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(a) Allocation of entire net in-come.
(i) if it has only business income; or
(ii) if it has both business income and investment income, but has the right to and does elect to allocate its entire net income by its business allocation percentage (19 RCNY § 11-63(a), supra) or
(iii) if it has business income and an investment loss.
(2) A taxpayer allocates its entire net income by the investment allocation percentage (19 RCNY § 11-68, supra) in the following cases:
(i) if it has only investment income; or
(ii) if it has both business income and investment income, but has the right to and does elect to allocate its entire net income by its investment allocation percentage (19 RCNY § 11-68(a), supra); or
(iii) if it has investment income and a business loss.
(3) Any taxpayer which has both business income and investment in come, and which cannot or does not elect to allocate its entire net income by either its business allocation percentage or its investment allocation percentage, allocates its entire net income by using both the business allocation percentage and the investment allocation percentage, as follows:
(i) business income is multiplied by the business allocation percentage;
(ii) investment income is multiplied by the investment allocation percentage; (iii) The two products thus obtained are added together. The sum thus obtained is the portion of the taxpayer's entire net income allocable to New York City. This is so because the taxpayer's entire net income is, in every case, the sum of its business income plus its investment income. If a net operating loss deduction is allowable in computing entire net income (see 19 RCNY § 11-28 supra), such deduction should be apportioned between business income and investment income before multiplying by the allocation percentage (see 19 RCNY § 11-69(d), infra).
(4) If a taxpayer's investment allocation percentage is zero, interest received on bank accounts is allocated by the business allocation percentage. (See 19 RCNY § 11-69(d), infra, for application of allocation percentage where net operating loss deduction is involved.)
(b) Definitions.
Investment Income. (§ 11-602(5), Administrative Code.)
(i) (A) The term "investment income" means income from investment capital to the extent included in computing entire net income, less any deductions allowable in computing entire net income that are directly or indirectly attributable to investment capital or investment income and sell such portion of any net operating loss deduction allowable in computing entire net income as described in 19 RCNY § 11-69(d). Income from investment capital includes dividends from investment capital, interest from investment capital and capital gains in excess of capital losses from the sale or exchange of investment capital.
(B) Investment income also includes gain (or loss) from closing out a position in a futures or forward contract if such contract substantially diminishes the taxpayer's risk of loss from holding one or more positions in assets that constitute investment capital. If the taxpayer holds more positions in futures or forward contracts than are reasonably necessary to substantially diminish its risk of loss from holding such positions in assets constituting investment capital, the gain (or loss) attributable to any such excess positions in futures or forward contracts is not investment income.
(C) Investment income also includes gain (or loss) from short sales of assets that constitute investment capital.
(D) Investment income also includes gain (or loss) from closing out a position in a futures or forward contract if such contract substantially diminishes the taxpayer's risk of loss from making short sales of assets that constitute investment capital. If the taxpayer holds more positions in futures or forward contracts than are reasonably necessary to substantially diminish its risk of loss from such sales, the gain (or loss) attributable to any such excess positions in futures or forward contracts is not investment income.
(E) Investment income also includes premium income from unexercised covered call option if the item which covers the call is an asset constituting investment capital. However, premium income from unexercised naked call options and premium income from unexercised put options is not investment income.
(ii) In no case may investment income be greater than entire net income. If a taxpayer has no business income, its investment income shall be deemed to be equal to its entire net income. For the definition of investment capital, see 19 RCNY § 11-37.
(iii) In computing investment income, dividends and interest from investment capital are includible in the same manner and to the same extent as in computing entire net income. Thus, where only one half of dividends from nonsubsidiary corporations is included in computing entire net income under § 11-602.8(a)(2), only one half of such dividends is included in computing investment income. Capital gains and losses are included in computing entire net income in the same manner and to the same extent as for Federal income tax purposes, subject to the modification provided in § 11-602.8(h). Accordingly, in computing investment income, capital gains and losses from sales and exchanges of assets constituting investment capital are included in the same manner and to the same extent as for Federal income tax purposes, subject to the modification provided in § 11-602.8(h).
(c) Deduction of expenses. (§ 11-602(5), Administrative Code.)
(1) Investment income must be reduced by any deductions, allowable in computing entire net income, which are directly or indirectly attributable to investment capital or investment income. Deductions allowable in computing investment income are not to be taken into account in computing business income.
