Section 11-701
§ 11-701 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." An individual, partnership, society, association, joint
stock company, corporation, estate, receiver, assignee, trustee or any
other person acting in a fiduciary capacity, whether appointed by a
court or otherwise, and any combination of individuals.
2. "Landlord." A person who grants the right to use or occupy premises
to any lessee, sublessee, licensee or concessionaire, whether or not
such person is the owner of the premises.
3. "Tenant." A person paying or required to pay rent for premises as a
lessee, sublessee, licensee or concessionaire.
4. "Premises." Any real property or part thereof, and any structure
thereon or space therein.
5. "Taxable premises." Any premises in the city occupied, used or
intended to be occupied or used for the purpose of carrying on or
exercising any trade, business, profession, vocation or commercial
activity, including any premises so used even though it is used solely
for the purpose of renting, or granting the right to occupy or use, the
same premises in whole or in part to tenants; except premises within the
area leased by the city of New York to the New York world's fair
1964-1965 corporation pursuant to chapter four hundred twenty-eight of
the laws of nineteen hundred sixty, as amended during the period of such
lease.
6. "Rent." The consideration paid or required to be paid by a tenant
for the use or occupancy of premises, valued in money, whether received
in money or otherwise, including all credits and property or services of
any kind and including any payment required to be made by a tenant on
behalf of his or her landlord for real estate taxes, water rents or
charges, sewer rents or any other expenses (including insurance)
normally payable by a landlord who owns the realty other than expenses
for the improvement, repair or maintenance of the tenant's premises.
7. "Base rent." The rent paid for each taxable premises by a tenant to
his or her landlord for a period, less the amounts received by or due
such tenant for the same period from any tenant of any part of such
premises:
(i) as rent for premises which constitute taxable premises of such
tenant except where such tenant is exempt from tax thereon pursuant to
subdivision b or paragraph six of subdivision c of section 11-704 of
this chapter; provided, however, that for tax periods beginning on and
after June first, nineteen hundred eighty-five, rent received or due
from a tenant exempt from tax thereon pursuant to paragraph two of
subdivision b of section 11-704 of this chapter, as such paragraph two
was in effect immediately prior to its amendment by local law number
fifty-seven for the year nineteen hundred ninety-three, may be deducted
if such tenant occupies or uses the premises pursuant to a written
agreement made prior to June first, nineteen hundred eighty-four, the
terms and conditions of which have not been changed or amended; and
provided, further, that for tax periods beginning on and after June
first, nineteen hundred eighty-five, with respect to a tenant exempt
from tax pursuant to paragraph two of subdivision b of section 11-704 of
this chapter, as such paragraph two was in effect immediately prior to
its amendment by local law number fifty-seven for the year nineteen
hundred ninety-three, because of the reduction in base rent provided for
in subdivision h of section 11-704 of this chapter, rent received or due
from such tenant may be deducted if such tenant occupies or uses the
premises pursuant to a written agreement made prior to June first,
nineteen hundred eighty-five, the terms and conditions of which have not
been changed or amended; and provided, further, that for tax periods
beginning on and after June first, nineteen hundred ninety-four, with
respect to a tenant exempt from tax pursuant to paragraph two of
subdivision b of section 11-704 of this chapter as a result of the
amendment of such paragraph two by local law number fifty-seven for the
year nineteen hundred ninety-three, whether or not such exemption is due
to the reduction in base rent provided for in subdivision h of section
11-704 of this chapter, rent received or due from such tenant may be
deducted if such tenant occupies or uses the premises pursuant to a
written agreement made prior to June first, nineteen hundred
ninety-three, the terms and conditions of which have not been changed or
amended; and provided, further, that for tax periods beginning on and
after July twenty-ninth, nineteen hundred eighty-seven, with respect to
a tenant exempt from tax pursuant to paragraph two of subdivision b of
section 11-704 of this chapter because of the reduction in base rent
provided for in subdivision f of section 11-704 of this chapter, rent
received or due from such tenant may be deducted; and provided, further,
that, notwithstanding anything in this paragraph to the contrary, for
tax periods beginning on and after June first, nineteen hundred
ninety-five, with respect to a tenant exempt from tax pursuant to
paragraph two of subdivision b of section 11-704 of this chapter, rents
received or due from such tenant may be deducted;
(ii) as rent for premises which do not constitute taxable premises and
which are used by such tenant as lodging or residential premises
(including such residential premises in hotels, apartment hotels or
lodging houses as defined in former title V of chapter forty-six of the
code);
(iii) who is exempt from tax under subdivision a of section 11-704 of
this chapter;
(iv) as rent for premises which do not constitute taxable premises
where such rent is, or to the extent that such rent is, deductible from
the base rent of such tenant by reason of paragraph five of subdivision
c of section 11-704 of this chapter; and
(v) as rent for premises which do not constitute taxable premises,
pursuant to a common law relationship of landlord and tenant
(notwithstanding the definition given to those terms by paragraphs two
and three of this section) except where it is received as rent, whether
or not such landlord-tenant relationship exists, for premises which are
occupied as or constitute:
(a) a locker, safe deposit box or beach cabana;
(b) storage space in part of a warehouse or in part of any other
structure or area in which goods are stored;
(c) garage space or parking space in any part of a garage, of a
parking lot or of a parking area where the entire garage, entire parking
lot or entire parking area accommodates more than two motor vehicles;
(d) an occupancy of a type which customarily has not been the subject
of such a common law relationship of landlord and tenant.
Nothing contained in this chapter shall be construed to permit a
tenant to deduct the same rent from his or her base rent more than once.
8. "Premises used for railroad transportation purposes." The portion
of any premises of any person actually operating a railroad, used by
such person for normal or necessary railroad transportation purposes.
The words normal or necessary railroad transportation purposes, as used
in this definition, shall not include any activities which are normally
carried on by persons not engaged in furnishing railroad transportation
service such as the operation of retail stores, barber shops,
restaurants, theatres, hotels, and newsstands; nor shall such words
include any activities which are not deemed transportation purposes
under sections four hundred eighty-nine-b and four hundred eighty-nine-m
of the real property tax law.
9. "Premises used for air transportation purposes." The portion of any
premises, located within an airport or within an air transportation
terminal shared by more than one air line, of any person actually
operating an air line as a common carrier, used by such person for
normal or necessary air transportation purposes. The words normal or
necessary air transportation purposes, as used in this definition, shall
not include any activities which are normally carried on by persons not
engaged in furnishing air transportation service such as the operation
of retail stores, barber shops, restaurants, theatres, hotels and
newsstands.
10. "Return." Any return filed or required to be filed as herein
provided other than an information return.
11. "Tax period." The period for which any return is required to be
filed under this chapter.
12. "Tax year." June first of any calendar year through May
thirty-first of the following calendar year.
13. "Day." A calendar day or any part thereof.
14. "City." The city of New York.
15. "Commissioner of finance." The commissioner of finance of the
city.
16. "Comptroller." The comptroller of the city.
17. "Dramatic or musical arts performance." A performance or
repetition thereof in a theatre, opera house or concert hall of a live
dramatic performance, whether or not musical in part. The performance
encompassed by this definition shall include so-called legitimate
theatre plays, musical comedies and operettas. They shall not include
circuses, ice skating shows or aquashows; they shall not include
performances of any kind in a roof garden, cabaret or other similar
place; and they shall not include radio or television performances,
whether or not such performances are prerecorded for later broadcast.
18. "Premises used for omnibus transportation purposes." The portion
of any premises located within a passenger terminal of any person
actually operating an omnibus line or route as a common carrier, used by
such person for normal or necessary omnibus line or route transportation
purposes. The words normal or necessary omnibus line or route
transportation purposes, as used in this definition, shall not include
any activities, which are normally carried on by persons not engaged in
furnishing omnibus line or route transportation services such as the
operation of retail stores, barber shops, restaurants, theatres, hotels
and newsstands.
19. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter.
20. "Premises used for retail sales purposes." Premises primarily used
for the selling or otherwise disposing or furnishing of tangible goods
directly to the ultimate user or consumer.
Section 11-702
§ 11-702 Imposition of tax. a. (1) For each tax year commencing on or
after June first, nineteen hundred sixty-three and ending on or before
May thirty-first, nineteen hundred seventy, every tenant shall pay a tax
of two and one-half per centum of his or her base rent for such tax year
where his or her base rent is not in excess of twenty-five hundred
dollars per year or where his or her base rent is for a period of less
than one year and would not exceed twenty-five hundred dollars for a
year if it were paid on an equivalent basis for an entire year or a tax
of five per centum of his or her base rent for such tax year where his
or her base rent is in excess of twenty-five hundred dollars per year or
where his or her base rent is for a period of less than one year and
would exceed twenty-five hundred dollars a year if it were paid on an
equivalent basis for an entire year.
(2) For each tax year commencing on or after, June first, nineteen
hundred seventy, every tenant shall pay a tax at the rates shown in the
following tables:
When the annual rent is: But not more than: The rate shall be:
0..................... $2,499 2 1/2% of the rent
$ 2,500 or over....... $4,999 5% of the rent
$ 5,000 or over....... $7,999 6 1/4% of the rent
$ 8,000 or over....... $10,999 7% of the rent
$11,000 and over...... 7 1/2% of the rent
For tax years embraced within the period beginning after May
thirty-first, nineteen hundred seventy-seven and ending May
thirty-first, nineteen hundred eighty, the tax shall be imposed at rates
equal to ninety percent of the rates shown in the foregoing table.
For tax years beginning after May thirty-first, nineteen hundred
eighty and ending May thirty-first, nineteen hundred eighty-one, the tax
shall be imposed at rates equal to eighty-five percent of the rates
shown in the foregoing table.
For tax years beginning after May thirty-first, nineteen hundred
eighty-one, the tax shall be imposed at rates equal to eighty percent of
the rates shown in the foregoing table.
Where the rent is for a period of less than one year, the rate shall
be determined by assuming that the rent is on an equivalent basis for
the entire year.
b. Nothing contained in this chapter shall be deemed to require
payment of a double or multiple tax pursuant to this chapter on any part
of any taxable premises.
c. Where a tenant pays an undivided rent for premises used both for
residential purposes and as taxable premises, the tax shall be
applicable to so much of the rent as is ascribable to the portion of
such premises used as taxable premises. Where, however, the rent
ascribable to so much of such premises as is used as taxable premises
does not exceed fifty dollars a month, such rent shall be excluded from
such tenant's base rent. Nothing contained in this subdivision shall be
construed as indicating an intent to exclude any base rent from the tax
imposed by this chapter merely because it is paid as part of an
undivided rent for premises which are only partially used as taxable
premises.
d. The tax imposed by this chapter shall be in addition to any and
all other taxes including the public housing tax imposed by chapter ten
of this title.
e. Nothing contained in this section shall be construed as permitting
base rent of a tenant for one taxable premises to be reduced by
deducting rents received by him or her for another taxable premises of
which he or she is also a tenant.
Section 11-703
§ 11-703 Presumptions and burden of proof. a. For the purpose of the
proper administration of this chapter and to prevent evasion of the tax
hereby imposed it shall be presumed that all premises are taxable
premises and that all rent paid or required to be paid by a tenant is
base rent until the contrary is established, and the burden of proving
that such presumptive base rent or any portion thereof is not included
in the measure of the tax imposed by this chapter shall be on the
tenant.
b. Where a tenant uses premises both for residential purposes and as
taxable premises and the tenant pays an undivided rent for the premises
so used, it shall be conclusively presumed against such tenant that the
rent ascribable to so much of such premises as is used as taxable
premises shall be the amount which such tenant deducts as rent for such
premises in determining the tenant's federal income tax (as reduced by
any disallowance of such deduction which is not being contested) which
is fairly attributable to the tax period or tax year.
