases and heliports, the
35 operations out of and into such bases, as well as the control of ground
36 effect craft;
37 (o) to promote and encourage the expansion and development of the city
38 as a center for intrastate, interstate and international freight trans-
39 portation; and
40 (p) to administer and enforce the provisions of the joining resolution
41 of the city in respect to any and all structures on waterfront property
42 used in connection with the furtherance of waterfront commerce on navi-
43 gation.
44 3. With respect to energy matters, the commissioner shall have the
45 power and duty:
46 (a) to plan, formulate, coordinate and advance energy policy for the
47 city;
48 (b) to analyze the energy and fuel needs of the city with respect to
49 all types of energy, to prepare intermediate and long-range plans, goals
50 and programs designed to meet such needs and to establish priorities
51 among them;
52 (c) to develop, implement and manage energy-related programs for
53 economic development and other purposes, including the administration of
54 the public utility service and to exercise all of the functions, powers
55 and duties of such public utility service; and
S. 8578 1282
1 (d) to perform such other responsibilities with respect to energy
2 matters, including responsibilities delegated elsewhere by the city
3 charter, as the mayor shall direct.
4 § 22-104 Waterfront plans. 1. No marginal street bulkhead line, pier-
5 head line or other similar line demarcating the extent of waterfront
6 development may be delineated, established or changed by the commission-
7 er except in accordance with the provisions of the city charter. The
8 commissioner may apply to the department of city planning to incorporate
9 such existing plans for the waterfront into the city map pursuant to the
10 procedure for review and approval of a change to the city map.
11 2. The commissioner may widen, open, construct, abandon or close any
12 marginal street or avenue included in such waterfront plans and shall
13 maintain the widened portion of such street and the widened portion of
14 such street shall not be a public street. Before acting under this
15 subdivision, the commissioner shall make a report to the department of
16 city planning including a map showing the proposed changes, but if the
17 department or, upon appeal of the action of the department, the appeals
18 board does not approve such proposal then it must be approved by the
19 council or the commissioner shall not proceed.
20 § 22-201 Division of economic and financial opportunity. 1. There
21 shall be a division of economic and financial opportunity within the
22 department.
23 2. The purpose of the division shall be to enhance the ability of
24 minority and women owned business enterprises to compete for city
25 contracts, to enhance city agencies' awareness of such enterprises and
26 to ensure their participation in the city procurement process.
27 3. In addition to the other purposes of this section, the division of
28 economic and financial opportunity shall also administer any programs
29 for small or locally-owned business enterprise programs as may be estab-
30 lished by law.
31 § 22-301 Division of labor services. 1. There shall be a division of
32 labor services within the department and the commissioner shall adminis-
33 ter the provisions of this section and enforce a citywide program to
34 ensure that city contractors and subcontractors take appropriate action
35 to ensure that women and minority group members are afforded equal
36 employment opportunities, and that all persons are protected from
37 discrimination prohibited under the provisions of federal, state and
38 local laws regarding recruitment, employment, job assignment, promotion,
39 upgrading, transfer, layoff, termination or rates of compensation.
40 2. The commissioner shall also monitor compliance by contractors with
41 state and federal prevailing wage requirements.
42 § 22-401 The city of Staten Island public utility service. The commis-
43 sioner or his or her designee shall serve as the director of the public
44 utility service established by provisions of the code of the preceding
45 municipality.
46 § 22-402 Authorization for public utility service. Pursuant to article
47 fourteen-A of the general municipal law, the city hereby establishes a
48 public utility service, as such term is defined in section three hundred
49 sixty of such article, which is authorized to establish, construct,
50 lease, purchase, own, acquire, use or operate facilities within or with-
51 out the territorial limits of the city, for the purpose of furnishing to
52 itself or for compensation to its inhabitants any service similar to
53 that furnished by any public utility company specified in article four
54 of the public service law. For such purpose the city may purchase elec-
55 trical and other forms of energy from the state, or from any state agen-
56 cy, or other municipal corporation, or from any private or public corpo-
S. 8578 1283
1 ration, and may sell or distribute such power to itself and to
2 residential, commercial, industrial and other customers. The city shall
3 possess any and all powers granted to a public utility service pursuant
4 to article fourteen-A of the general municipal law and any other appli-
5 cable provision of law.
6 § 22-403 Acquisition of energy and facilities. The city shall
7 contract for or otherwise purchase or acquire hydroelectric or other
8 forms of energy as shall be available from the power authority of the
9 state of New York, the state, any state agency, any other municipal
10 corporation, or any private or public corporation, and shall arrange to
11 use, lease or acquire the transmission, substation and distribution
12 facilities necessary to furnish such power to the city and, for compen-
13 sation, to residential, commercial, industrial and other customers;
14 provided, however, that the city will not acquire or build any electric
15 or gas transmission or distribution facilities which are parallel to, or
16 duplicative of electric or gas transmission or distribution facilities
17 of any utility companies within the city, nor take any action to impair
18 any agreements, franchises, rights or obligations of any utility company
19 within the city including, to provide safe, adequate and efficient
20 service to conduct its business in the city and to protect its assets
21 unless so authorized by further local law and public referendum.
