(§ 11-641(f), Administrative Code)
As used herein, the following terms have these meanings:
Bank. The term "bank" means any banking corporation doing a banking business as defined in § 11-640 of the Administrative Code or any similar banking corporation not subject to tax pursuant to Part 4 of Subchapter 3 of Chapter 6 of Title 11 of the Administrative Code that is doing a banking business as defined in § 11-640 of the Administrative Code.
Corporation. The term "corporation" includes an association and a joint stock association.
Deposit. The term "deposit" means an IBF time deposit as defined in 12 C.F.R. § 204.8(a)(2).
Domestic. The term "domestic" when applied to a corporation or partnership means a corporation or partnership created or organized in the United States or under the Laws of the United States or of any state.
Domestic branch. The term "domestic branch" means any branch located in the United States.
Foreign. The term "foreign" when applied to a corporation or partnership means a corporation or partnership which is not domestic.
Foreign branch. The term "foreign branch" means any branch located outside the United States.
Foreign person. The term "foreign person" means:
(1) a nonresident individual;
(2) a foreign corporation, a foreign partnership or a foreign trust, other than a domestic branch thereof;
(3) a foreign branch of a domestic corporation;
(4) a foreign branch of the taxpayer;
(5) a foreign government or an international organization or an agency of either; or
(6) an international banking facility.
Foreign trust. The term "foreign trust" means a trust, the income of which, from sources without the United States which is not effectively connected with the conduct of a trade or business within the United States, is not includible in gross income for Federal income tax purposes.
Ineligible gross income. The term "ineligible gross income" means gross income (including gross income from interoffice transactions) of the IBF that is other than eligible gross income.
International organization. The term "international organization" means an organization as defined in section 7701(a)(18) of the Internal Revenue Code, an organization as described in section 204.125 of the Federal Reserve Board regulations, and the World Bank.
Loan. The term "loan" means any loan, whether the transaction is represented by a promissory note, security, acknowledgement of advance, due bill, repurchase agreement, or any other form of credit transaction, if the related asset is recorded in the financial accounts of the IBF.
Nonresident individual. The term "nonresident individual" means an individual who resides principally outside the United States at the time of the transaction.
Place of business. The term "place of business" means a branch or agency at which the taxpayer is carrying on its business in a regular and systematic manner and which is continuously maintained, occupied, and used by the taxpayer. For a taxpayer to be carrying on its business in a regular and systematic manner, its business must be conducted through its own employees who are regularly in attendance at such place of business during normal business hours. The occasional consummation of an isolated transaction does not constitute the carrying on of a business in a regular and systematic manner.
Resident individual. The term "resident individual" means an individual who resides principally within the Unites States at the time of the transaction.
Subsidiary. The term "subsidiary" means a corporation which is more than 50 percent owned or controlled, either directly or indirectly by another corporation.
United States. The term "United States" means the 50 states and the District of Columbia.
(§ 11-641(f), Administrative Code)
(a) A taxpayer doing a banking business, as defined in Subchapter 3 of Part 4 of Chapter 6 of Title 11 of the Administrative Code, which establishes an international banking facility within New York City may take as a deduction in computing its entire net income the adjusted eligible net income, as determined hereunder, of such international banking facility. However, in the event the adjusted eligible net income of the international banking facility is a loss, the amount of such loss must be added to Federal taxable income in computing the taxpayer's entire net income. An international banking facility (hereinafter called "IBF") shall have the same meaning as set forth in the New York State Banking Law or regulations promulgated thereunder or as set forth in the Laws of the United States or regulations of the Board of Governors of the Federal Reserve System.
(b) The adjusted eligible net income of an IBF is computed by subtracting from eligible gross income the following:
(1) expenses or other deductions directly or indirectly attributable to eligible gross income,
(2) the ineligible funding amount, and
(3) the floor amount.
(c) An IBF established within New York City is required to:
(1) Be located within New York City.