Section 11-704
§ 11-704 Exemptions and deductions from base rent. a. The following
shall be exempt from the payment of the tax imposed by this chapter:
1. The state of New York, or any public corporation (including a
public corporation created pursuant to agreement or compact with another
state or the Dominion of Canada), improvement district or other
political subdivision of the state;
2. The United States of America, insofar as it is immune from
taxation;
3. The United Nations or other world-wide international organizations
of which the United States of America is a member;
4. Any corporation, or association, or trust, or community chest, fund
or foundation, organized and operated exclusively for religious,
charitable, or educational purposes, or for the prevention of cruelty to
children or animals, and no part of the net earnings of which inures to
the benefit of any private shareholder or individual and no substantial
part of the activities of which is carrying on propaganda, or otherwise
attempting to influence legislation; provided, however, that nothing in
this paragraph shall include an organization operated for the primary
purpose of carrying on a trade or business for profit, whether or not
all of its profits are payable to one or more organizations described in
this paragraph;
5. Any tenant who would be subject to taxes under this chapter
aggregating not more than one dollar for a tax year with respect to all
taxable premises used by the tenant; and
6. Any tenant located in the "World Trade Center Area," as defined as
follows: the area in the borough of Manhattan bounded by Church Street
on the east starting at the intersection of Liberty Street and Church
Street; running northerly along the center line of Church Street to the
intersection of Church Street and Vesey Street; running westerly along
the center line of Vesey Street to the intersection of Vesey Street and
West Broadway; running northerly along the center line of West Broadway
to the intersection of West Broadway and Barclay Street; running
westerly along the center line of Barclay Street to the intersection of
Barclay Street and Washington Street; running southerly along the center
line of Washington Street to the intersection of Washington Street and
Vesey Street; running westerly along the center line of Vesey Street to
the intersection of Vesey Street and West Street; running southerly
along the center line of West Street to the intersection of West Street
and Liberty Street; running easterly along the center line of Liberty
Street to the intersection of Liberty Street and Washington Street;
running southerly along the center line of Washington Street to the
intersection of Washington Street and Albany Street; running easterly
along the center line of Albany Street to the intersection of Albany
Street and Greenwich Street; running northerly along the center line of
Greenwich Street to Liberty Street; and running easterly along the
center line of Liberty Street to the intersection of Liberty Street and
Church Street.
b. (1) A tenant who uses premises for no more than fourteen days in a
tax year whether or not consecutive, where his or her agreement with his
or her landlord does not require him or her to pay rent for a longer
period shall be exempt from the payment of the tax imposed by this
chapter in respect to the rent paid by him or her for such premises.
(2) A tenant whose base rent, (i) for tax years beginning on or after
June first, nineteen hundred eighty-one and ending on or before May
thirty-first, nineteen hundred eighty-four, is not in excess of four
thousand nine hundred ninety-nine dollars per year, (ii) for the tax
year beginning June first, nineteen hundred eighty-four and ending May
thirty-first, nineteen hundred eighty-five, is not in excess of seven
thousand nine hundred ninety-nine dollars per year, (iii) for tax years
beginning on or after June first, nineteen hundred eighty-five and
ending on or before May thirty-first, nineteen hundred ninety-four, is
not in excess of ten thousand nine hundred ninety-nine dollars per year,
(iv) for the tax year beginning June first, nineteen hundred ninety-four
and ending May thirty-first, nineteen hundred ninety-five, is not in
excess of twenty thousand nine hundred ninety-nine dollars per year, (v)
for the tax year beginning June first, nineteen hundred ninety-five and
ending May thirty-first, nineteen hundred ninety-six, is not in excess
of thirty thousand nine hundred ninety-nine dollars per year, (vi) for
the tax year beginning June first, nineteen hundred ninety-six and
ending May thirty-first, nineteen hundred ninety-seven, is not in excess
of thirty-nine thousand nine hundred ninety-nine dollars per year, (vii)
for tax years beginning on or after June first, nineteen hundred
ninety-seven and ending on or before May thirty-first, two thousand, is
not in excess of ninety-nine thousand nine hundred ninety-nine dollars
per year, calculated without regard to any reduction in base rent
allowed by paragraph two of subdivision h of this section, (viii) for
the period beginning June first, two thousand and ending November
thirtieth, two thousand, is not in excess of ninety-nine thousand nine
hundred ninety-nine dollars per year, calculated without regard to any
reduction in base rent allowed by paragraph two of subdivision h of this
section, (ix) for the period beginning December first, two thousand and
ending May thirty-first, two thousand one, is not in excess of one
hundred forty-nine thousand nine hundred ninety-nine dollars per year,
calculated without regard to any reduction in base rent allowed by
paragraph two of subdivision h of this section, and (x) for tax years
beginning on or after June first, two thousand one, is not in excess of
two hundred forty-nine thousand nine hundred ninety-nine dollars per
year, calculated without regard to any reduction in base rent allowed by
paragraph two of subdivision h of this section, shall be exempt from the
payment of the tax imposed by this chapter with respect to such rent,
provided, however, that where the base rent of such tenant is for a
period of less than one year, such base rent shall, for purposes of this
paragraph, be determined as if it had been on an equivalent basis for
the entire year; and provided, further, that for purposes of
subparagraphs (viii) and (ix) of this paragraph, base rent for the
period specified in each of such subparagraphs shall be separately
annualized as if it had been on an equivalent basis for an entire year,
irrespective of the actual base rent for the tax year including the
period specified in such subparagraph. Notwithstanding the preceding
sentence, (xi) a tenant whose base rent for the tax year beginning June
first, nineteen hundred eighty-four and ending May thirty-first,
nineteen hundred eighty-five, is at least eight thousand dollars per
year, but not in excess of ten thousand nine hundred ninety-nine dollars
per year, shall be exempt from the payment of the tax imposed by this
chapter with respect to such rent for the period beginning December
first, nineteen hundred eighty-four and ending May thirty-first,
nineteen hundred eighty-five, and (xii) a tenant whose base rent for the
tax year beginning June first, nineteen hundred ninety-five and ending
May thirty-first, nineteen hundred ninety-six, is at least thirty-one
thousand dollars per year, but not in excess of thirty-nine thousand
nine hundred ninety-nine dollars per year, shall be exempt from the
payment of the tax imposed by this chapter with respect to such rent for
the period beginning September first, nineteen hundred ninety-five and
ending May thirty-first, nineteen hundred ninety-six.
c. Base rent shall be reduced by the amount of the taxpayer's rent
for, or reasonably ascribable to, the taxpayer's own use of the
premises:
1. As premises used for railroad transportation purposes.
2. As premises used for air transportation purposes.
3. As piers insofar as such premises are used in interstate or foreign
commerce.
4. Which are located in, upon, above or under any public street,
highway or other public place, and which are defined as special
franchise property in the real property tax law.
5. Which are taxed pursuant to subchapter one of chapter twenty-two-A
or chapter twenty of this title to the extent that such premises are
subject to, and during the period that they are subject to, such tax.
6. Which are taxed pursuant to subdivision b or c of section 11-1005
of chapter ten of this title.
7. Which are advertising signs, advertising space, vending machines or
newsstands within or attached to stations, platforms, stairways,
entranceways, passageways, mezzanines or tracks of a rapid transit
subway or elevated railroad operated by the New York city transit
authority when the rent of the tenant or of the tenant's landlord is
payable to such authority.
8. As premises used for omnibus transportation purposes.
9. As premises used for retail sales purposes where such premises are
located in the area in the borough of Manhattan bounded by Murray Street
on the north starting at the intersection of West Street and Murray
Street; running easterly along the center line of Murray Street,
connecting through City Hall Park with the center line of Frankfort
Street and running easterly along the center lines of Frankfort and
Dover Streets to the intersection of Dover Street and South Street;
running southerly along the center line of South Street to Peter Minuit
Plaza; connecting through Peter Minuit Plaza to the center line of State
Street and running northwesterly along the center line of State Street
to the intersection of State Street and Battery Place; running westerly
along the center line of Battery Place to the intersection of Battery
Place and West Street; and running northerly along the center line of
West Street to the intersection of West Street and Murray Street. Any
tax lot which is partly located inside such area shall be deemed to be
entirely located inside such area.
d. A tenant who uses taxable premises for renting to others for
residential purposes to the extent of seventy-five per centum or more of
the rentable floor space shall be exempt from the tax imposed by this
chapter in respect to the rent paid for such premises from the time that
construction thereof commences, provided, however, that this paragraph
shall not be applicable to hotels, apartment hotels or lodging houses as
defined in former title V of chapter forty-six of the code.
e. (1) A tenant who uses taxable premises for a dramatic or musical
arts performance for less than four weeks where there is no indication
prior to or at the time that such performance commences that the
performance is intended to continue for less than four weeks shall be
exempt from the tax imposed by this chapter with respect to the rent
paid for such taxable premises.
(2) (i) Notwithstanding any other provision of law to the contrary, a
tenant who uses taxable premises for the production and performance of a
theatrical work shall be exempt from the tax imposed by this chapter
with respect to the rent paid for such taxable premises for a period not
exceeding fifty-two weeks beginning on the date that the production of
such theatrical work commences, provided, however, that this
subparagraph shall not apply to any theatrical work the production of
which commenced prior to June first, nineteen hundred ninety-five.
(ii) For purposes of this paragraph, the term "theatrical work" shall
mean a performance or repetition thereof in a theater of a live dramatic
performance (whether or not musical in part) that contains sustained
plots or recognizable thematic material, including so-called legitimate
theater plays or musicals, dramas, melodramas, comedies, compilations,
farces or reviews, provided that such performance is intended to be open
to the public for at least two weeks. The term "theatrical work" shall
not include performances of any kind in a roof garden, cabaret or
similar place, circuses, ice skating shows, aqua shows, variety shows,
magic shows, animal acts, concerts, industrial shows or similar
performances, or radio or television performances, whether or not such
performances are pre-recorded for later broadcast.
f. (1) A tenant who is an eligible business and has obtained the
certifications required by paragraph four of this subdivision shall be
permitted to reduce his or her base rent for particular premises to
which he or she has relocated by an amount determined by multiplying
such base rent by a fraction the numerator of which is the number of
eligible aggregate employment shares maintained by such tenant with
respect to such premises in the tax year for which such tenant claims
the reduction and the denominator of which is a number equal to the
number of aggregate employment shares maintained by such tenant in such
premises in the tax year for which such tenant claims the reduction
allowed by this subdivision, provided, however, that such denominator
shall not exceed the highest number of aggregate employment shares
maintained by such tenant in such premises in any of the tax years
described below which commence prior to or concurrently with the tax
year for which such tenant claims the reduction allowed by this
subdivision: (i) the tax year during which such tenant relocates to such
particular premises; and (ii) each of the three tax years immediately
succeeding the tax year during which such tenant relocates to such
premises. Base rent for a particular premises may be reduced as provided
in this subdivision for the tax year during which the tenant relocates
to such premises and for any of the twelve immediately succeeding tax
years during which the tenant maintains eligible aggregate employment
shares with respect to such premises, provided, however, that there
shall be no such reduction with respect to base rent for any part of the
tax year preceding the date of relocation to such premises, and
provided, further, however, in the twelfth succeeding tax year there
shall be a reduction only with respect to base rent for the period
(commencing on the first day of such tax year) equal to the difference
between the total number of days in the tax year of relocation and the
number of days in such tax year of relocation commencing with and
following the date of relocation, and provided, further, that there
shall be no such reduction with respect to premises used for retail
activity or hotel services.
(2) (i) For purposes of this subdivision, the terms "eligible area,"
"eligible aggregate employment shares," "relocate," "retail activity"
and "hotel services" shall have the meanings ascribed by section 22-621
of the code, provided that whenever the term "taxable year" appears in
such section 22-621, such term shall be read as "tax year," as the term
"tax year" is defined in subdivision twelve of section 11-701 of this
chapter except when the taxable year referred to is the taxable year
immediately preceding the taxable year during which such tenant
relocates.
