Section 11-1101
§ 11-1101 Definitions. When used in this chapter the following terms
shall mean or include:
1. "Person." Includes any individual, partnership, society,
association, joint-stock company, corporation, estate, receiver, lessee,
trustee, assignee, assignee of rents, referee, or any other person
acting in a fiduciary or representative capacity, whether appointed by a
court or otherwise, and any combination of individuals.
2. "Comptroller." The comptroller of the city.
3. "Commissioner of finance." The commissioner of finance of the city.
4. "Gross income." All receipts received in or by reason of any sale
made including receipts from the sale of residuals and by-products
(except sale of real property) or service rendered in the city,
including cash, credits and property of any kind or nature (whether or
not such sale is made or such service is rendered for profit) without
any deduction therefrom on account of the cost of the property sold, the
cost of material used, labor or services, delivery costs, any other
costs whatsoever, interest or discount paid, or any other expense
whatsoever; also profits from the sale of securities; also profits from
the sale of real property growing out of the ownership or use of or
interest in such property; also profit from the sale of personal
property (other than property of a kind which would properly be included
in the inventory of the taxpayer if on hand at the close of the taxable
period for which a return is made); also receipts from interest,
dividends and royalties without any deductions therefrom for any expense
whatsoever incurred in connection with the receipt thereof, and also
gains or profits from any source whatsoever; but shall not include gross
income of railroads from the transportation of freight, gross income
from the operation of hotels, multiple dwellings or office buildings by
persons in the business of operating or leasing sleeping or parlor
railroad cars or of operating railroads other than street surface, rapid
transit, subway and elevated railroads, or interest or dividends
received from a corporation by such persons or by persons subject to
taxation under the provisions of section one hundred eighty-six-a of the
tax law. Rents or rentals shall not be deemed to be gross receipts
subject to tax, except rents or rentals derived from facilities used in
the public service; provided, however, that in the case of persons in
the business of operating or leasing sleeping or parlor railroad cars or
of operating railroads other than street surface, rapid transit, subways
and elevated railroads, such last-mentioned rents or rentals derived
from other such utilities with respect to the operation of terminal
facilities shall not be deemed to be gross income subject to tax except
for the amount in excess of a user proportion of New York city real
property and special franchise taxes and expenses of maintenance and
operation. Notwithstanding anything to the contrary in this subdivision
or any other provision of law, for taxable periods beginning on or after
August first, two thousand two, gross income shall include eighty-four
percent of charges for the provision of mobile telecommunications
services where the place of primary use of the mobile telecommunications
services is within the territorial limits of the city except to the
extent that such inclusion would result in the taxation of charges for
the provision of mobile telecommunications services that is prohibited
by federal law.
5. "Gross operating income." Includes receipts received in or by
reason of any sale made or service rendered, of the property and
services specified in subdivision seven of this section in the city,
including cash, credits and property of any kind or nature (whether or
not such sale is made or such service is rendered for profit), without
any deduction therefrom on account of the cost of the property sold, the
cost of materials used, labor or other services, delivery costs or any
other costs whatsoever, interest or discount paid or any other expenses
whatsoever, provided however, that if a vendor of utility service
purchases gas, electricity, steam, water or refrigeration or gas,
electric, steam, water or refrigeration service in a transaction the
receipts from which are not subject to the tax imposed under this
chapter, the gross operating income derived by such vendor of utility
service from the resale of such gas, electricity, steam, water or
refrigeration or such gas, electric, steam, water or refrigeration
service to its tenants as an incident to such vendor's activity of
renting premises to tenants, shall, if subject to the tax imposed under
this chapter on such vendor, be conclusively presumed to be equal to the
amount of such vendor's cost (including any associated transportation
cost) for the purchase of such gas, electricity, steam, water or
refrigeration or gas, electric, steam, water or refrigeration service
for resale by such vendor. Notwithstanding anything to the contrary in
this subdivision or any other provision of law, for taxable periods
beginning on or after August first, two thousand two, gross operating
income shall include eighty-four percent of charges for the provision of
mobile telecommunications services where the place of primary use of the
mobile telecommunications services is within the territorial limits of
the city except to the extent that such inclusion would result in the
taxation of charges for the provision of mobile telecommunications
services that is prohibited by federal law.
6. "Utility." Every person subject to the supervision of the
department of public service and, for taxable periods beginning on or
after August first, two thousand two, every person, whether or not
supervised by the department of public service, eighty percent or more
of the gross receipts of which consists of charges for the provision of
mobile telecommunications services to customers. Notwithstanding
anything to the contrary in any other provision of law, for purposes of
this subdivision, the gross receipts of a person shall not include the
gross receipts of any other related or unrelated person.
