New York State and City Corporation Income Taxes (Portfolio 2200)

Be a trusted advisor to your clients with Bloomberg BNA Tax Portfolios. In this Portfolio, our expert authors discuss the overall structure and significant issues with respect to the New York State franchise tax on general business corporations, and the New York City general corporation tax. 

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The New York State and City Corporation Income Taxes Portfolio discusses how the State franchise tax on general business corporations consists of N.Y. Tax Law, Art. 9–A, §§ 208 through 219–a, while the City general corporation tax is found in N.Y. City Admin. Code, Subchapter 2, §§ 11–602 through 11–610.

As the term “general business corporation” suggests, neither Article 9–A nor Subchapter 2 addresses taxation of all types of corporations. Banks, insurance companies, public utilities, transportation companies (except airlines), and transmission companies are subject to taxation under other articles found in Chapter 60 of the New York Tax Law (and other subchapters of the City's Administrative Code). This Portfolio does not address New York State and City taxation with respect to those corporations. 

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Russell W. Banigan is a Director in the Multistate Tax Services Group of Deloitte Tax LLP, Tri–State Region (New York, New Jersey, Connecticut). Since 1984, he has devoted his full–time efforts to providing multistate tax consultation services, with an emphasis on the financial services industry, merger and acquisition transactions, and advanced tax strategies. Russell is currently a member of the New York State Business Council Tax Committee and has served on the State and Local Tax Committee of the American Institute of Certified Public Accountants, and previously served on the State and Local Tax Committee of the Wall Street Tax Association, the New York State Society of CPAs and various other New York State/Industry tax committees. He is also a member of the Advisory Board for the Bureau of National Affairs State Tax Portfolio Series.

Russell has authored numerous multistate tax articles, such as “What You Need to Know About the Expanded Investment Capital Regulations,” “New York's NOL Deduction Further Limits the Federal Rules,” “The Questionable Constitutionality of the California DRD [Dividends Received Deduction] and Interest Offset Rules,” and “State Tax Ramifications of the Gramm-Leach-Bliley Act”. He has addressed various business and professional organizations, such as the Tax Executive Institute and the New York Business Council, on New York and multistate tax issues.

Credentials / Russell received his Bachelor of Science in accounting from St. John's University, New York, and a Master of Science in Taxation from Pace University, New York.