(2) Deductions allowable in computing entire net income which are directly attributable to investment capital or investment income include, among others: interest incurred to carry investment capital, safe deposit box rentals, financial news subscriptions, salaries of officers and employees engaged in the management and conservation of stocks, bonds and other securities included in investment capital, investment counsel fees, custodian fees, the cost of insurance and fidelity bonds covering investment capital, and legal expenses relating to investment capital.
(d) Net operating loss deduction.
(1) Investment income is reduced by such portion of any net operating loss deduction allowable in computing entire net income as the investment income before such deduction bears to entire net income before such deduction. (See: 19 RCNY § 11-28, supra, for allowable net operating loss deduction.)
(2) The effect of such reduction is to apportion the net operating loss deduction between business and investment income for the current year in the proportion that such income bears to entire net income for the current year, so that a portion of the net operating loss deduction will be allocated on the basis of the allocation percentage applicable to the current year's investment income and a portion on the basis of the allocation percentage applicable to the current year's business income.
Example 1: Taxpayer's entire net income for 1966 is $200,000, consisting of $50,000 of investment income and $150,000 of business income. Its investment allocation percentage is 15 percent. Its business allocation percentage is 100 percent. It has an allowable net operating loss deduction of $100,000 for a loss sustained in 1967. Its investment income is $25,000
([$50,000 - $50,000 × $100,000]),
$200,000
$200,000
which is allocable 15 percent to New York City. Its business income is $75,000
([$150,000 - $150,000 × $100,000]),
$200,000
$200,000
which is allocable 100 percent to New York City. Thus, 25 percent of the net operating loss deduction is allocated on the basis of the investment allocation percentage of the current year and 75 percent is allocated on the basis of the business allocation percentage of the current year.
(3) If the investment allocation percentage of a taxpayer is zero, interest on bank accounts and obligations of the United States and its instrumentalities and obligations of New York State, its political subdivisions and its instrumentalities should (except as otherwise provided in 19 RCNY § 11-69(a)(4), supra) be added to business income before the apportionment of any net operating loss deduction, since such interest is treated as business income for allocation purposes.
Example 2: If the investment allocation percentage of the taxpayer in Example 1 was zero and $30,000 of its investment income was from United States government bonds, its investment income after allowance of the net operating loss deduction is $10,000
([$20,000 - $20,000 × $100,000]),
$200,000
$200,000
none of which is allocable to New York City. Its business income after allowance of the net operating loss deduction is $90,000
([$180,000 - $180,000 × $100,000]),
$200,000
$200,000
100 percent of which is allocable to New York City.
(a) General.
(1) A taxpayer may not allocate any of its business capital without New York City unless it had a regular place of business outside New York City during some part of the year covered by the report. But a corporation may allocate its investment capital by its investment allocation percentage, even if all of its business and its only office were in New York City.
(2) Business capital allocable to New York City is computed by multiplying business capital by the business allocation percentage. Investment capital allocable to New York City is computed by multiplying investment capital by the investment allocation percentage. The sum of the products so obtained is the taxpayer's total business and investment capital allocable to New York City.
(3) Where the investment income (before allowance of any net operating loss deduction) of a taxpayer not reporting on a combined basis is more than 85 percent of its entire net income (before allowance of any net operating loss deduction) and its investment capital is more than 85 percent of its total business and investment capital, it may elect to allocate its total business and investment capital by the investment allocation percentage (see 19 RCNY § 11-68(a), supra). Also, where the business income (before allowance of any net operating loss deduction) of a taxpayer not reporting on a combined basis is more than 75 percent of its entire net income (before allowance of any net operating loss deduction) and its business capital is more than 75 percent of its total business and investment capital, it may elect to allocate its total business and investment capital by the business allocation percentage (see: 19 RCNY § 11-63(a), supra).
(b) Allocation of business capital. (§ 11-604(4), Administrative Code.) In computing the tax measured by business and investment capital, the business capital of the taxpayer allocable to New York City is determined by multiplying business capital, determined as provided in 19 RCNY §§ 11-36(a) through 11-43, supra, by the business allocation percentage, determined as provided in 19 RCNY §§ 11-63 through 11-66, supra, unless the taxpayer has the right to and does elect to allocate its total business and investment capital by the investment allocation percentage (see: 19 RCNY § 11-68(a), supra).