22 § 22-404 Distribution and sale of energy. The city shall arrange with
23 any utility companies for the distribution of energy through the use,
24 lease, or acquisition of transmission, substation and distribution
25 facilities within the service areas of such companies and for such
26 companies to act on behalf of the city for collection of charges for
27 such energy within such service areas, or for the sale of energy to such
28 companies for resale to customers within the service areas of such
29 companies.
30 § 22-405 Rates. The fixing of rates for furnishing hydroelectric and
31 other forms of energy to residential, commercial, industrial and other
32 customers shall include consideration of (1) the actual cost to the city
33 for the purchase, distribution and delivery of such energy to such
34 customers, (2) the actual expenses necessary for administration of the
35 public utility service, including expenses for research and development,
36 and (3) any other costs or charges allowed under law, including but not
37 limited to, losses of tax revenues resulting from the operation of the
38 public utility service. Such rates shall be computed to provide revenue
39 in an amount not less than that necessary to recover fully such costs
40 and expenses. Such rates shall be subject to approval of the city coun-
41 cil.
42 § 22-406 Municipal energy fund. Revenues received from the operation
43 of the public utility service shall be paid into a fund to be known as
44 the municipal energy fund. The revenues paid into such fund shall not
45 be revenues of the city, and payments from such fund shall be made with-
46 out appropriation and shall not be included in the expense budget of the
47 city. Nothing in this section shall prohibit the city from appropriating
48 expense or capital funds in connection with the public utility service,
49 nor shall payments from the municipal energy fund to the general fund be
50 prohibited.
51 § 22-501 Bureau of ports and trade. There shall be a bureau of ports
52 and trade within the department of economic development.
53 § 22-502 Definitions. As used in this title:
54 1. "Director" shall mean the director of the bureau of ports and
55 trade.
56 2. "Bureau" shall mean the bureau of ports and trade.
S. 8578 1284
1 § 22-503 Director. The head of the bureau shall be the director of
2 ports and trade.
3 § 22-504 Powers and duties of the director. The director shall have
4 the power and duty to:
5 1. exercise the powers of a commissioner of public markets and a city
6 department of public markets under the agriculture and markets law;
7 2. have charge and control of the wharf property and waterfront prop-
8 erty owned by the city to the extent permitted by state law;
9 3. have power to regulate waterfront property and the structures on
10 the property such as wharves, piers, docks and bulkheads;
11 4. (a) have power to enforce, on waterfront property, the labor law
12 and other such laws, rules and regulations as may govern dredging, fill-
13 ing, removal, safety, maintenance, sanitary conditions, use and occupan-
14 cy of such structures on waterfront property; (b) issue permits or
15 certificates of completion in reference thereto; and (c) establish or
16 amend fees to be charged for the issuance of such permits with such fees
17 to be established by rules of the director;
18 5. have power to regulate the use of marginal streets in connection
19 with wharf property and to regulate by license any transfer of goods or
20 merchandise on, over or under such marginal streets;
21 6. enforce provisions of the zoning resolutions of the city in respect
22 to structures used in conjunction with waterfront commerce or naviga-
23 tion;
24 7. lease, subject to approval of or authorization by the city council,
25 any wharf property belonging to the city for purposes of waterfront
26 commerce or in furtherance of navigation; leases shall be for such terms
27 and contain such conditions as provided by law and leases may be sold at
28 public auction;
29 8. grant temporary permits to use and occupy any wharf property
30 belonging to the city, such permits not to exceed one year and to termi-
31 nate at will;
32 9. set aside by order any wharf property belonging to the city, which
33 has not yet been leased, for any special kind of commerce, any class of
34 vessel or for general wharfage purposes;
35 10. regulate charges for wharfage, cranage and dockage of all vessels
36 or floating structures using any wharf property;
37 11. establish, amend and enforce all necessary rules for proper care
38 of all public markets, wharf property, waterfront property, airports,
39 airplane landing sites, seaplane bases and heliports owned by the city;
40 12. sell, subject to approval of or authorization by the city council,
41 buildings, structures and other improvements on market property or wharf
42 property;
43 13. manage and promote the economic development of all airports,
44 airplane landing sites, seaplane bases and heliports owned by the city;
45 14. have charge and control of the regulation for the health and safe-
46 ty of the general public at all airports, airplane landing sites, seap-
47 lane bases, heliports, marginal streets and parking facilities appurten-
48 ant thereto owned by city;
49 15. have power to regulate all privately owned airports, airplane
50 landing sites and seaplane bases;
51 16. promote, coordinate and implement projects, activities and
52 programs designed to attract foreign investment and overseas sales and
53 to otherwise encourage the development, growth and expansion of interna-
54 tional business, commerce and trade in the city; and
55 17. administer and promote development of foreign trade zones in the
56 city.