Detailed Analysis


A. History of the New York State Franchise Tax

1. Nature of the Tax

2. Constitutional Aspects

3. Development of the Franchise Tax

4. Major Changes in 1944

5. Other Significant Changes

B. Brief History of the New York City General Corporation Tax

C. Administration of the Tax Law

1. New York State Tax Administration

2. New York City Tax Administration


Introductory Material

A. Definition of a "Corporation"

1. New York State's Definition of a "Corporation"

2. New York City's Definition of a "Corporation"

B. Article 9-A as the Default Category

1. The New York City GCT Is Also the Default Category

C. Tax Exempt Entities


A. Taxable Nexus

1. Domestic Corporations

2. Foreign Corporations

a. Doing Business in New York

b. Employing Capital

c. Owning or Leasing Property

d. Maintaining an Office

B. Regulatory Examples

1. New York State

a. Activities that Create Taxable Nexus for New York State Purposes

b. Activities That Do Not Create Taxable Nexus For New York State Purposes

2. New York City

a. Activities that Create Taxable Nexus for New York City Purposes

b. Activities That Do Not Create Taxable Nexus for New York City Purposes

3. New York State and City Conform to Federal Exemption for Non-U.S. Investment Companies

C. Nexus For Holding Companies

D. Nexus for Intangible Property

E. Nexus Through Ownership of a General or Limited Partnership Interest

1. New York State

2. New York City

F. Federal Limitations On Ability To Impose Taxation On Foreign Corporations

1. Due Process and Commerce Clause Limitations

2. Statutory Limitations - Public Law 86-272 (15 U.S.C. § 381 - 384)

a. New York's Interpretation of Pub. L. No. 86-272

b. Additional Illustrations of New York's Interpretation of Pub. L. No. 86-272

c. New York City's Application of Pub. L. No. 86-272


A. General Overview of the Franchise Tax

B. Entire Net Income - Link to the U.S. Internal Revenue Code

1. Controversy Surrounding the Starting Point

2. Federal Taxable Income for a Member of a Federal Consolidated Return Group

3. Federal Taxable Income of an S Corporation

4. Federal Taxable Income of a Corporation that is Exempt from Federal Income Taxation

5. Tax Accounting Methods

C. List of Addition Modifications

D. List of Subtraction Modifications

E. Post–Allocation Modifications to Entire Net Income

F. New York City's Entire Net Income

G. Federal Interest Income Included in Entire Net Income

1. Challenge to New York State's Ability to Tax Federal Interest Income

2. Challenge to New York City's Ability to Tax Federal Interest Income


Introductory Material

A. Definition of a Subsidiary

B. Definition of Subsidiary Capital

C. Dividends from Subsidiary Capital

1. Subpart F Income

2. Dividends Received from Indirect Subsidiaries

D. Interest from Subsidiary Capital

E. Gains and Losses from Subsidiary Capital

F. Gain from Subsidiary Capital - Cancellation of Indebtedness

G. Other Types of Income from Subsidiaries

H. Anti–Leverage Buyout Provisions

1. Loss of Subsidiary Capital Status

2. Consequences of Losing Subsidiary Status

I. Attribution of Interest Expense to Subsidiary Capital

1. Interest Expense Directly Attributed to Subsidiary Capital

2. Interest Expense Indirectly Attributed to Subsidiary Capital

a. The Attribution Ratio

b. Tracing Indirect Interest Expense

3. Commentary on Interest Expense Attribution

J. Noninterest Expenses Attributable to Subsidiary Capital

1. Indirect Attribution of Non-Interest Expenses to Subsidiary Capital

2. Direct Attribution of Reimbursed Expenses to Business Capital

3. Payroll and Rental Expenses

4. Current Attribution Rules

5. Case Law


A. Taxes on or Measured by Profits or Income

B. Disallowance of 5% of Acquiror's Interest Expense

1. Corporate Acquisition

2. Acquiring Substantially All Assets of Another Corporation

3. Merging or Consolidating The Target Corporation

4. Affiliate of An Acquiring Corporation

5. Excluded Transactions

6. Interest Expense Threshhold

7. Ratios Tests

8. Calculation of the Limitation Amount

C. Inclusion of Income From All Sources (Worldwide Apportionment)

1. Worldwide Income

2. Worldwide Combined Apportionment

a. Foreign Sales Corporations

b. Foreign Trade Income

3. Specific Exemption

4. Exception for Qualified Foreign Air Carriers

D. Modification for Depreciation

1. Modified Accelerated Cost Recovery System (MACRS)

2. Exceptions to Depreciation Modification

3. Constitutionality of Decoupling from ACRS/MACRS for Non-New York Property

4. New York State and City Responses to Accelerated Depreciation Deductions Permitted Under the Federal JCWAA of 2002

E. Dividends Received Deduction

F. Deferral With Respect to Emerging Technology Investments

G. Transition Property

1. Depreciation Deduction for Transition Property of a "Qualified Public Utility"

2. "Regulatory Assets" of a "Qualified Public Utility"

3. Basis for Determining Gain or Loss on Transition Property of a "Qualified Public Utility" Sold in a Taxable Transaction

4. Basis for Determining Gain or Loss on Transition Property of a "Qualified Public Utility" Sold in a Nontaxable Transaction