(ii) For purposes of this subdivision, the term "eligible business"
shall have the meaning ascribed by section 22-621 of the code, provided
that such term shall in addition include any person subject to a tax
imposed under subchapter four of chapter six of this title and any
person who is an insurance corporation as defined in section one
thousand five hundred of the tax law, which: (A) has been conducting
substantial business operations at one or more business locations
outside the eligible area for the twenty-four consecutive months
immediately preceding the taxable year during which such eligible
business relocates; and (B) on or after May twenty-seventh, nineteen
hundred eighty-seven relocates all or part of such business operations;
and (C) on or after May twenty-seventh, nineteen hundred eighty-seven
first enters into a lease for the premises to which it relocates or a
parcel on which will be constructed such premises.
(3) The reduction allowed by this subdivision may be claimed on an
estimated basis on the returns filed for the tax periods ending on the
last days of August, November and February of each year if, and to the
extent, permitted by regulations promulgated by the commissioner of
finance.
(4) No tenant shall be authorized to receive a reduction in base rent
subject to tax under the provisions of this subdivision, until the
premises with respect to which it is claiming a reduction in base rent
meet the requirements in the definition of eligible premises and until
it has obtained a certification of eligibility from the mayor or an
agency designated by the mayor, and an annual certification from the
mayor or an agency designated by the mayor as to the number of eligible
aggregate employment shares maintained by such tenant which may qualify
for obtaining a base rent reduction for the tenant's tax year. Any
written documentation submitted to the mayor or such agency or agencies
in order to obtain any such certification shall be deemed a written
instrument for purposes of section 175.00 of the penal law. Application
fees for such certifications shall be determined by the mayor or such
agency or agencies. No certification of eligibility shall be issued to
an eligible business on or after July first, nineteen hundred
ninety-nine unless such business meets the requirements of either
subparagraph (a) or (b) below:
(a) (1) prior to such date such business has purchased, leased or
entered into a contract to purchase or lease particular premises or a
parcel on which will be constructed such premises or already owned such
premises or parcel;
(2) prior to such date improvements have been commenced on such
premises or parcel which improvements will meet the requirements of
subdivision (e) of section 22-621 of this code relating to expenditures
for improvements;
(3) prior to such date such business submits a preliminary application
for a certification of eligibility to such mayor or such agency or
agencies with respect to a proposed relocation to such particular
premises; and
(4) such business relocates to such particular premises not later than
thirty-six months or, in a case in which the expenditures made for the
improvements specified in clause two of this subparagraph are in excess
of fifty million dollars within seventy-two months from the date of
submission of such preliminary application; or
(b) (1) not later than June thirtieth, two thousand two, such business
has purchased, leased or entered into a contract to purchase or lease
particular premises wholly contained in a building in which at least an
aggregate of forty per centum or two hundred thousand square feet,
whichever is less, of the nonresidential floor area of such building has
been purchased or leased by a business or businesses which meet or will
meet the requirements of subparagraph (a) of this paragraph with respect
to such floor area and which are or will become certified as eligible to
receive a credit under section 22-622 of this code with respect to such
floor area;
(2) not later than June thirtieth, two thousand two, such business
submits a preliminary application for a certification of eligibility to
such mayor or such agency or agencies with respect to a proposed
relocation to such particular premises; and
(3) not later than June thirtieth, two thousand two, such business
relocates to such particular premises.
Any tenant subject to a tax imposed under chapter five, or subchapter
two or three of chapter six, of this title obtaining a certification of
eligibility pursuant to subdivision (b) of section 22-622 of the code
shall be deemed to have obtained the certification of eligibility
required by this paragraph.
g. Whenever the rent paid by a tenant for his or her occupancy of
taxable premises is measured in whole or in part by the gross receipts
from the tenant's sales within such place, the tenant's rent, to the
extent paid on the basis of such gross receipts, shall be deemed not to
exceed fifteen percent of such gross receipts.
h. (1) In the case of any taxable premises located in the borough of
Manhattan north of the center line of ninety-sixth street or in the
boroughs of the Bronx, Brooklyn, Queens and Staten Island, the base rent
for such premises shall be reduced by ten percent for the period
beginning on January first, nineteen hundred eighty-six and ending May
thirty-first, nineteen hundred eighty-seven, by twenty percent for the
period beginning June first, nineteen hundred eighty-seven and ending
May thirty-first, nineteen hundred eighty-nine, and by thirty percent
for the period beginning June first, nineteen hundred eighty-nine and
ending August thirty-first, nineteen hundred ninety-five, such reduction
to be made after all other exemptions and deductions authorized by this
chapter have been taken. For periods beginning September first, nineteen
hundred ninety-five and thereafter, a tenant of taxable premises located
in that part of the city specified in the preceding sentence shall be
exempt from the payment of the tax imposed by this chapter with respect
to the rent for such taxable premises.
(2) In the case of any taxable premises located in the borough of
Manhattan south of the center line of ninety-sixth street, the base rent
for such premises shall be reduced by (i) fifteen percent for the period
beginning March first, nineteen hundred ninety-six and ending May
thirty-first, nineteen hundred ninety-six, (ii) twenty-five percent for
the period beginning June first, nineteen hundred ninety-six and ending
August thirty-first, nineteen hundred ninety-eight, and (iii)
thirty-five percent for periods beginning September first, nineteen
hundred ninety-eight and thereafter, such reduction to be made after all
other exemptions and deductions authorized by this chapter have been
taken.
i. (1) (a) (i) For purposes of, and to the extent relevant to, this
subdivision, the following terms shall, except to the extent hereinafter
modified, have the definitions assigned to such terms in section four
hundred ninety-nine-a of the real property tax law, and such definitions
shall apply with the same force and effect as if they had been set forth
in full in this subdivision: "abatement zone," "aggregate floor area,"
"applicant," "department of finance," "eligible building," "eligibility
period," "eligible premises," "expansion premises," "expansion tenant,"
"governmental agency," "landlord," "lease commencement date," "mixed-use
building," "new tenant," "person," "relocation area," "renewal tenant,"
"rent commencement date," "subtenant" and "tenant."
(ii) For purposes of this subdivision, the definitions assigned by
clause (i) of this subparagraph to the terms "eligible premises,"
"expansion tenant," "landlord," "new tenant" and "renewal tenant" shall
be modified as follows:
(A) whenever the term "eligible building" appears in any of such
definitions, such term, notwithstanding anything to the contrary, shall
be deemed to include an eligible government-owned building and, for
purposes of subparagraph (b-2) of paragraph two of subdivision i of this
section, a non-residential or mixed-use building located south of the
center line of Canal Street in the borough of Manhattan, regardless of
when it received its initial certificate of occupancy or initial
temporary certificate of occupancy and regardless of when it was
constructed and shall be deemed to include an eligible government-owned
building; and
(B) a reference in any of such definitions to a lease which meets the
eligibility requirements of section four hundred ninety-nine-c of the
real property tax law shall be deemed to include, in the case of a lease
of premises in an eligible government-owned building, a lease which
meets the eligibility requirements of paragraph four of this
subdivision.
(b) When used in this subdivision, the following terms shall mean or
include:
(i) "Eligible government-owned building." A building that would be an
eligible building, as such term is defined in section four hundred
ninety-nine-a of the real property tax law, but for the fact that it is
owned by a governmental agency.
(ii) "Eligible taxable premises." Taxable premises that are eligible
premises or expansion premises.
(iii) "Eligible tenant." A tenant with respect to whose lease of
eligible taxable premises there has been issued a certificate of
abatement or a certificate of eligibility.
(iv) "Base year." The twelve-month period that commences on the rent
commencement date.
(v) "Base rent for the base year." The total base rent for eligible
taxable premises for the base year, determined without regard to the
special reduction allowed by this subdivision.
(vi) "Certificate of abatement." The certificate of abatement issued
pursuant to section four hundred ninety-nine-d of the real property tax
law.
(vii) "Certificate of eligibility." The certificate of eligibility
issued pursuant to paragraph five of this subdivision.
(2) (a) An eligible tenant of eligible taxable premises shall be
allowed a special reduction in determining the taxable base rent for
such eligible taxable premises. Such special reduction shall be allowed
with respect to the rent for such eligible taxable premises for a period
not exceeding sixty months or, with respect to a lease commencing on or
after April first, nineteen hundred ninety-seven with an initial lease
term of less than five years, but not less than three years, for a
period not exceeding thirty-six months, commencing on the rent
commencement date applicable to such eligible taxable premises,
provided, however, that in no event shall any special reduction be
allowed for any period beginning after March thirty-first, two thousand
twenty. For purposes of applying such special reduction, the base rent
for the base year shall, where necessary to determine the amount of the
special reduction allowable with respect to any number of months falling
within a tax period, be prorated by dividing the base rent for the base
year by twelve and multiplying the result by such number of months.
(a-1) Notwithstanding paragraph one of this subdivision, for purposes
of, and to the extent relevant to, the special reduction allowed by this
subparagraph, the definitions set forth in section four hundred
ninety-nine-aa of the real property tax law shall apply with the same
force and effect as if they had been set forth in full in this
subdivision, except as such definitions are hereinafter modified. An
eligible tenant of eligible taxable premises shall be allowed a special
reduction in determining the taxable base rent for such eligible taxable
premises, provided, however, that (i) such eligible taxable premises are
eligible premises as defined in paragraph (c) of subdivision ten of
section four hundred ninety-nine-aa of the real property tax law, (ii)
such eligible taxable premises are located in the special garment center
district identified in the abatement zone defined in paragraph (c) of
subdivision two of section four hundred ninety-nine-aa of the real
property tax law, (iii) the lease for such eligible taxable premises
commences within the eligibility period applicable to the abatement zone
defined in paragraph (c) of subdivision two of section four hundred
ninety-nine-aa of the real property tax law, (iv) the lease for such
eligible taxable premises has an initial lease term of at least three
years and (v) such special reduction is limited to the benefit period,
as defined in subdivision five of section four hundred ninety-nine-aa of
the real property tax law, applicable to a lease commencing on or after
July first, two thousand five for eligible premises located within the
abatement zone defined in paragraph (c) of subdivision two of section
four hundred ninety-nine-aa of the real property tax law.
(a-2) The amount of the special reduction allowed by subparagraph
(a-1) of this paragraph shall be determined as follows:
(i) For the base year the amount of such special reduction shall be
equal to the base rent for the base year.
(ii) For the first through ninth twelve-month periods following the
base year the amount of such special reduction shall be equal to the
lesser of (A) the base rent for each such twelve-month period or (B) the
base rent for the base year.
(a-3) When used in this subdivision, for purposes of the special
reduction allowed by subparagraph (a-1) of this paragraph, the following
terms shall mean or include:
(i) "Eligible taxable premises." Taxable premises that are eligible
premises or expansion premises.
(ii) "Eligible tenant." A tenant with respect to whose lease of
eligible taxable premises there has been issued a certificate of
abatement.
(iii) "Base year." The twelve-month period that commences on the rent
commencement date.
(iv) "Base rent for the base year." The total base rent for eligible
taxable premises for the base year, determined without the special
reduction allowed by subparagraph (a-1) of this paragraph.
(v) "Certificate of abatement." The certificate of abatement issued
pursuant to section four hundred ninety-nine-dd of the real property tax
law.
(b) Except as provided in subparagraphs (b-1) and (b-2) of this
paragraph, the amount of the special reduction allowed by this
subdivision shall be determined as follows:
(i) For the base year the amount of such special reduction shall be
equal to the base rent for the base year.
(ii) For the first and second twelve-month periods following the base
year the amount of such special reduction shall be equal to the lesser
of (A) the base rent for each such twelve-month period or (B) the base
rent for the base year.