(c) Allocation of investment capital. (§ 11-604(5), Administrative Code.) In computing the tax measured by business and investment capital, the investment capital allocable to New York City is determined by multiplying investment capital, determined as provided in 19 RCNY § 11-36 "investment capital" and 19 RCNY §§ 11-37 through 11-43, supra, by the investment allocation percentage, determined as provided in 19 RCNY § 11-68, supra, unless the taxpayer has the right to and does elect to allocate its total business and investment capital by the business allocation percentage (see: 19 RCNY § 11-63(a), supra).
(§ 11-604(7), Administrative Code.) Every taxpayer irrespective of whether it has a regular place of business outside New York City is entitled to allocate its subsidiary capital within and without New York City. The subsidiary capital of the taxpayer allocable to New York City is computed as follows:
(a) multiply the average fair market value (determined as provided in 19 RCNY §§ 11-39 and 11-40, supra) of its subsidiary capital (determined as provided in 19 RCNY § 11-46 "Subsidiary Capital" and 19 RCNY § 11-47, supra) invested in each subsidiary during the period covered by the taxpayer's report by the percentage of the entire capital or issued capital stock, gross direct premiums (in the case of an insurance company) or net income (in the case of a bank or trust company) of such subsidiary required to be allocated within New York City on any report or reports required of it under Chapter 6 or Chapter 11 of Title 11 of the Administrative Code, for the preceding year;
(b) multiply the cash and obligations of the United States and its instrumentalities and obligations of New York State, its political subdivisions and its instrumentalities treated as subsidiary capital, if any, (see: 19 RCNY § 11-46 "Subsidiary Capital," supra) by the weighted average of the percentage used in (a), above;
(c) add the products so obtained.
Subchapter E: Reports
(§ 11-605(1), Administrative Code.)
(a) Reports are required to be filed annually by the following:
(1) every corporation subject to tax, irrespective of the amount of its entire net income or capital. As to what corporations are subject to tax, see 19 RCNY § 11-03, supra;
(2) every receiver, referee, trustee, assignee or other fiduciary, or other officer or agent appointed by any court, who conducts the business of any corporation subject to tax under Subchapter 2 of Chapter 6 of Title 11, of the Administrative Code (§ 11-603(3), Administrative Code); and
(3) every corporation which has an officer, agent or representative within New York City, irrespective of whether such corporation is subject to tax under Subchapter 2 of Chapter 6 of Title 11 of the Administrative Code), provided such corporation is not subject to a tax imposed by any other Chapter of Title 11 of the Administrative Code.
(b) One or more short period reports are required in the case of:
(1) a newly organized taxpayer whose first accounting period is less than 12 months;
(2) a foreign corporation that becomes subject to tax in New York City subsequent to the commencement of its Federal accounting period;
(3) a taxpayer that dissolves, merges, consolidates or ceases to be subject to tax in New York City prior to the close of its accounting period for Federal income tax purposes;
(4) a taxpayer that changes its accounting period for Federal income tax purposes;
(5) a taxpayer that becomes part of or ceases to be part of a Federal consolidated group, i.e., an affiliated group that files a Federal consolidated return, during the year;
(6) a taxpayer that changes from one Federal consolidated group to another Federal consolidated group during the year; and
(7) a taxpayer that is an old target (within the meaning of Treas. Reg. § 1.338-2(c)(17)) for which an election is made pursuant to section 338 of the Internal Revenue Code and not deemed invalid pursuant to 19 RCNY § 11-27(j), if the acquisition date, as defined in section 338(h)(2) of the Internal Revenue Code, is other than the last day of the taxpayer's taxable year determined without regard to such election. A short period report required by this subdivision shall cover the period provided in 19 RCNY §§ 11-13, 11-14 and 11-87 and shall be filed as provided in 19 RCNY §§ 11-87 and 11-88.