5. Depreciation Deduction for Transition Property of a "Qualified Power Producer" or a "Qualified Pipeline"


Introductory Material

A. Overview of Federal NOL Rules

B. New York NOL Restrictions And Modifications to Federal NOL Rules

1. NOL Must Be Incurred in an Article 9-A Taxable Year

2. NOL Must Reflect New York Modifications and May Not Exceed Federal NOL Deduction

3. Source Year and Aggregation Rules

C. Possible Constitutional Issues

D. Anti–Leverage Buyout Provisions

1. In General

2. Excluded Transactions

E. Allocation of NOL Between Different Classes of Capital

F. Alternative Tax Bases

G. Aviation Corporations


A. New York's Allocation of Net Investment Income and Capital

B. Comparison with UDITPA Approach

C. The Demarcation Line - Change In Investment Capital Regulations Pre-1990 and Post-1989

1. Pre-1990 Regulations

2. Post-1989 Regulations

D. Qualifying Corporate Debt Instruments

E. Treatment of Cash

1. In General

2. Timing of the Cash Election

F. Treatment of Repurchase Agreements (Repos)

G. Investment Income

1. Integrated Transaction Approach

H. Expenses Directly or Indirectly Attributed to Investment Capital

I. Net Investment Income

J. Allocation of Investment Income and Capital

1. Constitutional Challenge

2. Discretionary Adjustments To The Investment Allocation Percentage


A. Definitions

1. Business Capital

2. Business Income

B. Allocation of Business Income and Capital

1. New York State

2. New York City

C. Right to Allocate Business Income and Capital

1. New York City's Regular Place of Business Requirement

a. Definition of a Regular Place of Business

b. Constitutionality of the Regular Place of Business Requirement

D. The Business Allocation Percentage

1. The Property Factor

a. Value of Owned Property

b. Value of Rented Property

c. Situs of Property

d. Exclusions for Constructions in Progress and Vacant Land

e. Tangible Property Attributable To Creating or Maintaining Investment or Subsidiary Capital

f. Comparison Of The Property Factor With New York's Nexus Provisions

g. Ownership of Property vs. Loan Collateral

h. Short Period Returns

i. New York City's Property Factor

2. The Payroll Factor

a. Wages, Salaries, and Other Compensation

b. Exclusion of General Executive Officers

c. Definition of Employee

d. Location of Employees

e. Payroll Attributable to Creating or Maintaining Investment or Subsidiary Capital

f. Short Period Returns

g. New York City's Payroll Factor

3. The Receipts Factor

a. Definition of Business Receipts

b. Sourcing Rules Vary With the Nature of the Receipts

c. Categorizing a Lump Sum Payment For Property And Services

d. Sourcing Receipts

(1) Sales of Tangible Personal Property

(2) Sales of Property vs. Rendering Services

(3) Receipts from the Performance of Services

(a) General Rule For Sourcing Service Receipts

(b) Security and Commodity Brokers

(c) Clearing Firms

(d) Management, Administration, and Distribution Services Provided to RICs

(e) Transition Rule

(f) Receipts From Publishing Newspapers and Magazines, and From Broadcasting

(g) Air Freight Forwarders

(h) Receipts From Bus Transportation

(i) Receipts From Trucking (New York City)

(j) Receipts from the Transportation and Transmission of Gas Through Pipes

(4) Receipts From The Use of Property (Rents and Royalties)

(5) Royalties From Patents and Copyrights

(a) Sale of Rights For Closed-Circuit and Non-Recurring Cable Television Transmissions

(6) Other Business Receipts

(a) Sales Of Real Property By Dealers

(b) Sales Of Intangible Personal Property By Dealers

(c) Gross Income From Principal Transactions for Taxable Years Beginning on or After January 1, 2003

(d) Sales of Securities by an Underwriting Syndicate

(e) Underwriting Receipts for Taxable Years Beginning On or After January 1, 2003