7. "Vendor of utility services." Every person not subject to the
supervision of the department of public service, and not otherwise a
utility as defined in subdivision six of this section, who furnishes or
sells gas, electricity, steam, water or refrigeration, or furnishes or
sells gas, electric, steam, water, refrigeration or telecommunications
services, or who operates omnibuses (whether or not such operation is on
the public streets); regardless of whether such furnishing, selling or
operation constitutes the main activity of such person or is merely
incidental thereto.
8. "Return." Includes any return filed or required to be filed as
herein provided.
9. "Telecommunications services." Telephony or telegraphy, or
telephone or telegraph service, including, but not limited to, any
transmission of voice image, data, information and paging, through the
use of wire, cable, fiber-optic, laser, microwave, radio wave, satellite
or similar media or any combination thereof and shall include services
that are ancillary to the provision of telephone service (such as, but
not limited to, dial tone, basic service, directory information, call
forwarding, caller-identification, call waiting and the like) and also
include any equipment and services provided therewith; provided,
however, that the definition of telecommunication services shall not
apply to separately stated charges for any service that alters the
substantive content of the message received by the recipient from that
sent; and that such services shall not include (i) cable television
services that consist of the transmitting to subscribers of programs
broadcast by one or more television or radio stations or any other
programs originated by any person by means of wire, cable, microwave or
any other means or (ii) air safety and navigation services where such
telecommunication service is provided by an organization, at least
ninety percent of which (if a corporation, ninety percent of the voting
stock of which) is owned, directly or indirectly, by air carriers, and
which organization's principal function is to fulfill the requirements
of (a) the federal aviation administration (or the successor thereto) or
(b) the international civil aviation organization (or the successor
thereto), relating to the existence of a communication system between
aircraft and dispatcher, aircraft and air traffic control or ground
station and ground station (or any combination of the foregoing) for the
purposes of air safety and navigation.
10. "Limited fare omnibus company." An omnibus company whose principal
source of revenue is derived from the daily transportation of passengers
wholly within the city on a route or zoned portion thereof pursuant to a
franchise agreement with, or consent of, the city, at the following
fares: for the period from August first, nineteen hundred sixty-five
until and including December thirty-first, nineteen hundred
seventy-five, at a fare not in excess of thirty-five cents per
passenger; for the period from January first, nineteen hundred
seventy-six until and including June twenty-seventh, nineteen hundred
eighty, at a fare not in excess of fifty cents per passenger; for the
period from June twenty-eighth, nineteen hundred eighty until and
including August thirty-first, nineteen hundred eighty, at a fare not in
excess of sixty cents per passenger; for the period from September
first, nineteen hundred eighty and thereafter, at a fare not in excess
of the regular rate of fare charged per passenger for comparable service
both local and express on regular rapid transit and surface lines
operated by the New York city transit authority. For purposes of this
subdivision, the term "regular rate of fare" shall be exclusive of fares
for special train or bus service, or additional charges for bridge or
tunnel tolls or transfer privileges.
11. "Commuter service." Mass transportation service (exclusive of
limited stop service to airports, racetracks or any place where
entertainment, amusement or sport activities are held or where
recreational facilities are supplied) provided pursuant to a franchise
with, or consent of, the city of New York.
12. "Tax appeals tribunal." The tax appeals tribunal established by
section one hundred sixty-eight of the charter.
13. "Base Year." Means the calendar year ending immediately prior to
the calendar year containing the taxable period or periods for which a
return is required to be filed pursuant to the provisions of section
11-1104 of this chapter.
14. "Taxable Period." Means the period for which a return is required
to be filed pursuant to the provisions of this chapter and shall be
either (i) the semiannual period beginning the first day of January or
the first day of July of the calendar year, or (ii) the calendar month.
15. "Premises." Means for purposes of section 11-1102 of this chapter,
any real property or part thereof, and any structure thereon or space
therein.
16. "Tenant." Means a person paying, or required to pay, rent for
premises as a lessee, sublessee, licensee or concessionaire.
17. "Mobile telecommunications services." Telecommunications services
that are commercial mobile radio services.
18. "Commercial mobile radio services." Commercial mobile radio
services as defined in section 20.3 of title 47 of the Code of Federal
Regulations as in effect on June first, nineteen hundred ninety-nine.
19. "Charges for mobile telecommunications services." Any charge for,
or associated with, the provision of mobile telecommunications services
and any charge for, or associated with, a service provided as an adjunct
to mobile telecommunications services that is billed to the customer by
or for the customer's home service provider regardless of whether
individual transmissions originate or terminate within the licensed
service area of the home service provider.