(iii) For the third twelve-month period following the base year the
amount of such special reduction shall be equal to two-thirds of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(iv) For the fourth twelve-month period following the base year the
amount of such special reduction shall be equal to one-third of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(b-1) The amount of the special reduction allowed by this subdivision
with respect to a lease commencing on or after April first, nineteen
hundred ninety-seven with an initial lease term of less than five years,
but not less than three years, shall be determined as follows:
(i) For the base year the amount of such special reduction shall be
equal to the base rent for the base year.
(ii) For the first twelve-month period following the base year the
amount of such special reduction shall be equal to two-thirds of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(iii) For the second twelve-month period following the base year the
amount of such special reduction shall be equal to one-third of the
lesser of (A) the base rent for such twelve-month period or (B) the base
rent for the base year.
(b-2) The amount of the special reduction allowed by this subdivision
with respect to a lease other than a sublease commencing between July
first, two thousand five and June thirtieth, two thousand thirteen with
an initial or renewal lease term of at least five years shall be
determined as follows:
(i) For the base year the amount of such special reduction shall be
equal to the base rent for the base year.
(ii) For the first, second, third and fourth twelve-month periods
following the base year the amount of such special reduction shall be
equal to the lesser of (A) the base rent for each such twelve-month
period or (B) the base rent for the base year.
(c) For purposes of determining (i) whether a tenant is, pursuant to
the provisions of paragraph two of subdivision b of this section, exempt
from payment of the tax imposed by this chapter with respect to the base
rent for eligible taxable premises or (ii) whether, and the extent to
which, a tenant is eligible for the credit allowed pursuant to the
provisions of section 11-704.3 of this chapter with respect to eligible
taxable premises, the term "base rent" as used in such provisions shall
be the base rent as determined prior to the allowance of any special
reduction allowed by this subdivision.
(d) Notwithstanding anything to the contrary, for purposes of this
subdivision, expansion premises shall be treated as separate and
distinct from any other premises of the expansion tenant in the same
eligible building.
(3) The special reduction allowed by this subdivision shall be allowed
commencing on the rent commencement date; however, if the date of the
certificate of abatement or certificate of eligibility is later than the
rent commencement date, the tenant shall not, in the first instance,
claim the special reduction on any return required to be filed for a tax
period ending prior to the date of such certificate of abatement or
certificate of eligibility. If the date of such certificate of abatement
or certificate of eligibility falls in a tax period subsequent to the
tax period in which the rent commencement date falls, but both such
dates fall within the same tax year, the special reduction that was not
claimed in the first instance for any period preceding the date of such
certificate of abatement or certificate of eligibility shall be
reflected in the final return for the tax year. If the date of the
certificate of abatement or certificate of eligibility falls in the tax
year following the tax year in which the rent commencement date falls,
an amended final return shall be filed for such earlier tax year in
which shall be reflected any special reduction allowable for such tax
year; in addition, the final return for such later tax year shall
reflect any special reduction that was not claimed in the first instance
for any period in such tax year preceding the date of the certificate of
abatement or certificate of eligibility.
(4) (a) With respect to premises located in an eligible
government-owned building, no special reduction shall be allowed under
this subdivision unless:
(i) the landlord enters into a lease for eligible premises with a new
tenant or a renewal tenant and:
(A) the lease commencement date is within the eligibility period; and
(B) (I) if, by the sixtieth day following the rent commencement date,
such new or renewal tenant employs fifty or fewer employees in the
eligible premises, the initial lease term is for a period of at least
five years, provided, however, that with respect to a lease commencing
on or after July first, nineteen hundred ninety-six if, by the sixtieth
day following the rent commencement date, such new or renewal tenant
employs one hundred twenty-five or fewer employees in the eligible
premises, the initial lease term is for a period of at least five years,
and provided, further, that with respect to a lease commencing on or
after April first, nineteen hundred ninety-seven if, by the sixtieth day
following the rent commencement date, such new or renewal tenant employs
one hundred twenty-five or fewer employees in the eligible premises, the
initial lease term is for a period of at least three years, or (II) if,
by the sixtieth day following the rent commencement date, such new or
renewal tenant employs more than fifty employees in the eligible
premises, the initial lease term is for a period of at least ten years,
provided, however, that with respect to a lease commencing on or after
July first, nineteen hundred ninety-six if, by the sixtieth day
following the rent commencement date, such new or renewal tenant employs
more than one hundred twenty-five employees in the eligible premises,
the initial lease term is for a period of at least ten years; or
(ii) the landlord enters into a lease with an expansion tenant for
expansion premises and:
(A) the lease commencement date is within the eligibility period;
(B) if the expansion premises are located in the eligible building
previously occupied by such expansion tenant, the lease term for the
premises in the eligible building previously occupied by such expansion
tenant will expire no earlier than the expiration date of the initial
lease term for the expansion premises, provided that where such
expansion tenant occupies premises in the eligible building under more
than one lease, the foregoing provision of this subclause shall be
applied with reference to the lease for the premises containing the
largest amount of square feet, provided, however, that this subclause
shall not apply to a lease commencing on or after July first, nineteen
hundred ninety-six; and
(C) (I) if, by the sixtieth day following the rent commencement date,
such expansion tenant employs fifty or fewer employees in the eligible
building in which the expansion premises are located, the initial lease
term for the expansion premises is for a period of at least five years,
provided, however, that with respect to a lease commencing on or after
July first, nineteen hundred ninety-six if, by the sixtieth day
following the rent commencement date, such expansion tenant employs one
hundred twenty-five or fewer employees in the expansion premises, the
initial lease term for the expansion premises is for a period of at
least five years, and provided, further, that with respect to a lease
commencing on or after April first, nineteen hundred ninety-seven if, by
the sixtieth day following the rent commencement date, such expansion
tenant employs one hundred twenty-five or fewer employees in the
expansion premises, the initial lease term for the expansion premises is
for a period of at least three years, or (II) if, by the sixtieth day
following the rent commencement date, such expansion tenant employs more
than fifty employees in such eligible building, the initial lease term
for the expansion premises is for a period of at least ten years,
provided, however, that with respect to a lease commencing on or after
July first, nineteen hundred ninety-six if, by the sixtieth day
following the rent commencement date, such expansion tenant employs more
than one hundred twenty-five employees in the expansion premises, the
initial lease term for the expansion premises is for a period of at
least ten years.
(b) Notwithstanding anything in this subdivision to the contrary, with
respect to premises located in an eligible government-owned building, no
certificate of eligibility shall be issued and no special reduction
shall be allowed under this subdivision if:
(i) the tenant has relocated to such premises from any area in the
borough of Manhattan north of the center line of 96th street or from any
portion of the boroughs of the Bronx, Brooklyn, Queens, or Staten
Island; or
(ii) the lease for such premises provides that during the initial
lease term required under subparagraph (a) of this paragraph either the
landlord or the tenant may terminate such lease prior to the expiration
of such required initial lease term, provided that such lease may
provide that either the landlord or the tenant may terminate such lease
if (A) the other party is in default of any of such party's obligations
under the lease, (B) the eligible premises are damaged or destroyed by
fire or other casualty, (C) the eligible premises are rendered unusable
for any reason not attributable to any act or failure to act of either
tenant or landlord or (D) the eligible premises are acquired by eminent
domain.
(c) For purposes of this paragraph, the expiration date of a lease
shall be determined by the expiration date set forth in such lease,
without giving effect to any rights of the landlord or the tenant to
terminate such lease prior to the expiration date set forth therein.
(5) (a) (i) With respect to premises located in an eligible
government-owned building, an application for a certificate of
eligibility entitling a tenant to claim the special reduction allowed by
this subdivision shall be filed by such tenant with the department of
finance on or after the date on which the lease for the eligible
premises is executed by the landlord and tenant but in no event more
than one hundred eighty days following the later of the rent
commencement date or the date that chapter four of the laws of nineteen
hundred ninety-five became a law, and no such certificate of eligibility
shall be issued unless such application is filed within such time.
(ii) Notwithstanding clause (i) of this subparagraph and any other
provision of law to the contrary, with respect to a lease commencing on
or after July first, nineteen hundred ninety-six in premises located in
an eligible government-owned building, an application for a certificate
of eligibility entitling a tenant to claim the special reduction allowed
by this subdivision shall be filed by such tenant with the department of
finance on or after the date on which the lease for the eligible
premises is executed by the landlord and tenant but in no event more
than one hundred eighty days following the rent commencement date or
sixty days following the date that the chapter of the laws of nineteen
hundred ninety-seven that added this clause became a law, whichever is
later, and no such certificate of eligibility shall be issued unless
such application is filed within such time.
(b) In addition to any other information required by the department of
finance, such application for a certificate of eligibility shall include
(i) an abstract of the lease for the eligible taxable premises, which
shall include the lease commencement date, the rent commencement date
and the expiration date of such lease, (ii) a statement as to the number
of persons employed by the tenant in the eligible taxable premises and,
where applicable, in the eligible building containing such premises, by
the sixtieth day following the rent commencement date, (iii) a statement
as to the location of all office or retail space in the city occupied by
the tenant prior to the execution of the lease for the eligible taxable
premises and the commencement and expiration dates of all leases for
such office or retail space located in the abatement zone. Such
application shall also state that the tenant agrees to comply with and
be subject to such rules as may be issued from time to time by the
department of finance.
(c) The department of finance shall issue a certificate of eligibility
upon determining that an application filed pursuant to this paragraph
meets the requirements set forth in this subdivision, provided, however,
that no such certificate of eligibility shall be issued if any payments
in lieu of taxes, water or sewer charges or other lienable charges are
due and owing with respect to such eligible government-owned building at
the time such application is pending, unless such payments in lieu of
taxes or charges are at such time being paid in timely installments
pursuant to a written agreement with the department of finance or other
appropriate agency.
(d) The burden of proof shall be on the tenant to show by clear and
convincing evidence that the requirements for granting a certificate of
eligibility have been satisfied. The department of finance shall have
the authority to require that statements in connection with applications
pursuant to this paragraph be made under oath.
(e) The department of finance may provide by rule for the payment by
tenants of premises in eligible government-owned buildings of reasonable
administrative charges or fees necessary to defray expenses in
connection with the determination of initial and continuing eligibility
for the special reduction allowed by this subdivision.
(6) (a) If an eligible tenant (i) sublets any portion of the eligible
taxable premises to any other person, or (ii) otherwise ceases to occupy
or use any portion of the premises as eligible taxable premises, such
tenant shall, immediately upon the occurrence of any such event, cease
to be eligible for the special reduction allowed by this subdivision
with respect to the portion of the premises which is sublet or which
ceases to be occupied or used by such tenant as eligible taxable
premises, and for any period following the occurrence of any such event,
the special reduction otherwise allowed by this subdivision shall be
reduced by an amount determined by multiplying the amount of such
special reduction by the percentage of the premises which is sublet or
which has ceased to be occupied or used as eligible taxable premises.
Such tenant shall give written notice of the occurrence of any such
event to the department of finance within thirty days thereof. If the
tenant fails to give such notice, an assessment of any additional tax
that may become due as a result of the occurrence of any such event may
be made at any time, notwithstanding anything in section 11-717 of this
chapter to the contrary.
(b) Notwithstanding anything in this chapter to the contrary, a tenant
claiming the special reduction allowed by this subdivision shall file a
return for each tax period with respect to which such special reduction
is claimed. Each such return shall contain a certification by the
tenant, in such form as the department of finance may prescribe, to the
effect that such tenant meets all the requirements of this subdivision,
and no special reduction shall be allowed if such return does not
contain such certification by such tenant.