S. 8578 1285
1 § 22-505 Waterfront plans. All plans for the waterfront of the city
2 are continued in effect and may be changed by the director pursuant to
3 the procedure provided in this section.
4 The procedure for review and approval of any change to the plans for
5 the water front shall be the same as in the case of a change to the city
6 map and the director may apply to the department of city planning to
7 incorporate plans for the waterfront pursuant to the procedure for
8 review and approval of a change to the city map.
9 The director may widen, open, construct, abandon or close any marginal
10 street or avenue included in any plans for changes and the director
11 shall also maintain such widened portion of such streets. The director
12 may proceed with any proposed changes only if the department of city
13 planning approves the change; however, if the department of city plan-
14 ning does not approve, the director may not proceed unless the city
15 council authorizes, by a two-thirds vote, the director to proceed.
16 The department of city planning shall act on such proposed changes
17 within six weeks from the time of filing with the department of city
18 planning and if it does not act within the six weeks, the director may
19 proceed with the changes.
20 Title 23 - Reserved
21 Title 24 - Environmental Protection
22 § 24-101 Definitions. As used in this title:
23 1. "Commissioner" shall mean the commissioner of the department of
24 environmental protection.
25 2. "Department" shall mean the department of environmental protection.
26 § 24-102 Commissioner. 1. The head of the department of environmental
27 protection shall be the commissioner of environmental protection.
28 2. The commissioner shall have the control of and be responsible for
29 all those functions and operations of the city relating to (a) provision
30 of adequate water supply; (b) disposal of sewage; (c) prevention of air,
31 water and noise pollution; (d) response to emergencies caused by
32 releases or threatened releases of hazardous substances; and (e)
33 collection and management of information concerning the amount, location
34 and nature of hazardous substances.
35 § 24-103 Powers and duties of commissioner. The powers and duties of
36 the commissioner shall include, without limitation, the following:
37 1. Water resources control. (a) The commissioner shall have charge and
38 control, including the power to examine, of (i) all structures and prop-
39 erty connected with the supply and distribution of water for public use,
40 including all fire hydrants and water meters; (ii) furnishing the water
41 supply and maintaining its quality, including ample reserve contingen-
42 cies for future demand; and (iii) making and enforcing rules and regu-
43 lations governing and restricting use of water supply.
44 (b) The commissioner may examine any sources of water supply of
45 private companies supplying any portion of the city and may exercise
46 superintendence, regulation and control in respect thereof.
47 (c) The commissioner shall regulate and control emissions into water
48 of harmful or objectionable substances, contaminants or pollutants and
49 shall enforce all laws and regulations with respect to such emissions.
50 (d) The commissioner may make investigations and studies as necessary
51 for purpose of enforcement, control or elimination of pollution of the
52 waters and, for such purpose, may compel witnesses and take their testi-
53 mony under oath.
S. 8578 1286
1 2. Sewage control. The commissioner shall have charge and control over
2 location, construction, alteration, repair, maintenance and operation of
3 all public and private sewers, intercepting sewers, disposal plants and
4 drainage systems.
5 The commissioner may adopt regulations with regard to the discharge
6 of sewage, refuse, factory waste and trade waste into the public sewers
7 for such discharge. The commissioner may also restrict, regulate or
8 prohibit the use of public sewers for such discharge and may prescribe
9 civil penalties for the violation thereof.
10 3. Air resources control. The commissioner shall regulate and control
11 the emission into the open air of harmful or objectionable substances,
12 including but not limited to, smoke, soot, dust, fumes, ash, gas vapors
13 and any products of combustion resulting from any fuel burning equip-
14 ment.
15 The commissioner shall enforce all laws, rules and regulations with
16 respect to such emissions. The commissioner shall make investigations
17 and studies as necessary for controlling and eliminating air pollution
18 and may compel witnesses and take their testimony under oath.
19 4. Noise pollution control. The commissioner shall enforce all laws,
20 rules and regulations to eliminate noise pollution. The commissioner
21 shall make investigations, compel witnesses and take their testimony
22 under oath for such purposes.
23 The commissioner shall also undertake studies to determine permissible
24 sound levels and shall correct problems related to noise control.
25 5. Environmental consequences. The commissioner may review and comment
26 upon the environmental consequences of any activity that may have an
27 impact on the physical aspects of the environment and may be responsible
28 for investigating, evaluating and reporting such activities related to
29 fuel supply and demand, alternative sources of energy and resource
30 recovery.
31 6. Energy. The commissioner shall have the power and duty of formulat-
32 ing an energy policy for the city.
33 The commissioner shall analyze the needs of the city with regard to
34 all kinds of energy and fuel needs. The commissioner shall prepare
35 intermediate and long range plans, goals and programs to meet such
36 needs. The commissioner shall also study, organize, promote and carry
37 out activities and programs designed to encourage fuel and energy
38 conservation.
39 7. Emergency response. The commissioner shall (a) respond to emergen-
40 cies caused by releases of hazardous substances into the environment;
41 (b) take measures to protect the public health or welfare; and (c)
42 recover costs of such response measures from the responsible persons.