20. "Place of primary use." The street address representative of where
the customer's use of the mobile telecommunications services primarily
occurs, which must be (i) the residential street address or the primary
business street address of the customer; and (ii) within the licensed
service area of the home service provider.
21. "Licensed service area." The geographic area in which the home
service provider is authorized by law or contract to provide commercial
mobile radio services to the customer.
22. "Home service provider." The facilities-based carrier or reseller
with which the customer contracts for the provision of mobile
telecommunications services.
23. "Customer." The person or entity that contracts with the home
service provider for mobile telecommunications services. If the end user
of mobile telecommunications services is not the contracting party,
then, solely for purposes of subdivision twenty of this section, the
term "customer" shall mean the end user of the mobile telecommunications
services. The term customer does not include a reseller of mobile
telecommunications services, or a serving carrier under an arrangement
to serve the customer outside the home service provider's licensed
service area.
24. "Reseller." A provider who purchases telecommunications services
from another telecommunications service provider and then resells, uses
as a component part of, or integrates the purchased services into a
mobile telecommunications service. The term reseller does not include a
serving carrier with which a home service provider arranges for the
services to its customers outside the home service provider's licensed
service area.
* 25. "Serving carrier." A facilities-based carrier providing mobile
telecommunications service to a customer outside a home service
provider's or reseller's licensed service area.
* NB There are 2 sb 25's
* (25) "Cogeneration facility" means (i) a facility that was in
operation before January first, two thousand four and that produces
electric energy and steam or other forms of useful energy (such thermal
energy) that are supplied to and used by tenants and/or occupants of a
cooperative corporation for industrial, commercial, or residential
heating or cooling purposes; or (ii) a cogeneration facility, as defined
in clause (i) of this subparagraph, that has been replaced by any other
facility used to generate electricity and steam or other forms of useful
energy (such as thermal energy), when such electricity and steam or
other forms of useful energy (such as thermal energy) are supplied to
and used by tenants and/or occupants of a cooperative corporation.
* NB There are 2 sb 25's
* 26. "Enhanced zip code." A United States postal zip code of nine or
more digits.
* NB There are 2 sb 26's
* (26) "Cooperative corporation" means a corporation organized under
the laws of New York, at least some of the stockholders of which are
entitled, by reason of the stockholders' ownership interest of stock in
the corporation, to occupy for dwelling purposes an apartment in a
building owned by the corporation pursuant to a lease or occupancy
agreement with the corporation.
* NB There are 2 sb 26's
Section 11-1102
§ 11-1102 Imposition of excise tax. a. Notwithstanding any other
provisions of law to the contrary, for the privilege of exercising its
franchise or franchises, or of holding property, or of doing business in
the city, on or after August first, nineteen hundred sixty-five, every
utility shall pay to the commissioner of finance an excise tax which
shall be equal to two per centum of its gross income until and including
December thirty-first, nineteen hundred sixty-five, and shall be equal
to two and thirty-five hundredths per centum thereafter, except that the
rate as to persons engaged in the business of operating omnibuses with a
carrying capacity of more than seven persons shall be one per centum
until and including December thirty-first, nineteen hundred sixty-five,
and one and seventeen hundredths per centum thereafter, and except that
as to persons engaged in the business of operating or leasing sleeping
and parlor railroad cars or of operating railroads other than street
surface, rapid transit, subway and elevated railroads, the rate shall be
three per centum until and including December thirty-first, nineteen
hundred sixty-five, and three and fifty-two one hundredths per centum
thereafter, and every vendor of utility services in the city shall pay
to the commissioner of finance an excise tax which shall be equal to two
per centum of its gross operating income until and including December
thirty-first, nineteen hundred sixty-five, and shall be equal to two and
thirty-five one hundredths per centum thereafter, except that as to
persons engaged in the business of operating omnibuses with a carrying
capacity of more than seven persons other than omnibuses used
exclusively for the transportation of children to and from schools
operated under contracts made pursuant to the provisions of the
education law, and not subject to the jurisdiction of the department of
public service, the rate shall be one per centum of its gross operating
income until and including December thirty-first, nineteen hundred
sixty-five, and one and seventeen hundredths per centum thereafter. Such
tax shall be in addition to any and all other taxes, charges and fees
imposed by any other provision of law and shall be paid at the time and
in the manner hereinafter provided, but any person to the extent that it
is subject to tax hereunder shall not be liable to any tax under any
other of the local laws of the city enacted pursuant to chapter
ninety-three of the laws of nineteen hundred sixty-five as amended, or
article two-b of the general city law, with respect to its gross income
or gross operating income hereunder taxed, as the case may be.
b. So much of the gross income of a utility shall be excluded from the
measure of the tax imposed by this chapter, as is derived from sales for
resale to vendors of utility services validly subject to the tax imposed
by this chapter, except to the extent that such gross income is derived
from sales of gas, electricity, steam, water or refrigeration or sales
or rendering of gas, electric, steam, water or refrigeration service to
a vendor of utility services for resale to its tenants as an incident to
such vendor's activity of renting premises to tenants.
c. For the purpose of proper administration of this chapter and to
prevent evasion of the tax hereby imposed, it shall be presumed that the
gross income or gross operating income of any person taxable hereunder
is taxable and is derived from business conducted wholly within the
territorial limits of the city until the contrary is established, and
the burden of proving that any part of its gross income or gross
operating income is not so derived shall be upon such person.