(2) Make loans to and receive deposits from foreign persons as defined in 19 RCNY § 15-01, infra. (3) Maintain books and records that accurately reflect gross income, gains, losses, deductions, assets, liabilities, and other activities of the IBF for the taxable year and make available to the Department of Finance upon its request any information necessary to substantiate the deduction determined hereunder. Such information may include, but shall not be limited to:
(i) a list of all loans made, arranged for, placed, or serviced during the taxable year indicating the borrower, loan number, date proceeds dispersed, maturity date, amount borrowed, and terms;
(ii) a list of all deposits made or placed during the taxable year indicating where such deposits were made or placed, date of deposit, amount, and terms; and
(iii) a list of all depositors for the taxable year.
(§ 11-641(f) and (k), Administrative Code)
(a) The adjusted eligible net income of the IBF is allowed as a deduction in computing the taxpayer's entire net income, to the extent not deductible in determining Federal taxable income. This deduction is taken before the taxpayer allocates its entire net income within and without New York City. The adjusted eligible net income of the IBF is determined by subtracting from the eligible net income of the IBF the ineligible funding amount (See: 19 RCNY § 15-10, infra – Ineligible Funding Amount) and the floor amount (See: 19 RCNY § 15-11, infra – Floor Amount). The eligible net income of the IBF is the amount remaining after subtracting from the eligible gross income of the IBF (See: 19 RCNY § 15-04, infra – Eligible gross income) the expenses applicable to such gross income (See: 19 RCNY § 15-05, infra – Direct expenses of the IBF, 19 RCNY § 15-06, infra – Interest Expense of the IBF, 19 RCNY § 15-07, infra – Bad Debt Deduction of the IBF, and 19 RCNY § 15-08, infra – Indirect Expenses of the IBF, including Head Office Expenses). When the IBF has eligible gross income and ineligible gross income for the taxable year, eligible net income of the IBF is computed by reducing eligible gross income by those expenses which are apportioned to eligible gross income pursuant to 19 RCNY § 15-09, infra.
(b) The eligible gross income of the IBF is the amount of gross income (including gross income from interoffice transactions) derived from the activities described in 19 RCNY § 15-04, infra, that would be includible in the computation of the IBF's entire net income for the taxable year, as if the IBF were a separate corporation.
(c) Expenses applicable to the eligible gross income of the IBF are those expenses or other deductions (including expenses or other deductions from interoffice transactions) described in 19 RCNY §§ 15-05, 15-06, 15-07, and 15-08, infra, that are directly or indirectly attributable to the eligible gross income of the IBF.
(d) The Commissioner of Finance may, whenever necessary in order to properly reflect the adjusted eligible net income or the entire net income of the taxpayer, determine the taxable year in which any item of income or deduction shall be included without regard to the method of accounting used by the taxpayer.
(§ 11-641(f)(2), Administrative Code)
(a) Eligible gross income includes gross income derived from making, arranging for, placing, or servicing loans to foreign persons, except that such gross income derived from those foreign persons described in 19 RCNY § 15-04(b) is eligible gross income only when substantially all the proceeds of the loan are for use outside the United States. Eligible gross income includes fees, such as arrangement, commitment, and letter of credit fees received from foreign persons regardless of when or whether the loans are made, and management fees from servicing loans to foreign persons. Eligible gross income includes interest income received from a loan made to or a deposit placed with a foreign person which was purchased without recourse as against any prior owner and meets the restrictions set forth in 12 C.F.R. § 204.122. Eligible gross income does not include income received from the purchasing or selling of assets from or to third parties, such as loans (including loan participations), securities, certificates of deposits, and bankers' acceptances.