(c) If any special reduction allowed under this subdivision was
obtained by a tenant as a result of having made a false or misleading
statement as to a material fact or having omitted to state any material
fact necessary in order to make such statement not false or misleading,
no such special reduction shall be allowed and any additional tax that
becomes due as a result of such disallowance may be assessed at any
time, notwithstanding anything in section 11-717 of this chapter to the
contrary. In addition, the department of finance may declare any such
tenant to be ineligible to claim any special reduction under this
subdivision in the future with respect to the same or any other
premises.
7. A determination by the department of finance pursuant to
subdivision six of section four hundred ninety-nine-f of the real
property tax law to deny, terminate or revoke any abatement applied for
or granted pursuant to title four of article four of the real property
tax law based on the relationship between the landlord and the tenant
shall not be dispositive of whether such tenant is eligible for a
special reduction under this subdivision. The department of finance may
determine that such tenant is eligible for a special reduction under
this subdivision and may issue a certificate of eligibility to such
tenant in accordance with the procedures and pursuant to the standards
applicable to a tenant of premises located in an eligible
government-owned building, provided, however, that any application filed
pursuant to paragraph five of this subdivision by a tenant whose
application for a certificate of abatement pursuant to title four of
article four of the real property tax law was denied by the department
of finance pursuant to subdivision six of section four hundred
ninety-nine-f of the real property tax law based on the relationship
between the landlord and the tenant, or by a tenant whose application
for a certificate of abatement pursuant to title four of article four of
the real property tax law was granted by the department of finance, but
whose abatement was terminated or revoked by the department of finance
pursuant to subdivision six of section four hundred ninety-nine-f of the
real property tax law based on the relationship between the landlord and
the tenant, may be deemed by the department of finance to have been
filed on the date the application for such certificate of abatement was
filed. This paragraph shall only apply to leases commencing on or after
April first, nineteen hundred ninety-seven.
Section 11-704.2
§ 11-704.2 Special credit. A tenant whose base rent for the tax year
beginning June first, nineteen hundred ninety-three and ending May
thirty-first, nineteen hundred ninety-four is at least eleven thousand
dollars per year but not in excess of thirteen thousand nine hundred
ninety-nine dollars per year shall be allowed a credit against the tax
imposed by this chapter for such tax year, such credit shall be equal to
twenty-five percent of the tax imposed on such base rent for such tax
year. Where the base rent of a tenant is for a period of less than one
year, such base rent shall, for purposes of this section, be determined
as if it had been on an equivalent basis for the entire year. The credit
allowed under this section shall be deducted prior to the deduction of
any credit allowable under section 11-704.1 of this chapter.
Section 11-704.3
§ 11-704.3 Tax credit. (a) (1) For the period beginning September
first, nineteen hundred ninety-five and ending May thirty-first,
nineteen hundred ninety-six, a credit shall be allowed against the tax
imposed by this chapter, such credit to be determined in accordance with
the following table:
If the tenant's annualized The credit shall be an amount equal
base rent for such period is: to the following percentage of the
tax imposed on such annualized base
rent for such period:
At least: But not over:
$40,000 $44,999 80%
$45,000 $49,999 60%
$50,000 $54,999 40%
$55,000 $59,999 20%
If the tenant's annualized base rent for such period is over
fifty-nine thousand nine hundred ninety-nine dollars, no credit shall be
allowed under this paragraph.
(2) For the tax year beginning June first, nineteen hundred ninety-six
and ending May thirty-first, nineteen hundred ninety-seven, a credit
shall be allowed against the tax imposed by this chapter, such credit to
be determined in accordance with the following table:
If the tenant's base rent is: The credit shall be an amount equal
to the following percentage of the
tax imposed on such base rent for
the tax year:
At least: But not over:
$40,000 $44,999 80%
$45,000 $49,999 60%
$50,000 $54,999 40%
$55,000 $59,999 20%
If the tenant's base rent is over fifty-nine thousand nine hundred
ninety-nine dollars, no credit shall be allowed under this paragraph.
(3) For each tax year beginning on or after June first, nineteen
hundred ninety-seven and ending on or before May thirty-first, two
thousand, a credit shall be allowed against the tax imposed by this
chapter, such credit to be determined in accordance with the following
table:
If the tenant's base rent is: The credit shall be an amount equal
to the following percentage of the
tax imposed by this chapter for the
tax year:
At least: But not over:
$100,000 $109,999 80%
$110,000 $119,999 60%
$120,000 $129,999 40%
$130,000 $139,999 20%
If the tenant's base rent is over one hundred thirty-nine thousand
nine hundred ninety-nine dollars, no credit shall be allowed under this
paragraph. For purposes of this paragraph, 'base rent' shall be
calculated without regard to any reduction in base rent allowed by
paragraph two of subdivision h of section 11-704 of this chapter.
(4) For the period beginning June first, two thousand and ending
November thirtieth, two thousand, a credit shall be allowed against the
tax imposed by this chapter, such credit to be determined in accordance
with the following table:
If the tenant's annualized The credit shall be an amount equal
base rent for such period is: to the following percentage of the
tax imposed on such annualized base
rent for such period:
At least: But not over:
$100,000 $109,999 80%
$110,000 $119,999 60%
$120,000 $129,999 40%
$130,000 $139,999 20%
If the tenant's annualized base rent for such period is over one
hundred thirty-nine thousand nine hundred ninety-nine dollars, no credit
shall be allowed under this paragraph. For purposes of this paragraph
'base rent' shall be calculated without regard to any reduction in base
rent allowed by paragraph two of subdivision h of section 11-704 of this
chapter.
(5) For the period beginning December first, two thousand and ending
May thirty-first, two thousand one, a credit shall be allowed against
the tax imposed by this chapter, such credit to be determined in
accordance with the following table:
If the tenant's annualized The credit shall be an amount equal
base rent for such period is: to the following percentage of the
tax imposed on such annualized base
rent for such period:
At least: But not over:
$150,000 $159,999 80%
$160,000 $169,999 60%
$170,000 $179,999 40%
$180,000 $189,999 20%
If the tenant's annualized base rent for such period is over one
hundred eighty-nine thousand nine hundred ninety-nine dollars, no credit
shall be allowed under this paragraph. For purposes of this paragraph,
'base rent' shall be calculated without regard to any reduction in base
rent allowed by paragraph two of subdivision h of section 11-704 of this
chapter.
(6) For each tax year beginning on or after June first, two thousand
one, a credit shall be allowed against the tax imposed by this chapter
as follows: a tenant whose base rent is at least two hundred and fifty
thousand dollars but not more than three hundred thousand dollars shall
be allowed a credit in an amount determined by multiplying three and
nine-tenths percent of base rent by a fraction the numerator of which is
three hundred thousand dollars minus the amount of base rent and the
denominator of which is fifty thousand dollars. If the tenant's base
rent is over three hundred thousand dollars, no credit shall be allowed
under this paragraph. For purposes of this paragraph, 'base rent' shall
be calculated without regard to any reduction in base rent allowed by
paragraph two of subdivision h of section 11-704 of this chapter.
(b) (1) Where the base rent of a tenant is for a period of less than
one year, such base rent shall, for purposes of this section, be
determined as if it had been on an equivalent basis for the entire year.
The credits allowed under this section shall be deducted prior to the
deduction of any credit allowable under section 11-704.1 of this
chapter.
(2) For purposes of paragraphs four and five of subdivision (a) of
this section, base rent for the period specified in each of such
paragraphs shall be separately annualized as if it had been on an
equivalent basis for an entire year, irrespective of the actual base
rent for the tax year including the period specified in such paragraph.
Section 11-705
§ 11-705 Returns. a. Every tenant subject to tax under this chapter
shall file with the commissioner of finance a return with respect to the
taxes payable for the three month periods ending on the last days of
August, November and February of each year and a final return with
respect to the taxes payable for the tax year ending on the last day of
May of each year. Such returns shall be filed within twenty days from
the expiration of the period covered thereby. A tenant who is exempt
from the tax by reason of paragraph two of subdivision b of section
11-704 of this chapter shall nevertheless be required to file a final
return, provided, however, that for tax years beginning on or after June
first, nineteen hundred ninety-five and ending on or before May
thirty-first, nineteen hundred ninety-seven, no such final return shall
be required from such exempt tenant with respect to taxable premises if
(1) the tenant's rent for such premises, determined without regard to
any deduction from or reduction in rent or base rent allowed by this
chapter, does not exceed fifteen thousand dollars for the tax year and
(2) in the case of a tenant who has more than one taxable premises, the
aggregate rents for all such premises, determined without regard to any
deduction from or reduction in rent or base rent allowed by this
chapter, do not exceed fifteen thousand dollars for the tax year. For
tax years beginning on June first, nineteen hundred ninety-seven and
ending on or before May thirty-first, two thousand one, no such final
return shall be required from such exempt tenant with respect to any
taxable premises if (1) the tenant's rent for such premises, determined
without regard to any deduction from or reduction in rent or base rent
allowed by this chapter, does not exceed seventy-five thousand dollars
for the tax year and (2) the amount of rent received or due from any
subtenant of such exempt tenant with respect to such premises does not
exceed seventy-five thousand dollars for the tax year. For tax years
beginning on or after June first, two thousand one, no such final return
shall be required from such exempt tenant with respect to any taxable
premises if (1) the tenant's rent for such premises, determined without
regard to any deduction from or reduction in rent or base rent allowed
by this chapter, does not exceed two hundred thousand dollars for the
tax year and (2) the amount of rent received or due from any subtenant
of such exempt tenant with respect to such premises does not exceed two
hundred thousand dollars for the tax year. Notwithstanding anything in
this subdivision to the contrary, for tax periods beginning on or after
September first, nineteen hundred ninety-five, no return shall be
required pursuant to this subdivision with respect to any taxable
premises located in that part of the city specified in paragraph one of
subdivision h of section 11-704 of this chapter, and no such taxable
premises shall be taken into account for purposes of clause two of the
preceding sentence. The commissioner of finance may permit or require
returns (including final returns) to be made for other periods and upon
such dates as the commissioner may specify and if he or she deems it
necessary, in order to insure the payment of the tax imposed by this
chapter, the commissioner may require such returns to be made for
shorter periods than those prescribed by the foregoing provisions of
this section, and upon such dates as he or she may specify.
b. The commissioner of finance may by regulation require the filing of
information returns and supplemental information returns by landlords
and by tenants of taxable premises, whether or not they are required to
pay the tax imposed by this chapter, upon such dates or at such times as
the commissioner may specify if he or she deems the filing of such
information returns necessary for proper administration of this chapter.
c. The form of returns and information returns shall be prescribed by
the commissioner of finance and shall contain such information as the
commissioner may deem necessary for the proper administration of this
chapter. The commissioner of finance may require amended returns or
amended information returns to be filed within twenty days after notice
and to contain the information specified in the notice.
d. If a return or information return is not filed, or if a return of
any kind when filed is incorrect or insufficient on its face, the
commissioner of finance shall take the necessary steps to enforce the
filing of such a return or of a corrected return.
Section 11-706
§ 11-706 Payment of tax. a. The tax imposed by this chapter shall be
due and payable on or before the twentieth day of the calendar month
following the end of each tax period and shall be paid to the
commissioner of finance, as follows: The tax to be paid at such time
shall be based on the base rent for such tax period and the rate of tax
shall be the one which would be applicable if the base rent for such
period were the same for each tax period during the tax year, except
that the payment required to be made together with the final return or
at the time that the final return should be filed shall be the amount by
which the actual tax for the tax year exceeds the amounts previously
paid for the tax year.
b. Where the final return shows that the amount of tax paid for the
tax year exceeds the actual tax for such year, the commissioner of
finance shall make the appropriate refund as promptly as possible,
provided, however, that where the commissioner of finance has reason to
believe that the final return is inaccurate, the commissioner may
withhold the refund in whole or in part. The making of a refund pursuant
to this subdivision shall not prevent the commissioner of finance from
making a determination that additional tax is due or from pursuing any
other method to recover the full amount of the actual tax due for the
tax year.
c. Where a tenant ceases to do business the tax, as measured by the
tenant's base rent for the prior part of the tax year, shall be due
immediately, and the tenant shall file a final return, but, should the
tenant continue to pay rent for the taxable premises, the tenant shall
file the normally required returns and a final return for the tax year,
provided, however, that any such tax payment shall be applied in
reduction of the tax payments required to be made with such returns or
with the final return for such tax year.