(f) Interest Income

(g) Miscellaneous Income

(7) Capital Assets and Other Nonrecurring Items of Income

E. Allocation Provisions For Special Industries

1. Aviation Corporations

a. Foreign Air Carriers

2. Railroad and Trucking Businesses

3. New York City Vendors Of Utility Services

4. New York City Manufacturing Businesses

F. Business Allocation Provisions for Corporate Partners or Members in Partnerships, Joint Ventures, or LLCs

1. In General

2. Special Election For Corporate Limited Partners

G. Discretionary Adjustments

1. In General

2. Substitution Of A Business Expense Factor For The Property Factor

3. Special Provisions Applicable To Government Contractors

4. Lack Of A Unitary Business Relationship as a Basis For Discretionary Adjustment

5. Application Of Discretionary Adjustment Despite the Existence Of A Unitary Business

6. Factor Representation As Basis For Discretionary Adjustment

H. Changing The Business Allocation Percentage To Reflect Federal Audit Adjustments


Introductory Material

A. Tax on Business and Investment Capital

1. Subsidiary Capital

2. Investment Capital

3. Business Capital

4. Additional Considerations

a. Short Taxable Years

b. Special Rate for Housing Cooperatives

c. Limited Exemption for Small Business Taxpayers

d. Exemption for Small Business Concerns

e. Exemption for RICs and REITs

B. Calculation of New York State Tax on Minimum Taxable Income

1. Minimum Taxable Income For Taxable Years 1987 to 1989

2. Minimum Taxable Income For Taxable Years 1990 and After

3. Alternative NOL Deduction

4. Minimum Tax Credit

a. Taxable Years Beginning After 1993

b. Taxable Years Beginning in 1990 to 1993

(1) Pre–1994 NOL Component of the Minimum Tax Credit

c. Minimum Tax Credit Carryover Period

d. Example

C. New York City Alternative Tax on Entire Net Income Plus Officers and Shareholder Compensation

1. Definition of Corporate Officers

2. Phaseout of Compensation Paid to Officers

3. Management Fees Paid to a Corporate Shareholder

4. Stockholder Ownership Threshold

5. Excluded Corporations

6. Computation of the Tax

D. New York State and City Fixed Minimum Tax

E. Tax on Subsidiary Capital

1. Proration for Short Periods

2. Reduction Proration for Short Periods

F. Tax Surcharges

G. Metropolitan Transportation Business Surcharge

1. Geographic Location of the MCTD


A. Overview of Federal Treatment of S Corporations

1. Eligibility for Federal S Corporation Classification

2. Ownership of Subsidiaries

3. Federal Taxes Imposed on S Corporations

4. Treatment of Shareholders

5. Election and Revocation

B. New York Treatment of S Corporations

1. In General

2. Built-in Gains and Excess Passive Income

3. Eligibility for New York S Corporation Status

4. Treatment of Nontaxpayer S Corporation

5. New York QSSS Provisions

6. Termination of a New York S Corporation Election

C. Calculation of S Corporation State Taxable Income

1. Entire Net Income Of An S Corporation

2. Allocation of Income From Business and Investment Capital

3. Tax Credits

4. Combined Returns For S Corporations

D. Treatment of Shareholders of New York S Corporations

1. Modifications For Determining New York Taxable Income

2. Minimum Tax Preference Items

3. S Corporation Income Subject To New York Personal Income Taxation For Resident Shareholders

4. S Corporation Income Subject To New York Personal Income Taxation For Non-resident Shareholders

5. Credits That Flow-Through to New York S Corporation Shareholders

6. Treatment of New York C Corporation Shareholders

7. Impact of a Federal QSSS on the Shareholder's New York Taxable Income

E. New York City Treatment of S Corporations

2200.12. TAX CREDITS

A. In General

B. Credits That Can Be Currently Generated by Taxpayers

1. The Investment Tax Credit

a. The ITC Percentage

b. Qualified Property

(1) Definition of "Principally Used"