43 8. Community right-to-know. The commissioner shall (a) have the power
44 to collect, compile and manage information concerning the nature of
45 hazardous substances present in the city, and (b) make such information
46 available to the public and to city personnel responsible for responding
47 to hazardous substance emergencies.
48 § 24-104 Environmental control board. 1. There shall be within the
49 department an environmental control board, the chairperson of which
50 shall be the commissioner, consisting of the commissioners of such
51 departments as the mayor and council shall determine.
52 2. The environmental control board may adopt and amend regulations not
53 inconsistent with any provision of law with regard to (a) regulating
54 emissions or pollutants into the air or waters from any land or water
55 sources, and (b) regulating or prohibiting the installation or
56 construction of any equipment giving forth such emissions or pollutants.
S. 8578 1287
1 3. The board, concurrent with the jurisdiction of the criminal courts
2 of the city, shall enforce the provisions of the city charter, this code
3 and the code of the preceding municipality which relate to (a) cleanli-
4 ness of the streets; (b) disposal of wastes; (c) provision of adequate,
5 pure supply of water; (d) prevention of air, water and noise pollution;
6 (e) regulation of street peddling; (f) prevention of fire and danger to
7 life as designated by the fire commissioner; (g) construction and
8 inspection of structures of the city for sanitary conditions, safety,
9 occupancy and as designated by the buildings and real property commis-
10 sioner; (h) response to emergencies caused by release of hazardous
11 substances; and (i) reporting of all information with regard to amount,
12 labeling and location of all hazardous substances.
13 4. The board shall have concurrent jurisdiction with the board of
14 health to enforce provisions of the health code which the board of
15 health shall designate.
16 § 24-105 Proceedings for violations. The environmental control board
17 shall conduct proceedings for the adjudication of violations of the
18 laws, rules and regulations enforced by the board.
19 The form and wording of notices of violation shall be prescribed by
20 the board. Notices shall contain information advising the persons
21 charged with the manner and the time in which such person has to admit
22 or deny the charges. The notice shall also contain a warning that fail-
23 ure to plead in the time stated may result in a default decision entered
24 against such person, or failure to plead may be deemed an admission of
25 liability and shall be grounds for imposing a maximum penalty.
26 A judgment entered by the board pursuant to this section shall remain
27 in full force and effect for eight years.
28 The board may not enter any final decision or order pursuant to this
29 section unless the notice of violation shall have been served in the
30 manner as is prescribed for service of process by the civil practice law
31 and rules, with certain exceptions.
32 Title 25 - Reserved
33 Title 26 - Housing, Buildings, Construction and Maintenance
34 § 26-101 Definitions. As used in this title:
35 1. "Commissioner" shall mean the commissioner of the department of
36 buildings and real property.
37 2. "Department" shall mean the department of buildings and real prop-
38 erty.
39 3. "Class" refers to the classification of buildings in the building
40 code or other applicable laws and shall also refer to the terms "class"
41 or "kinds" as used in the multiple dwelling law.
42 4. "Division" shall mean the division of housing preservation and
43 development.
44 § 26-102 Commissioner. The head of the department shall be the commis-
45 sioner of buildings and real property.
46 § 26-103 Department functions. The department shall enforce, with
47 respect to buildings and structures, the building code, zoning resol-
48 utions, multiple dwelling law, labor law and other regulations that may
49 govern the construction, alteration, maintenance, use, occupancy, safe-
50 ty, sanitary conditions or inspection of buildings or structures in the
51 city.
52 The department shall perform the functions of the city of Staten
53 Island relating to:
S. 8578 1288
1 1. necessary legal action regarding designation of unsafe buildings or
2 structures and the removal or remedy thereof by demolition or sealing;
3 2. the shoring of unsafe buildings or structures;
4 3. testing and approval of all power-operated cranes, derricks or
5 other hoisting equipment used to raise and lower articles on the outside
6 of buildings, not to include cranes and derricks used in industrial
7 plants or yards;
8 4. location, construction, alteration and removal of signs, either
9 illuminated or non-illuminated, attached to the exterior of any build-
10 ings;
11 5. all surface and sub-surface construction within the curbline,
12 driveways and entrances thereto and the issuance of permits in reference
13 thereto;
14 6. regulation, testing and inspection of gas and electricity used for
15 light, heat or power purposes and all electric, gas and steam meters,
16 electric wires and lights furnished for the city; and
17 7. regulation, inspection and testing of wiring and appliances for
18 light, heat and power in or on any building or structure in the city,
19 except that the jurisdiction of the department shall not extend to
20 waterfront property; which property and structures shall be under the
21 jurisdiction of the department of ports and trade.
22 § 26-104 Powers and duties. 1. There shall be a main office of the
23 department.