Section 11-707
§ 11-707 Records to be kept. Every landlord of taxable premises and
every tenant of taxable premises shall keep records of rent paid and
received by him or her in such form as the commissioner of finance may
by regulation require, all leases or agreements which fix the rents or
rights of tenants of taxable premises, and such other records, receipts
and other papers relevant to the ascertainment of the tax due under this
chapter as the commissioner of finance may by regulation require. Such
records shall be offered for inspection and examination at any time upon
demand by the commissioner of finance. Such records, unless the
commissioner of finance consents to a sooner destruction or requires
that they be kept for a longer time, shall be preserved for a period of
three years except that leases or agreements which fix the rents or
rights of a tenant shall be kept for a period of three years after the
expiration of the tenancy thereunder.
Section 11-708
§ 11-708 Determination of tax. If a return required by this chapter is
not filed, or if a return when filed is incorrect or insufficient, the
commissioner of finance shall determine the amount of tax due from such
information as may be obtainable and, if necessary, may estimate the tax
on the basis of external indices. Notice of such determination shall be
given to the person liable for the payment of the tax. Such
determination shall finally and irrevocably fix the tax unless the
person against whom it is assessed, within ninety days after the giving
of notice of such determination or, if the commissioner of finance has
established a conciliation procedure pursuant to section 11-124 of the
code and the taxpayer has requested a conciliation conference in
accordance therewith, within ninety days from the mailing of a
conciliation decision or the date of the commissioner's confirmation of
the discontinuance of the conciliation proceeding, both (1) serves a
petition upon the conciliation of finance and (2) files a petition with
the tax appeals tribunal for a hearing, or unless the commissioner of
finance of the commissioner's own motion shall redetermine the same.
Such hearing and any appeal to the tax appeals tribunal sitting en banc
from the decision rendered in such hearing shall be conducted in the
manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to sections one hundred sixty-eight through one
hundred seventy-two of the charter. After such hearing the tax appeals
tribunal shall give notice of its decision to the person against whom
the tax is assessed and to the commissioner of finance. A decision of
the tax appeals tribunal sitting en banc shall be reviewable for error,
illegality or unconstitutionality or any other reason whatsoever by a
proceeding under article seventy-eight of the civil practice law and
rules if application therefor is made to the supreme court by the person
against whom the tax was assessed within four months after the giving of
the notice of such tax appeals tribunal decision, provided, however,
that any such proceeding under article seventy-eight of the civil
practice law and rules shall not be instituted by a taxpayer unless: (a)
the amount of any tax sought to be reviewed, with interest and penalties
thereon, if any, shall be first deposited and there is filed an
undertaking with the commissioner of finance, issued by a surety company
authorized to transact business in this state and approved by the
superintendent of insurance of this state as to solvency and
responsibility, in such amount as a justice of the supreme court shall
approve to the effect that if such proceeding be dismissed or the tax
confirmed the taxpayer will pay all costs and charges which may accrue
in the prosecution of such proceeding or (b) at the option of the
taxpayer such undertaking may be in a sum sufficient to cover the taxes,
interest and penalties stated in such decision plus the costs and
charges which may accrue against it in the prosecution of the
proceeding, in which event the taxpayer shall not be required to pay
such taxes, interest or penalties as a condition precedent to the
application.
Section 11-709
§ 11-709 Refunds. a. In the manner provided in this section the
commissioner of finance shall refund or credit, without interest, any
tax, penalty or interest erroneously, illegally or unconstitutionally
collected or paid, if written application to the commissioner of finance
for such refund shall be made within eighteen months from the date fixed
by this chapter for filing the return on which such payment was based or
within six months of the payment thereof, whichever of such periods
expire the later. Whenever a refund or credit is made or denied, the
commissioner of finance shall state his or her reason therefor and give
notice thereof to the taxpayer in writing. The commissioner of finance
may, in lieu of any refund required to be made, allow credit therefor on
payments due from the applicant.
b. Any determination of the commissioner of finance denying a refund
or credit pursuant to subdivision a of this section shall be final and
irrevocable unless the applicant for such refund or credit, within
ninety days from the mailing of notice of such determination, or, if the
commissioner of finance has established a conciliation procedure
pursuant to section 11-124 and the applicant has requested a
conciliation conference in accordance therewith, within ninety days from
the mailing of a conciliation decision or the date of the commissioner's
confirmation of the discontinuance of the conciliation proceeding, both
(1) serves a petition upon the commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing. Such petition for
a refund or credit, made as herein provided, shall be deemed an
application for a revision of any tax, penalty or interest complained
of. Such hearing of any appeal to the tax appeals tribunal sitting en
banc from the decision rendered in such hearing shall be conducted in
the manner and subject to the requirements prescribed by the tax appeals
tribunal pursuant to section one hundred sixty-eight through one hundred
seventy-two of the charter. After such hearing, the tax appeals tribunal
shall give notice of its decision to the applicant and to the
commissioner of finance. The applicant shall be entitled to institute a
proceeding pursuant to article seventy-eight of the civil practice law
and rules to review a decision of the tax appeals tribunal sitting en
banc if application to the supreme court be made therefor within four
months after the giving of notice of such decision, and provided, in the
case of an application by a taxpayer, that a final determination of tax
due was not previously made. Such a proceeding shall not be instituted
by a taxpayer unless an undertaking shall first be filed with the
commissioner of finance, in such amount and with such sureties as a
justice of the supreme court shall approve, to the effect that if such
proceeding be dismissed or the tax confirmed, the taxpayer will pay all
costs and charges which may accrue in the prosecution of the proceeding.
c. A person shall not be entitled to a revision, refund or credit
under this section of a tax, interest or penalty which had been
determined to be due pursuant to the provisions of section 11-708 of
this chapter where such person has had a hearing or an opportunity for a
hearing, as provided in said section, or has failed to avail himself or
herself of the remedies therein provided. No refund or credit shall be
made of a tax, interest or penalty paid after a determination by the
commissioner of finance made pursuant to section 11-708 of this chapter
unless it be found that such determination was erroneous, illegal or
unconstitutional, or otherwise improper, by the tax appeals tribunal
after a hearing, or, if such tax appeals tribunal affirms in whole or in
part the determination of the commissioner of finance, in a proceeding
under article seventy-eight of the civil practice law and rules,
pursuant to the provisions of said section, in which event refund or
credit without interest shall be made of the tax, interest or penalty
found to have been overpaid.
Section 11-710
§ 11-710 Remedies exclusive. The remedies provided by this chapter
shall be the exclusive remedies available to any person for the review
of tax liability imposed by this chapter; and no determination or
proposed determination of tax or determination on any application for
refund by the commissioner of finance, nor any decision by the tax
appeals tribunal or any of its administrative law judges, shall be
enjoined or reviewed by an action for declaratory judgment, an action
for money had and received or by any action or proceeding other than, in
the case of a decision by the tax appeals tribunal sitting en banc, a
proceeding under article seventy-eight of the civil practice law and
rules; provided, however, that a taxpayer may proceed by declaratory
judgment if he or she institutes suit within thirty days after a
deficiency assessment is made and pays the amount of the deficiency
assessment to the commissioner of finance prior to the institution of
such suit and posts a bond for costs as provided in section 11-708 of
this chapter.
Section 11-711
§ 11-711 Reserves. In cases where the taxpayer has applied for a
refund and has instituted a proceeding under article seventy-eight of
the civil practice law and rules to review a determination adverse to
the taxpayer on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
Section 11-712
§ 11-712 Proceedings to recover tax. a. Whenever any person shall fail
to pay any tax or penalty or interest imposed by this chapter as herein
provided, the corporation counsel shall, upon the request of the
commissioner of finance, bring or cause to be brought an action to
enforce payment of the same against the person liable for the same on
behalf of the city of New York in any court of the state of New York or
of any other state or of the United States. If, however, the
commissioner of finance in his or her discretion believes that a
taxpayer subject to the provisions of this chapter is about to cease
business, leave the state or remove or dissipate the assets out of which
tax or penalties might be satisfied and that any such tax or penalty
will not be paid when due, he or she may declare such tax or penalty to
be immediately due and payable and may issue a warrant immediately.
b. As an additional or alternate remedy, the commissioner of finance
may issue a warrant, directed to the city sheriff commanding the sheriff
to levy upon and sell the real and personal property of such person
which may be found within the city, for the payment of the amount
thereof, with any penalties and interest, and the cost of executing the
warrant, and to return such warrant to the commissioner of finance and
to pay to the commissioner the money collected by virtue thereof within
sixty days after the receipt of such warrant. The city sheriff shall,
within five days after the receipt of the warrant, file with the county
clerk a copy thereof, and thereupon such clerk shall enter in the
judgment docket the name of the person mentioned in the warrant and the
amount of the tax, penalties and interest for which the warrant is
issued and the date when such copy is filed. Thereupon the amount of
such warrant so docketed shall become a lien upon the title to and
interest in real and personal property of the person against whom the
warrant is issued. The city sheriff shall then proceed upon the warrant
in the same manner and with like effect as that provided by law in
respect to executions issued against property upon judgments of a court
of record, and for services in executing the warrant the sheriff shall
be entitled to the same fees which the sheriff may collect in the same
manner. In the discretion of the commissioner of finance a warrant of
like terms, force and effect may be issued and directed to any officer
or employee of the department of finance, and in the execution thereof
such officer or employee shall have all the powers conferred by law upon
sheriffs, but he or she shall be entitled to no fee or compensation in
excess of the actual expenses paid in the performance of such duty. If a
warrant is returned not satisfied in full, the commissioner of finance
may from time to time issue new warrants and shall also have the same
remedies to enforce the amount due thereunder as if the city had
recovered judgment therefor and execution thereon had been returned
unsatisfied.
c. Whenever there is made a sale, transfer or assignment in bulk of
any part or the whole of a stock of merchandise or of fixtures, or
merchandise and of fixtures pertaining to the conducting of the business
of the seller, transferor or assignor, otherwise than in the ordinary
course of trade and in the regular prosecution of said business, the
purchaser, transferee or assignee shall at least ten days before taking
possession of such merchandise, fixtures, or merchandise and fixtures,
or paying therefor, notify the commissioner of finance by registered
mail of the proposed sale and of the price, terms and conditions thereof
whether or not the seller, transferor or assignor, has represented to,
or informed the purchaser, transferee or assignee that it owes any tax
pursuant to this chapter and whether or not the purchaser, transferee or
assignee has knowledge that such taxes are owing, and whether any such
taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give
notice to the commissioner of finance as required by the preceding
paragraph, or whenever the commissioner of finance shall inform the
purchaser, transferee or assignee that a possible claim for such tax or
taxes exists, any sums of money, property or choses in action, or other
consideration, which the purchaser, transferee or assignee is required
to transfer over to the seller, transferor or assignor shall be subject
to a first priority right and lien for any such taxes theretofore or
thereafter determined to be due from the seller, transferor or assignor
to the city, and the purchaser, transferee or assignee is forbidden to
transfer to the seller, transferor or assignor any such sums of money,
property or choses in action to the extent of the amount of the city's
claim. For failure to comply with the provisions of this subdivision,
the purchaser, transferee or assignee, in addition to being subject to
the liabilities and remedies imposed under the provisions of section
forty-four of the personal property law, shall be personally liable for
the payment to the city of any such taxes theretofore or thereafter
determined to be due to the city from the seller, transferor or
assignor, and such liability may be assessed and enforced in the same
manner as the liability for tax under this chapter.
d. The commissioner of finance, if he or she finds that the interests
of the city will not thereby be jeopardized, and upon such conditions as
the commissioner of finance may require, may release any property from
the lien of any warrant or vacate such warrant for unpaid taxes,
additions to tax, penalties and interest filed pursuant to subdivision b
of this section, and such release or vacating of the warrant may be
recorded in the office of any recording officer in which such warrant
has been filed. The clerk shall thereupon cancel and discharge as of the
original date of docketing the vacated warrant.