(a) Under § 11-605 of the Administrative Code, every corporation which has an officer, agent or representative in New York City is required to file reports, irrespective of whether it is subject to tax. As to a corporation not subject to tax, this requirement applies only if it maintains in New York City, with a fair degree of regularity and continuity, one or more officers, agents or representatives, between whom and the corporation there exists the relationship of employer and employee. (As to when the relationship of employer and employee exists between a corporation and its agents or representatives, see 19 RCNY § 11-66(b), supra.) A corporation not subject to tax is not required to file reports merely because one or more of its officers, agents or representatives reside or have an office in some other capacity in New York City or come into the City at infrequent intervals in connection with isolated transactions of the corporation.
(b) Every corporation maintaining one or more officers, agents or representatives in New York City, which claims that it is not subject to tax, is required to file a special information report setting forth full information as to its activities in New York City, so that the Commissioner of Finance may ascertain whether it is subject to tax (form NYC-245). If the Commissioner of Finance determines that the corporation is subject to tax, he will notify the corporation to file a regular tax report.
(§ 11-605(3), Administrative Code.)
(a) If the amount of the taxable income of any taxpayer or of any shareholder of any taxpayer which has elected to be taxed under subchapter S of chapter 1 of the Internal Revenue Code, as returned for Federal or New York State income or franchise tax purposes, is changed or corrected by a final determination of the Commissioner of Internal Revenue or other officer of the United States or New York Tax Commission, or other competent authority, or if a renegotiation of a contract or subcontract with the United States or the State of New York results in a change in taxable income, the taxpayer is required to report such changed or corrected taxable income or the results of such renegotiation and to concede the accuracy thereof or state wherein it is erroneous.
(b) Any deficiency notice (including a notice issued pursuant to a waiver filed by a taxpayer) pursuant to the provisions of the Internal Revenue Code or the New York Tax Law is a final determination, unless a timely petition to redetermine the deficiency is filed in the Tax Court of the United States or with the State Tax Commission, in which event the judgment of the court of last resort affirming the deficiency, or the redetermination of the deficiency pursuant to the judgment of the court of last resort, is the final determination. The allowance by the Commissioner of Internal Revenue or the State Tax Commission of a refund of any part of the tax shown on the taxpayer's return or of any deficiency thereafter assessed, whether such refund is made on his or its own motion or pursuant to judgment of a court, is also a final determination.
(c) Any taxpayer filing an amended return with the United States Treasury Department or the New York State Department of Taxation and Finance shall also file an amended report with the Commissioner of Finance.
(§ 11-605(3), Administrative Code.)
(a) If a taxpayer realizes a recovery of war loss it should indicate on its next annual tax report:
(1) The amount of any such recovery, the year in which recovered and the years in which the taxpayer deducted such recovered loss.
(2) Whether any such recovery has been included in taxable income for tax purposes and the year so included.
(3) Whether any such recovery was the basis for any adjustment by the United States Treasury Department or the State Tax Commission of the income of any year prior to the year of recovery.
(b) If a taxpayer has elected to exclude such recovery from Federal taxable income in the year of recovery resulting in a computation or recomputation of any tax imposed by the United States or New York State, the taxpayer is required to report the results of such computation or recomputation of tax to the Commissioner of Finance and to concede the accuracy thereof or state wherein it is erroneous.
(§ 11-605(1), Administrative Code.)
(a) Reports are required to be made on forms prescribed by the Commissioner of Finance. In the case of all taxpayers, annual reports are required to be filed on form NYC-3L or NYC-4S. As to the form of combined reports, see 19 RCNY § 11-86 below. In the case of a corporation which is not a taxpayer, but which has an officer, agent or representative within New York City, an annual information report is required to be filed on form NYC-245 (see: 19 RCNY § 11-82, supra). Form NYC-3360 is to be used for reporting changes in Federal taxable income (see: 19 RCNY § 11-83, supra).
(b) The Commissioner of Finance may require any taxpayer to file such other reports and submit such further information as he may require in the course of the administration of the provisions of Subchapter 2 of Chapter 6 of Title 11.
(c) Every report must have annexed thereto a certification of the president, vice-president, treasurer, assistant treasurer or chief accounting officer or any other officer of the taxpayer duly authorized so to act to the effect that the statements contained in the report are true. The fact that an individual's name is signed on a certification of the report shall be prima facie evidence that such individual is authorized to sign and certify the report on behalf of the corporation.
(d) Annual report forms are supplied by the Commissioner of Finance, but failure to secure a form does not release any corporation from the obligation of making any report required by Subchapter 2 of Chapter 6 of Title 11.
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