24 2. Persons appointed as inspectors to perform functions of the depart-
25 ment shall have such qualifications as prescribed by the commissioner;
26 however, such qualifications shall include:
27 (a) a minimum of five years experience working at a construction
28 trade;
29 (b) a license as a professional engineer or architect issued pursuant
30 to the education law;
31 (c) a minimum of three years experience working at a construction
32 trade and a minimum of two years formal training in a construction
33 program in a college, technical college or trade school; or
34 (d) a minimum of two years experience working at a construction trade
35 or a minimum two years formal education in a construction program in a
36 college, trade or technical school and a minimum of three years partic-
37 ipation in an apprentice inspection program approved by the commissioner
38 and personnel director.
39 3. The commissioner shall have the following powers and duties, with
40 respect to buildings and structures:
41 (a) to examine, approve or disapprove construction or alteration plans
42 for any building or structure and to direct the inspection of such
43 building or structure;
44 (b) to require that the construction or alteration of any building,
45 including the installation or alteration of any service equipment there-
46 in, shall be in accordance with the provisions of laws and regulations
47 applicable thereto; and
48 (c) to issue certificates of occupancy for any building or structure
49 in the city, provided that:
50 (i) no building or structure may be occupied or used until a certif-
51 icate of occupancy has been issued;
52 (ii) if a building or structure for which a certificate of occupancy
53 has not previously been required or issued shall be altered in such a
54 way as to now require a certificate, the building may not be used for
55 any purpose until such certificate is issued;
S. 8578 1289
1 (iii) no buildings altered or converted from one class to another
2 shall be occupied until a certificate has been issued; and, in cases
3 where the alteration did not necessitate the total vacating of the
4 building, the certificate must be issued within thirty days of the
5 completion of such work or the occupancy of the building may not contin-
6 ue;
7 (iv) the certificate of occupancy of a building or structure shall
8 certify that such structure conforms to requirements of all laws, rules
9 and regulations applicable thereto. Every certificate of occupancy
10 shall be binding and remain binding and conclusive upon all agencies and
11 officers of the city, unless vacated or modified by a court of competent
12 jurisdiction or a board of appeals, and upon the department of labor of
13 the state of New York;
14 (v) the commissioner may issue a temporary certificate of occupancy
15 for any part of a building, provided that such temporary use or occupan-
16 cy does not jeopardize life or property;
17 (vi) the commissioner may, in specific cases, permit experimental or
18 demonstration construction to obtain knowledge and information; the
19 commissioner may also submit reports on results thereof to the depart-
20 ment of buildings and real property; and
21 (vii) the commissioner shall have the power and duty to conduct
22 inquiries to assist him or her in his or her department duties where
23 public safety is involved and he or she shall have subpoena power to
24 compel witnesses, administer oaths, and compel production of books,
25 papers and documents.
26 All certificates of occupancy in effect on the date of establishment
27 are continued.
28 § 26-105 Appeals. Appeals may be taken from the decisions of the
29 commissioner to a three person board of appeals to be appointed by the
30 mayor; one of whom shall be an architect and one of whom shall be a
31 professional engineer.
32 § 26-106 Inspection. The commissioner, or any officer of the depart-
33 ment authorized in writing by the commissioner, may enter and inspect
34 any building, structure, enclosure, premises or any part thereof or
35 anything attached thereto.
36 Any refusal to permit such entry or inspection shall be a misdemeanor
37 triable in criminal court and punishable, upon conviction, of not more
38 than thirty days imprisonment, a fine of not more than one hundred
39 dollars, or both.
40 § 26-107 Public buildings and facilities. The department shall:
41 1. have charge and control over the plans and specifications for and
42 the construction of all buildings and facilities paid for in whole or in
43 part from the city treasury;
44 2. manage, alter, rejoin, operate, maintain and clean buildings,
45 facilities and offices leased or occupied for public use by more than
46 one city agency whose management, alteration, repair, operation, mainte-
47 nance or cleaning is paid for in whole or in part from the city treas-
48 ury, and as directed by the mayor, to perform services in space occupied
49 for public use by a single city agency;
50 3. except for the provisions of title five of the code of the preced-
51 ing municipality, employ, when in the commissioner's opinion such
52 services are necessary or desirable, qualified consultants in private
53 practice to aid the commissioner in carrying out his or her duties and
54 responsibilities with respect to public buildings or facilities; such
55 consulting or advisory services shall be performed under the supervision
56 of the commissioner;
S. 8578 1290
1 4. consult with the agencies for whose use the buildings or structures
2 are intended in preparing and considering plans and specifications and
3 in carrying out such plans and specifications, and to consider any
4 recommendations made by such agency.
5 Notwithstanding the provisions of this section, the exercise of the
6 powers and duties set forth herein shall be subject to the jurisdiction
7 of any city agency performing urban renewal and public and publicly-aid-
8 ed housing functions to the extent, and in such areas, as directed by
9 the mayor;
10 5. exercise and perform such other powers and duties as may be
11 prescribed by law or delegated to him or her in relation to laboratory
12 testing of commodities and construction materials.