(a) Production of Goods by Manufacturing

(2) Industrial Waste Treatment and Air Pollution Control Facilities

(3) Research and Development Property

(4) Tangible Property Used in the Securities Industry

(5) Qualified Film Production Property

c. Leased Property

d. Denial of Duplicative Benefits

e. Limitation and Carryover

f. New Business Option

g. Recapture of the ITC

(1) Events Resulting in Recapture of the ITC

(2) Determining the Amount of ITC Recaptured

(3) Interest Charge on ITC Recapture Amount

(4) Special Provisions With Respect to Property Destroyed on September 11

h. Retail Enterprise Credit

i. Rehabilitation Credit for Historic Barns

2. Employment Incentive Credit

a. In General

b. Determining the Average Number of Employees in New York

c. EIC Must be Claimed by the Corporation That Claimed the ITC

d. EIC Rates

e. Limitations and Carryover

f. EIC Recapture

3. Empire Zone Tax Credits

a. Empire Zone Investment Tax Credit

(1) In General

(2) Limitations and Carryover

(3) Recapture of EZ-ITC

(4) Denial of Duplicate Credits

b. Empire Zone Employment Incentive Credit

(1) In General

(2) Limitations and Carryover

(3) Recapture of EZ-EIC

c. Empire Zone Wage Tax Credit

(1) In General

(2) Eligibility

(3) Key Definitions

(4) Number of Taxable Years in Which the EZ-WTC Can Be Claimed

(5) Amount of Credit

(6) Exclusion of Employees Transferred From a Related Person

(7) Limitations and Carryover

(8) Denial of Duplicate Credits

d. Empire Zone Capital Tax Credit

(1) In General

(2) Limitations

(3) Disposition of Property

e. Designated Empire Zones

f. Empire Zone Program Act Credits

(1) Qualified Empire Business Enterprise

(2) Employment Test

(3) QEZE Credit for Real Property Taxes

(4) QEZE Tax Reduction Credit

(5) Limitations

(6) Recapture of QEZE Credits

g. Empire Zone Investment Tax Credit for Agricultural Cooperatives

h. Empire Zone Employment Incentive Credit for Agricultural Cooperatives

i. Empire Zone Wage Tax Credit for Agricultural Cooperatives

4. Minimum Tax Credit

5. Credit for the Special Additional Mortgage Recording Tax

a. In General

b. Limitation and Carryover

6. Credit for Servicing SONYMA Mortgages

7. Agricultural Property Tax Credit

a. In General

b. Limitations, Carryover, and Refunds

c. Recapture of Credits

8. Credit for Employment of Persons With Disabilities

a. In General

b. Amount of the Credit

c. Qualified Employee

d. Limitations and Carryover

e. Coordination With I.R.C. Provisions

9. Alternative Fuels Credit

10. Credit for Fuel Cell Electric Generating Equipment

11. Credit for the Purchasing of Defibrillators

12. Long-Term Health Care Insurance Credit

13. Industrial and Manufacturing Business (IMB) Credit

14. Transportation Access Credit

15. Green Buildings Credit

a. Green Whole-Building Credit Component

b. Green Base Building Credit Component

c. Green Tenant Space Credit Component

d. Fuel Cell Credit Component

e. Photovoltaic Module Credit Component

f. Green Refrigerant Credit Component

g. Key Definitions

h. Additional Requirements and Definitions

i. Initial Credit Component Certificate

j. Eligibility Certificate

k. Taxpayer's Recordkeeping Requirements

l. Reports Filed With the DEC

m. Limitations and Carryovers

16. Low-Income Housing Tax Credit

a. Amount of Credit

b. Eligible Low-Income Building

c. Qualified Basis

d. Successor Owner of an Eligible Low-Income Building

e. Limitations and Carryovers

f. Credit Recapture

g. Exceptions to Recapture Provisions

h. Special Election With Respect to Recapture for Partnerships

i. Posting a Bond in Lieu of Credit Recapture

17. Brownfield Redevelopment Tax Credits

a. Brownfield Redevelopment Tax Credit

b. Remediated Brownfield Property Tax Credit

c. Environmental Remediation Insurance Credit

18. Empire State Film Production Credit

19. Security Training Credit

20. Disabled-accessible Taxicabs and Livery Service Vehicles Credit

21. Biofuel Production Credit

22. Empire State Commercial Production Credit

23. Conservation Easement Credit

24. Clean Heating Fuel Credit

C. Credits for Qualified Emerging Technology Companies

1. Qualified Emerging Technology Company

a. In General

b. Emerging Technologies

2. Qualified Emerging Technology Company Employment Credit

a. In General

b. Amount of the Credit and When It Can Be Claimed

c. Limitations, Carryover, and Refunds

3. Qualified Emerging Technology Company Capital Tax Credit

a. In General

b. Qualified Investments

c. Limitations and Carryover

d. Credit Recapture

4. QETC Facility, Operations, and Training Credit

5. Capital Company (CAPCO) Credit

D. Credits That Only Can Be Renewed or Carried Forward

1. Eligible Business Facilities Credit

a. In General

b. Eligibility Requirements

c. Computation of the Credit

d. Limitations on the Credit

2. Additional Investment Tax Credit

a. In General

b. Limitations and Carryover

c. Corporation Acquisitions, Mergers, and Consolidations

d. Credit Recapture

E. Order of Use

F. New York City Tax Credits

1. Credit for Distributions From Partnerships Subject to Unincorporated Business Tax

a. In General

b. Amount of the UBT Credit

c. Order of Credits

d. Limitations and Carryover

e. UBT Credit Application Against the Alternative Tax on Entire Net Income Plus Shareholder and Officers Compensation