Section 11-713
§ 11-713 General powers of the commissioner of finance. In addition to
the powers granted to the commissioner of finance in this chapter, the
commissioner is hereby authorized and empowered:
1. To make, adopt and amend rules and regulations appropriate to the
carrying out of this chapter and the purposes thereof;
2. To extend, for cause shown, the time for filing any return for a
period not exceeding ninety days; and to compromise disputed claims in
connection with the taxes hereby imposed;
3. To request information from the tax commission of the state on New
York or the treasury department of the United States relative to any
person; and to afford information to such tax commission or such
treasury department relative to any person;
4. To delegate the commissioner's functions hereunder to a deputy
commissioner of finance or other employee or employees of the
commissioner's department;
5. To assess, determine, revise and adjust the taxes imposed under
this chapter;
6. To require any tenant who uses premises for both residential
purposes and as taxable premises and who pays an undivided rent for the
entire premises so used to provide the commissioner with a signed and
notarized request to the United States director of internal revenue for
photostatic copies of the tenant's income tax return for any year when
the commissioner deems such income tax return necessary to determine the
rent ascribable to so much of such premises as is used as taxable
premises; and, if the tenant refuses to provide the commissioner with
such a signed written request, to treat the rent for the entire premises
as the rent for so much as is used as taxable premises;
7. To prescribe methods for determining how much of any tenant's base
rent is ascribable to a use which results in a reduction of the base
rent or for determining any other division of rent or of use of premises
necessary for the determination of the base rent or the amount of base
rent subject to tax under this chapter;
8. To authorize banks or trust companies which are depositories or
financial agents of the city to receive and give a receipt for any tax
imposed under this chapter in such manner, at such times, and under such
conditions as the commissioner of finance may prescribe; and the
commissioner of finance shall prescribe the manner, times and conditions
under which the receipt of such tax by such banks and trust companies is
to be treated as payment of such tax to the commissioner of finance.
Section 11-714
§ 11-714 Administration of oaths and compelling testimony. a. The
commissioner of finance, the commissioner's employees duly designated
and authorized by the commissioner, the tax appeals tribunal and any of
its duly designated and authorized employees shall have power to
administer oaths and take affidavits in relation to any matter or
proceeding in the exercise of their powers and duties under this
chapter. The commissioner of finance and the tax appeals tribunal shall
have power to subpoena and require the attendance of witnesses and the
production of books, papers and documents to secure information
pertinent to the performance of the duties of the commissioner or of the
tax appeals tribunal hereunder and of the enforcement of this chapter
and to examine them in relation thereto, and to issue commissions for
the examination of witnesses who are out of the state or unable to
attend before the commissioner or the tax appeals tribunal or excused
from attendance.
b. A justice of the supreme court either in court or at chambers shall
have power summarily to enforce by proper proceedings the attendance and
testimony of witnesses and the production and examination of books,
papers and documents called for by the subpoena of the commissioner of
finance or the tax appeals tribunal under this chapter.
c. Cross-reference; criminal penalties. For failure to obey subpoenas
or for testifying falsely, see section 11-4007 of this title; for
supplying false or fraudulent information, see section 11-4002 of this
title.
d. The officers who serve the summons or subpoena of the commissioner
of finance or the tax appeals tribunal hereunder and witnesses attending
in response thereto shall be entitled to the same fees as are allowed to
officers and witnesses in civil cases in courts of record, except as
herein otherwise provided. Such officers shall be the city sheriff, and
the sheriff's duly appointed deputies or any officers or employees of
the department of finance or the tax appeals tribunal, designated to
serve such process.
Section 11-715
§ 11-715 Interest and penalties. (a) Interest on underpayment;
quarterly return. If any amount of tax required to be paid together with
a return, other than the final return for a tax year, is not paid on or
before the last date prescribed for payment (without regard to any
extension of time granted for payment), interest on such amount at the
rate set by the commissioner of finance pursuant to subdivision (h) of
this section, or, if no rate is set, at the rate of seven and one-half
percent per annum, shall be paid for the period from such last date
until twenty days after the end of the tax year during which such
payments were due or until such prior time as the tax paid for the tax
year equals seventy-five percent of the full tax required to be paid for
the tax year. Such interest shall be paid with the final return for the
tax year to which it relates. In computing the amount of interest to be
paid, such interest shall be compounded daily. Interest under this
subdivision shall not be paid if the amount thereof is less than one
dollar.
(b) Interest on underpayment; final return. If any amount of tax
required to be paid together with the final return for a tax year is not
paid on or before the last date prescribed for payment (without regard
to any extension of time granted for payment), interest on such amount
at the rate set by the commissioner of finance pursuant to subdivision
(h) of this section, or, if no rate is set, at the rate of seven and
one-half percent per annum, shall be paid for the period from such last
date to the date of payment. In computing the amount of interest to be
paid, such interest shall be compounded daily. Interest under this
subdivision shall not be paid if the amount thereof is less than one
dollar.
(c) * (1) Failure to file final return. (A) In case of failure to file
a final return under this chapter on or before the prescribed date
(determined with regard to any extension of time for filing), unless it
is shown that such failure is due to reasonable cause and not due to
willful neglect, there shall be added to the amount required to be shown
as tax on such return five percent of the amount of such tax if the
failure is for not more than one month, with an additional five percent
for each additional month or fraction thereof during which such failure
continues, not exceeding twenty-five percent in the aggregate, and, in
addition thereto, where a tenant, with respect to any taxable premises,
is exempt from tax by reason of paragraph two of subdivision b of
section 11-704 of this chapter, there shall be imposed a penalty of one
hundred dollars.
(B) In the case of a failure to file a return of tax within sixty days
of the date prescribed for filing of such return (determined with regard
to any extension of time for filing), unless it is shown that such
failure is due to reasonable cause and not due to willful neglect, the
addition to tax under subparagraph (A) of this paragraph shall not be
less than the lesser of one hundred dollars or one hundred percent of
the amount required to be shown as tax on such return.
(C) For purposes of this paragraph, the amount of tax required to be
shown on the return shall be reduced by the amount of any part of the
tax which is paid on or before the date prescribed for payment of the
tax and by the amount of any credit against the tax which may be claimed
upon the return.
* NB Amended Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
(2) Failure to pay tax shown on final return. In case of failure to
pay the amount shown as tax on a final return required to be filed under
this chapter on or before the prescribed date (determined with regard to
any extension of time for payment), unless it is shown that such failure
is due to reasonable cause and not due to willful neglect, there shall
be added to the amount shown as tax on such return one-half of one
percent of the amount of such tax if the failure is not for more than
one month, with an additional one-half of one percent for each
additional month or fraction thereof during which such failure
continues, not exceeding twenty-five percent in the aggregate. For the
purpose of computing the addition for any month the amount of tax shown
on the return shall be reduced by the amount of any part of the tax
which is paid on or before the beginning of such month and by the amount
of any credit against the tax which may be claimed upon the return. If
the amount of tax required to be shown on a return is less than the
amount shown as tax on such return, this paragraph shall be applied by
substituting such lower amount.
(3) Failure to pay tax required to be shown on final return. In case
of failure to pay any amount in respect of any tax required to be shown
on a final return required to be filed under this chapter which is not
so shown (including a determination made pursuant to section 11-708 of
this chapter) within ten days of the date of a notice and demand
therefor, unless it is shown that such failure is due to reasonable
cause and not due to willful neglect, there shall be added to the amount
of tax stated in such notice and demand one-half of one percent of such
tax if the failure is not for more than one month, with an additional
one-half of one percent for each additional month or fraction thereof
during which such failure continues, not exceeding twenty-five percent
in the aggregate. For the purpose of computing the addition for any
month, the amount of tax stated in the notice and demand shall be
reduced by the amount of any part of the tax which is paid before the
beginning of such month.
* (4) Limitations on additions.
(A) With respect to any final return, the amount of the addition under
paragraph one of this subdivision shall be reduced by the amount of the
addition under paragraph two of this subdivision for any month to which
an addition applies under both paragraphs one and two. In any case
described in subparagraph (B) of paragraph one of this subdivision, the
amount of the addition under such paragraph one shall not be reduced
below the amount provided in such subparagraph.
(B) With respect to any final return, the maximum amount of the
addition permitted under paragraph three of this subdivision shall be
reduced by the amount of the addition under paragraph one of this
subdivision (determined without regard to subparagraph (B) of such
paragraph one) which is attributable to the tax for which the notice and
demand is made and which is not paid within ten days of such notice and
demand.
* NB Amended Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
* (d) Underpayment due to negligence. (1) If any part of an
underpayment of tax is due to negligence or intentional disregard of
this chapter or any rules or regulations hereunder (but without intent
to defraud), there shall be added to the tax a penalty equal to five
percent of the underpayment.
(2) There shall be added to the tax (in addition to the amount
determined under paragraph one of this subdivision) an amount equal to
fifty percent of the interest payable under subdivision (b) of this
section with respect to the portion of the underpayment described in
such paragraph one which is attributable to the negligence or
intentional disregard referred to in such paragraph one, for the period
beginning on the last date prescribed by law for payment of such
underpayment (determined without regard to any extension) and ending on
the date of the assessment of the tax (or, if earlier, the date of the
payment of the tax).
* NB Amended Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
* (e) Underpayment due to fraud. (1) If any part of an underpayment of
tax is due to fraud, there shall be added to the tax a penalty equal to
fifty percent of the underpayment.
(2) There shall be added to the tax (in addition to the penalty
determined under paragraph one of this subdivision) an amount equal to
fifty percent of the interest payable under subdivision (b) of this
section with respect to the portion of the underpayment described in
such paragraph one which is attributable to fraud, for the period
beginning on the last date prescribed by law for payment of such
underpayment (determined without regard to any extension) and ending on
the date of the assessment of the tax (or, if earlier, the date of the
payment of the tax).
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (c) or (d) of this section.
* NB Amended Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
(f) Additional penalty. Any person who, with fraudulent intent, shall
fail to pay any tax imposed by this chapter, or to make, render, sign or
certify any return, or to supply any information within the time
required by or under this chapter, shall be liable for a penalty of not
more than one thousand dollars, in addition to any other amounts
required under this chapter to be imposed, assessed and collected by the
commissioner of finance. The commissioner of finance shall have the
power, in his or her discretion, to waive, reduce or compromise any
penalty under this subdivision.
(g) The interest and penalties imposed by this section shall be paid
and disposed of in the same manner as other revenues from this chapter.
Unpaid interest and penalties may be enforced in the same manner as the
tax imposed by this chapter.
(h) (1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivisions (a)
and (b) of this section, but if no such rate of interest is set, such
rate shall be deemed to be set at seven and one-half percent per annum.
Such rate shall be the same for each subdivision and shall be the rate
prescribed in paragraph two of this subdivision but shall not be less
than seven and one-half percent per annum. Any such rate set by the
commissioner of finance shall apply to taxes, or any portion thereof,
which remain or become due on or after the date on which such rate
becomes effective and shall apply only with respect to interest computed
or computable for periods or portions of periods occurring in the period
in which such rate is in effect.
(2) General rule. The rate of interest set under this subdivision
shall be the sum of (i) the federal short-term rate as provided under
paragraph three of this subdivision, plus (ii) seven percentage points.