13 § 26-108 Real property. The department, with respect to real property,
14 shall have power to:
15 1. purchase, lease, condemn or otherwise acquire real property for the
16 city, subject to the joint approval or authorization of the mayor and
17 the council, and to sell, lease, exchange or otherwise dispose of real
18 property of the city, subject to the joint approval or authorization of
19 the mayor and the council;
20 2. assign and reallocate to city agencies space and real property
21 owned or leased by the city, to establish comprehensive and continuing
22 programs and standards for utilization of space owned or leased by the
23 city and to conduct surveys of space utilization;
24 3. manage all real property of the city not used for public purposes,
25 including real property required for a public purpose and not being
26 currently utilized for such purpose, except wharf property; provided,
27 that the commissioner shall be responsible for the management, leasing
28 or permitting of any parcels of wharf property and water front property
29 as provided in any designation made by the commissioner of economic
30 development;
31 4. exercise and perform such other powers and duties as may be
32 prescribed by law or delegated to the commissioner in relation to the
33 acquisition, disposition, management, site selection, assignment, demo-
34 lition or other treatment of real property of the city;
35 5. employ, where desirable, managing agents to manage city properties
36 and collect rents and pay bills; and
37 6. keep, maintain and annually update a master list of leases wherein
38 the city or its agencies is a tenant.
39 § 26-109 Building code. The building code which is in force in the
40 preceding municipality on the date and time when this title takes effect
41 and all existing provisions of the building code, including penalties
42 affixed for violations, shall continue to be binding and in full force,
43 except as amended from time to time by the city of Staten Island.
44 A copy of such code shall be on file in the office of the city clerk.
45 § 26-201 Division of housing preservation and development. There shall
46 be a division of housing preservation and development within the depart-
47 ment.
48 § 26-202 Powers and duties of the division. The division is vested
49 with:
50 1. all functions of the city relating to the rehabilitation, mainte-
51 nance, alteration and improvement of residential buildings and privately
52 owned housing, pursuant to various articles of the private housing
53 finance law; acting as liaison with the New York city rehabilitation
54 mortgage insurance corporation; the execution of emergency repairs to
55 and the sealing, removal and demolition of buildings, structures and
56 private housing and the enforcement of the applicable provisions of the
S. 8578 1291
1 multiple dwelling law or others laws relating to the maintenance, use,
2 occupancy, safety or sanitary condition of any building which is occu-
3 pied, or intended to be occupied, as a home, residence or dwelling
4 place;
5 2. functions and duties with respect to the relocation of tenants of
6 real property and the selection of tenants for publicly owned or public-
7 ly aided housing;
8 3. all functions and duties of the city as related to slum clearance,
9 slum prevention and urban renewal, neighborhood conservation, rehabili-
10 tation and prevention of blighted, deteriorated or unsanitary areas, and
11 public housing, including regulation of rents in housing built with
12 state or local financing; and
13 4. functions, rights and powers granted to or delegated to the housing
14 and redevelopment board, the housing and development administration and
15 the New York city housing authority.
16 § 26-203 Housing preservation and development; commissioner. With
17 respect to matters of housing preservation and development. The commis-
18 sioner shall:
19 1. have the power to establish and administer programs designed to
20 encourage the rehabilitation and preservation of existing housing;
21 2. administer laws authorizing tax exemption or tax abatement and
22 process applications for such abatements and exemptions pursuant to
23 provisions of this code;
24 3. manage and superintend all real property acquired by the city for
25 housing and urban renewal purposes;
26 4. represent the city in carrying out the provisions of the private
27 housing finance law and act as the "supervising agency" pursuant to the
28 private housing finance law;
29 5. represent the city in carrying out the provisions of the general
30 municipal law, including acquiring, leasing or disposing of real proper-
31 ty;
32 6. undertake projects and exercise rights, powers, and privileges of
33 the applicable public housing law;
34 7. impose and collect charges and fees for financing, regulation,
35 supervision and audit of municipality-aided projects and loan programs
36 administered by the commissioner, with such moneys to be set aside in an
37 account for administrative expenses for the department;
38 8. acquire real property on behalf of other city agencies;
39 9. sell, lease, exchange or dispose of residential real property of
40 the city, provided that no such sale shall be authorized without the
41 mayor's and council's approval and until a public hearing has been held
42 and public notice given;
43 10. manage and superintend all residential real property of the city
44 not used for public purposes. The provisions of this subdivision are not
45 applicable to wharf property, real property under jurisdiction of the
46 Metropolitan Transportation Authority or the jurisdiction of the New
47 York city housing authority or the jurisdiction of the Triborough Bridge
48 and Tunnel Authority;
49 11. manage, demolish, seal or otherwise treat residential real proper-
50 ty as necessary; and
51 12. employ professional community and other personnel to manage resi-
52 dential real property.
53 § 26-204 Inspection. 1. Inspections. A housing maintenance inspector
54 shall have such qualifications as prescribed by the department of
55 personnel after consultation with the commissioner.