f. Limitations Against Other Tax Bases

g. Combined Returns

2. Credit for Sales and Use Tax Paid for Electricity Used in Manufacturing, Processing, and Assembling

3. Tenant Credit for Real Estate Tax Escalations

4. Credit for Employers Relocating Into New York City From Outside of New York State

5. Relocation and Employment Assistance Program Credit

a. In General

b. Amount of REAP Credit and Periods for Which It Can Be Claimed

c. What Constitutes a Relocation

d. Definitions of "Eligible Premises"

e. Definition of "Eligible Aggregate Employment Shares"

f. Definition of "Employment Shares"

g. Initial and Annual Certifications

h. Sunset Provisions

i. Exclusion of Retailers and Hotels

6. Film Production Credit

7. Industrial Business Zone Credit


A. Introduction

B. New York State Combined Return Provisions

1. Statutory Requirements

2. Cases Interpreting the New York Statutes

3. Application of State Combined Return Provisions

C. New York City Statutory Requirements

D. Regulatory Requirements

1. New York State and City Regulatory Requirements

a. Substantial Common Ownership or Control

b. Unitary Business Relationship

(1) Holding Companies

c. Distortion

(1) Substantial Intercompany Transactions

(2) Qualified Activities

(3) Service Functions

(4) Dividends and Capital Contributions

(5) Distortion Without Substantial Intercompany Transactions

(6) Overcoming the Presumption of Distortion Through Demonstration of Arms–Length Pricing

E. Excluded Corporations

1. Section 936 Corporations

2. Corporations Taxed Under Another Franchise Tax Article

3. Alien Corporations

a. Exception to the Alien Corporation Exclusion Rule for FSCs

F. Corporations Subject To Article 9–A That Cannot Be Combined With Other Types of Article 9–A Taxpayers

1. Aviation Companies

2. Railroad and Trucking Companies (New York State)

3. Shipping Companies (New York City)

4. Manufacturers (New York City)

5. S Corporations (New York State)

G. Permission to File Combined Returns

1. Tax Years Ending on or after December 31, 1997

2. Tax Years Ending before December 31, 1997

a. New York City's Position on Autotote

H. Statute of Limitations

I. Computation of Tax on a Combined Basis

J. Entire Net Income of the Combined Return Group

1. New York State

a. Income From Combined Subsidiary Capital

b. Expenses Attributable to Combined and Uncombined Subsidiary Capital

c. Combined Return Group Net Operating Losses

2. New York City

K. Combined Return Group Business Allocation Percentage

1. New York State

2. New York City

L. Combined Return Group Investment Income and Allocation Percentage

1. General Requirements

2. Interest and Other Expenses Indirectly Attributable to Investment Income

3. Items of Investment Capital Determined At Separate Company Level

4. Combined Return Group's Investment Allocation Percentage

M. Combined Business and Investment Capital

N. Minimum Taxable Income of the Combined Return Group

O. Uncombined Subsidiary Capital

P. Tax Credits For the Combined Return Group


A. Electronic Filing

B. Tax Shelter Reporting

C. Interest and Penalties

1. Interest

2. Failure to File Penalty

3. Substantial Underpayment Penalty

5. Negligence Penalty

6. Fraud Penalty

7. Tax Shelter Penalties

D. Administrative Rulings and Opinions

1. Advisory Opinions

2. Tax Guidance Bulletins

3. Opinions of Counsel

4. Technical Services Bureau Memoranda

5. Declaratory Rulings

a. Authorization

b. Procedure

6. Judicial Review

E. Protests

1. Conciliation Conferences

2. Division of Tax Appeals

a. ALJ Proceedings

b. Exception to the Tax Appeals Tribunal

3. Judicial Proceedings

F. Declaratory Judgment

G. Voluntary Disclosure Programs

1. Voluntary Disclosure and Compliance Program

2. Voluntary Compliance Initiative for Tax Shelters

H. Tax Amnesty Programs

I. Offers in Compromise


Working Papers

Item Description Sheet

Worksheet 1 Net Operating Loss Examples

Worksheet 2 New York Regulations § 1-3.2

Worksheet 3 Interest Rates on Overpayments and Underpayments

Worksheet 4 BNA 2008 Survey of State Tax Departments: New York City Questionnaire

Worksheet 5 BNA 2008 Survey of State Tax Departments: New York Questionnaire