(b) Gross income derived from making, arranging for, placing, or servicing a loan to a foreign person which is:
(1) a nonresident individual;
(2) a foreign branch of a domestic corporation (other than a foreign branch of a domestic bank);
(3) a foreign corporation which is 80 percent or more owned or controlled, either directly or indirectly, by one or more domestic corporations (except corporations which are banks), domestic partnerships, or resident individuals; or
(4) a foreign partnership which is 80 percent or more owned or controlled, either directly or indirectly, by one or more domestic corporations (except corporations which are banks), domestic partnerships, or resident individuals; is eligible gross income only when substantially all the proceeds of the loan re for use outside the United States. For purposes of this subdivision, "substantially all the proceeds of the loan are for use outside of the United States" means that at least 95 percent of the proceeds of the loan must be used outside the United States to finance the operations of the borrower or its affiliates located outside the United States. An affiliate is a corporation or partnership which is 80 percent or more owned or controlled, either directly or indirectly, by the borrower. The use of proceeds requirement for New York City tax purposes is deemed to be satisfied based on the stated purpose of the loan and a written statement of the foreign person to whom a loan is made stating that such foreign person, or another foreign person that is affiliated with such foreign person, will use the proceeds of the loan outside the United States. The written statement may be in the form of a representation or covenant in any agreement relating to the loan or a separate certificate or other written statement of the foreign person, such as the model statement set forth by the Federal Reserve Board. If the taxpayer is unable to obtain such a written statement, the Commissioner of Finance will consider other evidence that the proceeds of the loan are for use outside the United States. For purposes of this subdivision, the term "owned or controlled, either directly or indirectly" means, in the case of a corporation, the power to direct or cause the direction of the management and policies of [a corporation, whether through the ownership of at least 80 percent of the voting stock of such corporation or through the ownership of at least 80 percent of the voting stock of any other corporation which possesses such power, or, in the case of a partnership, the power to direct or cause the direction of the management and policies of] the partnership, or ownership of at least 80 percent of the profits interest or at least 80 percent of capital interest of such partnership.
(c) Eligible gross income includes gross income derived from making or placing deposits, if the related asset is recorded in the financial accounts of the IBF, with foreign persons which are:
(1) banks;
(2) foreign branches of a bank, including foreign branches of the taxpayer;
(3) foreign banks which are subsidiaries of a bank, including foreign banks which are subsidiaries of the taxpayer; or
(4) other IBFs. The term "deposit" as used in this subdivision means the amount of money received or held by such foreign person for which it has given or is obligated to give credit, either conditionally or unconditionally, to a deposit liability account, including interest credited to such account, or which is evidenced by such foreign person's certificate of deposit.
(d) Eligible gross income includes gross income derived from foreign exchange trading or hedging transactions that are solely entered into for or directly traceable to any of the transactions described in 19 RCNY § 15-04(a), (b) and (c). Gross income from foreign exchange trading or hedging transactions related to a deposit (as defined in 19 RCNY § 15-01, "deposit" supra) from a foreign person, is eligible gross income when such deposit can be traced directly to a transaction described in 19 RCNY § 15-04(a), (b) and (c). A foreign exchange trading or hedging transaction is not solely entered into for or directly traceable to any of the transactions described in 19 RCNY §§ 15-04(a), (b) and (c) unless the foreign exchange trading or hedging transaction is recorded in the financial accounts of the IBF. The term "foreign exchange trading or hedging transaction" as used in this subdivision means:
(1) the purchase, sale, or exchange of foreign currency; or
(2) the acquisition, disposition, or performance of any contract to purchase, sell, or exchange foreign currency at a future date under terms fixed in the contract if the contract hedges a foreign currency denominated loan or deposit. A forward contract hedges such foreign currency denominated loan or deposit if the effect of a change in the value of the foreign currency on the United States dollar value of the forward contract, either alone or in combination with other such contracts, offsets the effect of the change on the United States dollar value of such foreign currency denominated loan or deposit. A hedging relationship may be established by reference to particular facts and circumstances (for example, the amount of the forward contract, particular currency, initial date, and maturity) indicating a hedging purpose, or by designating a contract as being intended for the purpose of hedging a loan or deposit.
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