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1 2. Entry. The commissioner or any inspector may enter and inspect any
2 building, structure, enclosure, premises, or any part thereof and
3 refusal to permit such inspection shall be a misdemeanor triable in
4 criminal court, punishable by not more than thirty days imprisonment or
5 a fine of not more than one hundred dollars or both.
6 § 26-205 Acquisitions of real property. No purchase, lease, condemna-
7 tion or acquisition of real property shall be authorized until (i) a
8 public hearing has been held, and (ii) the department shall have
9 received the joint approval or authorization of the mayor and the coun-
10 cil.
11 In the case of acquisition by purchase or condemnation, a hearing as
12 described above shall not be required if a public hearing is already
13 being held with respect to such purchase pursuant to any other require-
14 ment of law.
15 Title 27 - Health and Mental Hygiene
16 § 27-101 Definitions. As used in this title:
17 1. "Commissioner" shall mean the commissioner of the department of
18 health and mental hygiene.
19 2. "Department" shall mean the department of health and mental
20 hygiene.
21 § 27-102 Powers and duties of commissioner. The commissioner shall
22 have the powers and duties of the department which shall include but
23 shall not be limited to:
24 1. Determining the needs of the mentally disabled in the city, which
25 determination shall include the review and evaluation of all mental
26 hygiene services and facilities within the commissioner's jurisdiction;
27 2. Engaging in short-range, intermediate-range and long-range mental
28 hygiene planning;
29 3. Developing and submitting to the mayor and council a program for
30 the delivery of services for the developmentally disabled, including
31 construction and operation of facilities;
32 4. Arranging with the approval of the mayor, for the rendition of
33 services and operation of facilities by other agencies of the city;
34 5. Within the amounts appropriated therefor, entering into contracts
35 for the rendition or operation of services and facilities on a per capi-
36 ta basis or otherwise;
37 6. Within the amounts appropriated therefor, executing such programs
38 and maintaining such facilities as may be authorized under such appro-
39 priations;
40 7. Using the services and facilities of public or private voluntary
41 institutions whenever practical, and encouraging all providers of
42 services to cooperate with or participate in the program, whether by
43 contract or otherwise;
44 8. Implementing and administering an inclusive citywide planning proc-
45 ess for the delivery of services for the developmentally disabled;
46 consistent with applicable law, standards and procedures for community
47 participation at the local community level;
48 9. Encouraging the development and expansion of programs for the
49 prevention, diagnosis, care, treatment, social and vocational rehabili-
50 tation, special education and training of the developmentally disabled
51 and for public education or developmental disability;
52 10. Establishing coordination and cooperation among all providers of
53 services, coordinating the department's program with the program of the
54 state department of mental hygiene so that there is a continuity of care
S. 8578 1293
1 among all providers of services; and seeking to cooperate by mutual
2 agreement with the state department of mental hygiene and their repre-
3 sentatives in preadmission screening and in post-hospital care of
4 persons suffering from developmental disability;
5 11. Making policy and planning for, monitoring, evaluating and exer-
6 cising general supervision over all services and facilities for the
7 developmentally disabled within the commissioner's jurisdiction; and
8 exercising general supervisory authority through the promulgation of
9 appropriate standards consistent with accepted professional practices
10 for care and treatment of patients;
11 12. To the extent necessary, when not inconsistent with any other law,
12 arranging for the visitation, inspection and investigation of all
13 providers of services, by the department or otherwise;
14 13. Conducting such inquiries as may be useful, including investi-
15 gations into individual patient care, in performing the functions of the
16 department and for such purpose the commissioner shall have subpoena
17 power to compel the attendance of witnesses, to administer oaths and to
18 compel the production of books, papers and documents and consistent with
19 the provisions of the mental hygiene law, having access to otherwise
20 confidential patient records, provided such information is requested
21 pursuant to the functions, powers and duties conferred upon the commis-
22 sioner by law;
23 14. Submitting all materials required by the mental hygiene law for
24 purposes of state reimbursement;
25 15. Serving as a member of such state or federally authorized commit-
26 tees as may be appropriate to the discharge of the commissioner's func-
27 tions;
28 16. Performing such other acts as may be necessary and proper to carry
29 out the provisions of this title and the purposes of the mental hygiene
30 law;
31 17. Develop, promote, provide, coordinate and evaluate addiction
32 programs for the prevention of addiction, treatment and rehabilitation
33 for persons addicted to narcotics and other dangerous drugs, including,
34 but not limited to, the following functions:
35 (a) participate in cooperative efforts of federal, state, regional and
36 city agencies and programs dealing with the problems of addiction to
37 narcotics and other dangerous drugs;
38 (b) evaluate present and proposed research designs, demonstration
39 projects, treatment and service programs and other requests related to
40 such prevention and care, before public funds are made available there-
41 for;
42 (c) promote or provide research and demonstration projects designed to
43 obtain information relating to the prevention of addiction and the
44 related treatment provided to drug addicts by public or voluntary
45 private agencies supported by city funds;
46 (d) promote or provide an educational and prevention program to
47 acquaint the public with the problems of addiction;
48 (e) promote or provide treatment agents for persons addicted to
49 narcotics, including, but not limited to, drug free programs, chemother-
50 apeutic programs and a school based drug prevention program;
51 (f) annually report to the city council, by March first as of the
52 preceding December thirty-first, on all treatment agents promoted or
53 provided during the year and proposed to be provided or promoted during
54 the current year, with particular attention given to the balance between
55 the treatment agents and their relative effectiveness; and
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1 (g) promote or provide training programs for persons in public or
2 voluntary private agencies and institutions engaged in the prevention,
3 treatment and rehabilitation of persons addicted to narcotics.