(3) Federal short-term rate. For purposes of this subdivision:
(A) The federal short-term rate for any month shall be the federal
short-term rate determined by the United States secretary of the
treasury during such month in accordance with subsection (d) of section
twelve hundred seventy-four of the internal revenue code for use in
connection with section six thousand six hundred twenty-one of the
internal revenue code. Any such rate shall be rounded to the nearest
full percent (or, if a multiple of one-half of one percent, such rate
shall be increased to the next highest full percent).
(B) Period during which rate applies.
(i) In general. Except as provided in clause (ii) of this
subparagraph, the federal short-term rate for the first month in each
calendar quarter shall apply during the first calendar quarter beginning
after such month. (ii) Special rule for the month of September, nineteen
hundred eighty-nine. The federal short-term rate for the month of April,
nineteen hundred eighty-nine shall apply with respect to setting the
rate of interest for the month of September, nineteen hundred
eighty-nine.
(4) Publication of interest rate. The commissioner of finance shall
cause to be published in the city record, and give other appropriate
general notice of, the interest rate to be set under this subdivision no
later than twenty days preceding the first day of the calendar quarter
during which such interest rate applies. The setting and publication of
such interest rate shall not be included within paragraph (a) of
subdivision five of section one thousand forty-one of the city charter
relating to the definition of a rule.
* (i) Miscellaneous. (1) The certificate of the commissioner of
finance to the effect that a tax has not been paid, that a return has
not been filed, or that information has not been supplied pursuant to
the provisions of this chapter shall be prima facie evidence thereof.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
* NB Amended Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
* (j) Substantial understatement of liability. If there is a
substantial understatement of tax for any tax year, there shall be added
to the tax an amount equal to ten percent of the amount of any
underpayment attributable to such understatement. For purposes of this
subdivision, there is a substantial understatement of tax for any tax
year if the amount of the understatement for the tax year exceeds the
greater of ten percent of the tax required to be shown on the final
return for the tax year or five thousand dollars. For purposes of the
preceding sentence, the term "understatement" means the excess of the
amount of the tax required to be shown on the final return for the tax
year, over the amount of the tax imposed which is shown on the return,
reduced by any rebate. The amount of such understatement shall be
reduced by that portion of the understatement which is attributable to
the tax treatment of any item by the taxpayer if there is or was
substantial authority for such treatment, or any item with respect to
which the relevant facts affecting the item's tax treatment are
adequately disclosed in the return or in a statement attached to the
return. The commissioner of finance may waive all or any part of the
addition to tax provided by this subdivision on a showing by the
taxpayer that there was reasonable cause for the understatement (or part
thereof) and that the taxpayer acted in good faith.
* NB Added Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
* (k) Aiding or assisting in the giving of fraudulent returns,
reports, statements or other documents. (1) Any person who, with the
intent that tax be evaded, shall, for a fee or other compensation or as
an incident to the performance of other services for which such person
receives compensation, aid or assist in, or procure, counsel, or advise
the preparation or presentation under, or in connection with any matter
arising under this chapter of any return, report, statement or other
document which is fraudulent or false as to any material matter, or
supply any false or fraudulent information, whether or not such falsity
or fraud is with the knowledge or consent of the person authorized or
required to present such return, report, statement or other document
shall pay a penalty not exceeding ten thousand dollars.
(2) For purposes of paragraph one of this subdivision, the term
"procures" includes ordering (or otherwise causing) a subordinate to do
an act, and knowing of, and not attempting to prevent, participation by
a subordinate in an act. The term "subordinate" means any other person
(whether or not a director, officer, employee, or agent of the taxpayer
involved) over whose activities the person has direction, supervision,
or control.
(3) For purposes of paragraph one of this subdivision, a person
furnishing typing, reproducing, or other mechanical assistance with
respect to a document shall not be treated as having aided or assisted
in the preparation of such document by reason of such assistance.
(4) The penalty imposed by this subdivision shall be in addition to
any other penalty provided by law.
* NB Added Ch. 765/85 § 54, language juxtaposed per Ch. 907/85 § 14
Section 11-716
§ 11-716 Returns to be secret. a. Except in accordance with proper
judicial order or as otherwise provided by law, it shall be unlawful for
the commissioner of finance, the department of finance of the city, any
officer or employee of the department of finance of the city, any person
engaged or retained by such department on an independent contract basis,
the tax appeals tribunal, any commissioner or employee of such tribunal,
or any person who, pursuant to this section, is permitted to inspect any
return or to whom a copy, an abstract or a portion of any return is
furnished, or to whom any information contained in any return is
furnished, to divulge or make known in any manner any information
relating to the business of a taxpayer contained in any return required
under this chapter. The officers charged with the custody of such
returns shall not be required to produce any of them or evidence of
anything contained in them in any action or proceeding in any court,
except on behalf of the commissioner of finance in an action or
proceeding under the provisions of this chapter, or on behalf of any
party to any action or proceeding under the provisions of this chapter
when the returns or facts shown thereby are directly involved in such
action or proceeding, in either of which events the courts may require
the production of, and may admit in evidence so much of said returns or
of the facts shown thereby, as are pertinent to the action or proceeding
and no more. Nothing herein shall be construed to prohibit the delivery
to a taxpayer or the taxpayer's duly authorized representative of a
certified copy of any return filed in connection with his or her tax;
nor to prohibit the delivery of such a certified copy of such return or
of any information contained in or relating thereto, to the United
States of America or any department thereof, the state of New York or
any department thereof, any agency or any department of the city of New
York provided the same is requested for official business; nor to
prohibit the inspection for official business of such returns by the
corporation counsel or other legal representatives of the city or by the
district attorney of any county within the city; nor to prohibit the
publication of statistics so classified as to prevent the identification
of particular returns or items thereof.
b. (1) Any officer or employee of the city who willfully violates the
provisions of subdivision a of this section shall be dismissed from
office and be incapable of holding any public office in this city for a
period of five years thereafter.
(2) Cross-reference: For criminal penalties, see chapter forty of this
title.
c. This section shall be deemed a state statute for purposes of
paragraph (a) of subdivision two of section eighty-seven of the public
officers law.
d. Notwithstanding anything in subdivision a of this section to the
contrary, if a taxpayer has petitioned the tax appeals tribunal for
administrative review as provided in section one hundred seventy of the
charter, the commissioner of finance shall be authorized to present to
the tribunal any report or return of such taxpayer, or any information
contained therein or relating thereto, which may be material or relevant
to the proceeding before the tribunal. The tax appeals tribunal shall be
authorized to publish a copy or a summary of any decision rendered
pursuant to section one hundred seventy-one of the charter.
Section 11-717
§ 11-717 Notices and limitation of time. a. Any notice authorized or
required under the provisions of this chapter may be given to the person
for whom it is intended by mailing it in a postpaid envelope addressed
to such person at the address given in the last return filed by such
person pursuant to the provisions of this chapter or in any application
made by such person or if no return has been filed or application made,
then to such address as may be obtainable. The mailing of a notice as in
this paragraph provided for shall be presumptive evidence of the receipt
of the same by the person to whom addressed. Any period of time which is
determined according to the provisions of this chapter by the giving of
notice shall commence to run from the date of mailing of such notice as
in this subdivision provided.
b. The provisions of the civil practice law and rules or any other law
relative to limitations of time for the enforcement of a civil remedy
shall not apply to any proceeding or action taken by the city to levy,
appraise, assess, determine or enforce the collection of any tax or
penalty provided by this chapter. However, except in the case of a
wilfully false or fraudulent return with intent to evade the tax, no
assessment of additional tax shall be made after the expiration of more
than three years from the date of the final return for the tax year to
which the assessment relates; provided, however, that where no return
has been made as provided by law, the tax may be assessed at any time.
c. Where before the expiration of the period prescribed herein for the
assessment of an additional tax, a person has consented in writing that
such period be extended, the amount of such additional tax due may be
determined at any time within such extended period. The period so
extended may be further extended by subsequent consents in writing made
before the expiration of the extended period.
d. If any return, claim, statement, notice, application, or other
document required to be filed, or any payment required to be made,
within a prescribed period or on or before a prescribed date under
authority of any provision of this chapter is, after such period or such
date, delivered by United States mail to the commissioner of finance,
the tax appeals tribunal, bureau, office, officer or person with which
or with whom such document is required to be filed, or to which or to
whom such payment is required to be made, the date of the United States
postmark stamped on the envelope shall be deemed to be the date of
delivery. This subdivision shall apply only if the postmark date falls
within the prescribed period or on or before the prescribed date for the
filing of such document, or for making the payment, including any
extension granted for such filing or payment, and only if such document
or payment was deposited in the mail, postage prepaid, properly
addressed to the commissioner of finance, the tax appeals tribunal,
bureau, office, officer or person with which or with whom the document
is required to be filed or to which or to whom such payment is required
to be made. If any document is sent by United States registered mail,
such registration shall be prima facie evidence that such document was
delivered to the commissioner of finance, the tax appeals tribunal,
bureau, office, officer or person to which or to whom addressed, and the
date of registration shall be deemed the postmark date. The commissioner
of finance or, where relevant, the tax appeals tribunal is authorized to
provide by regulation the extent to which the provisions of the
preceding sentence with respect to prima facie evidence of delivery and
the postmark date shall apply to certified mail. Except as provided in
subdivision f of this section, this subdivision shall apply in the case
of postmarks not made by the United States postal service only if and to
the extent provided by regulation of the commissioner of finance or,
where relevant, the tax appeals tribunal.
e. When the last day prescribed under authority of this chapter
(including any extension of time) for performing any act falls on a
Saturday, Sunday or legal holiday in the state, the performance of such
act shall be considered timely if it is performed on the next succeeding
day which is not a Saturday, Sunday or legal holiday.
f. (1) Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the secretary of the treasury of the United States
pursuant to section seventy-five hundred two of the internal revenue
code and any reference in subdivision d of this section to a United
States postmark shall be treated as including a reference to any date
recorded or marked in the manner described in section seventy-five
hundred two of the internal revenue code by a designated delivery
service. If the commissioner of finance finds that any delivery service
designated by such secretary is inadequate for the needs of the city,
the commissioner of finance may withdraw such designation for purposes
of this title. The commissioner of finance may also designate additional
delivery services meeting the criteria of section seventy-five hundred
two of the internal revenue code for purposes of this title, or may
withdraw any such designation if the commissioner of finance finds that
a delivery service so designated is inadequate for the needs of the
city. Any reference in subdivision d of this section to the United
States mail shall be treated as including a reference to any delivery
service designated by the commissioner of finance and any reference in
subdivision d of this section to a United States postmark shall be
treated as including a reference to any date recorded or marked in the
manner described in section seventy-five hundred two of the internal
revenue code by a delivery service designated by the commissioner of
finance. Notwithstanding the foregoing, any withdrawal of designation or
additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
(2) Any equivalent of registered or certified mail designated by the
United States secretary of the treasury, or as may be designated by the
commissioner of finance pursuant to the same criteria used by such
secretary for such designations pursuant to section seventy-five hundred
two of the internal revenue code, shall be included within the meaning
of registered or certified mail as used in subdivision d of this
section. If the commissioner of finance finds that any equivalent of
registered or certified mail designated by such secretary or the
commissioner of finance is inadequate for the needs of the city, the
commissioner of finance may withdraw such designation for purposes of
this title. Notwithstanding the foregoing, any withdrawal of designation
or additional designation by the commissioner of finance shall not be
effective for purposes of service upon the tax appeals tribunal, unless
and until such withdrawal of designation or additional designation is
ratified by the president of the tax appeals tribunal.
Section 11-718
§ 11-718 Construction and enforcement. This chapter shall be construed
in conformity with chapter two hundred fifty-seven of the laws of
nineteen hundred sixty-three, pursuant to which it is enacted.