4 § 27-103 Functions of the department. Except as otherwise provided by
5 this title and law, the department shall perform all those functions and
6 operations that relate to health and mental hygiene related needs of the
7 people of the city.
8 § 27-104 Construction clause. The provisions of this title shall be
9 carried out subject to and in conjunction with the provisions of the
10 mental hygiene law.
11 § 15-001. The sum of six million dollars ($6,000,000), or so much
12 thereof as may be necessary, is hereby appropriated as an advance out of
13 any moneys in the general fund to the credit of the local assistance
14 account not otherwise appropriated and shall be made immediately avail-
15 able, for the expenses of the city of Staten Island, in carrying out the
16 provisions of this act relating to the transition government and estab-
17 lishment of such city. Notwithstanding any provision of law such moneys
18 shall be payable on the audit and warrant of the comptroller on vouchers
19 certified or approved in the manner prescribed by law. Such advance
20 shall be repaid from funds which shall be withheld by the state comp-
21 troller in equal payments over a period of five years out of the first
22 moneys available for the next succeeding payments of state aid appor-
23 tioned to the city of Staten Island as per capita aid for the support of
24 local government pursuant to section 54 of the state finance law.
25 § 15-002. The sum of one million dollars ($1,000,000), or so much
26 thereof as may be necessary, is hereby appropriated as an advance out of
27 any moneys in the general fund to the credit of the local assistance
28 account not otherwise appropriated and shall be made immediately avail-
29 able, for the expenses of the city school district of the city of Staten
30 Island, in carrying out the provisions of this act relating to the
31 establishment of the city school district of such city. Notwithstanding
32 any provision of law such moneys shall be payable on the audit and
33 warrant of the comptroller on vouchers certified or approved in the
34 manner prescribed by law. Such advance shall be repaid from funds which
35 shall be withheld by the state comptroller in equal payments over a
36 period of five years out of the first moneys available for the next
37 succeeding payments of education aid apportioned to the city of Staten
38 Island as aid for the support of education.
39 § 14-001. Severability. The provisions of this act shall be severable,
40 and if the application of any clause, sentence, paragraph, subdivision,
41 section or part of this act to any person or circumstance shall be
42 adjudged by any court of competent jurisdiction to be invalid, such
43 judgment shall not necessarily affect, impair or invalidate the applica-
44 tion of any such clause, sentence, paragraph, subdivision, section, part
45 of this act or remainder thereof, as the case may be, to any other
46 person or circumstance, but shall be confined in its operation to the
47 clause, sentence, paragraph, subdivision, section or part thereof
48 directly involved in the controversy in which such judgment shall have
49 been rendered.
50 § 15-001. This act shall take effect immediately; provided, however,
51 that:
52 (a) the provisions of sections 7-009, 7-010 and 13-001 of this act
53 shall take effect on the first of January next succeeding the date on
54 which it shall have become a law;
55 (b) the provisions of sections 7-001 through 7-008, 8-001 through
56 8-023, 9-001 through 9-012, 10-001 through 10-008, 11-001 and 12-001
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1 through 12-020 of this act shall take effect on the first of July in the
2 second year next succeeding the date on which it shall have become a
3 law;
4 (b-1) the amendments made to subdivisions 8 and 14 of section 2554 of
5 the education law by sections 4-007 and 4-008 of this act, respectively,
6 shall take effect upon the revival of such subdivisions as provided in
7 section 34 of chapter 91 of the laws of 2002, as amended;
8 (c) provided that the amendments to paragraphs (a), (b), (c), (d),
9 (e), and (f) of subdivision 2 of section 209 of the social services law
10 made by section 8-021 of this act shall take effect on the same date and
11 same manner as section 2 of part R of chapter 56 of the laws of 2025,
12 takes effect;
13 (d) the amendments to the second undesignated paragraph of subdivision
14 4 of section 246 of the executive law made by section 8-004 of this act
15 shall be subject to the expiration and reversion of such paragraph
16 pursuant to subdivision (aa) of section 427 of chapter 55 of the laws of
17 1992, as amended, when upon such date the provisions of section 8-004-a
18 of this act shall take effect; and
19 (e) provided that the amendments made to sections 257-c, 262, 266 and
20 267 of the executive law made by sections 8-007, 8-008, 8-009 and 8-010
21 of this act shall not affect the expiration or repeal of such sections
22 and shall be deemed expired and repealed therewith.