Notwithstanding anything to the contrary in the preceding sentence or in
any provision of section twenty-b of the general city law or any other
provision of law, for taxable periods beginning on or after August
first, two thousand two, gross income and gross operating income derived
from the provision of mobile telecommunications services shall be deemed
to be derived from business conducted wholly within the territorial
limits of the city where the place of primary use of the mobile
telecommunications services is within the territorial limits of the
city.
d. The tax imposed by this chapter shall be inapplicable to the gross
income received by a limited fare omnibus company until and including
August thirty-first, nineteen hundred eighty. Thereafter, such tax shall
be applicable to such gross income received as follows: (1) for gross
income received from commuter service from September first, nineteen
hundred eighty until and including December thirty-first, nineteen
hundred eighty-three, the rate of tax shall be one hundredth of one per
centum; (2) for gross income received from commuter service from January
first, nineteen hundred eighty-four and thereafter, the rate of tax
shall be one tenth of one per centum; and (3) for gross income received
from all other sources, the rate of tax shall be as provided in
subdivision a of this section.
e. The gross operating income of a vendor of utility services derived
from sales to its tenants of gas, electricity, steam, water, or
refrigeration or sales or rendering to its tenants of gas, electric,
steam, water or refrigeration service, as an incident to such vendor's
activity of renting premises to tenants, shall be excluded from the
measure of the tax imposed by this chapter, but, with regard to sales to
its tenants of gas, electricity, or steam or sales or rendering to its
tenants of gas, electric or steam service, only to the extent that the
tax imposed by this chapter has been validly paid or accrued with
respect to a prior sale of such gas, electricity or steam or sale or
rendering of gas, electric or steam service.
f. (1) Notwithstanding anything contained in this chapter to the
contrary, for taxable periods beginning on or after August first, two
thousand two, if a partnership is subject to the tax imposed by this
chapter as a utility or as a vendor of utility services, no person who
is a partner in such a partnership shall be subject to the tax imposed
by this chapter on such partner's distributive share of the gross income
or gross operating income of such partnership.
(2) If a person is a partner in a partnership subject to the tax
imposed by this chapter and that person is separately subject to the
supervision of the state department of public service or is a utility or
a vendor of utility services based on its activities exclusive of any
activities of such partnership, for taxable periods beginning on or
after August first, two thousand two, such person shall be subject to
the tax imposed by this chapter only on its separate gross income or
separate gross operating income, which shall not include such person's
distributive share of the gross income or gross operating income of such
partnership.
(3) For purposes of this subdivision, the term "partner" shall include
a person who receives a distributive share of the gross income or gross
operating income, directly or indirectly through one or more tiers of
partnerships, of a partnership subject to the tax imposed by this
chapter.
(g) Notwithstanding anything else contained in this chapter to the
contrary, for the taxable periods beginning on or after January 1, 2006,
if a cooperative corporation containing at least fifteen hundred
apartments furnishes or sells electricity, steam, refrigeration or
water, or furnishes or sells electric, steam, refrigeration or water
services that are (i) metered, (ii) generated or produced by a
cogeneration facility owned or operated by such cooperative corporation,
and (iii) such electricity, steam, refrigeration or water and/or
electric, steam, refrigeration or water services are distributed to
tenants and/or occupants of a cooperative corporation, then such
cooperative corporation shall pay to the commissioner of finance an
excise tax which shall be equal to zero per centum of its gross income
or its gross operating income, as the case may be.
Section 11-1103
§ 11-1103 Records to be kept. Every person subject to tax hereunder
shall keep records of its business and in such form as the commissioner
of finance may by regulation require. Such records shall be offered for
inspection and examination at any time upon demand by such commissioner
or his or her duly authorized agent or employee and shall be preserved
for a period of three years, except that the commissioner of finance may
consent to their destruction within that period or may require that they
be kept longer.
Section 11-1104
§ 11-1104 Returns; requirements as to. a. Except as otherwise provided
in subdivision e of this section with respect to taxable periods
beginning after nineteen hundred ninety-eight, on or before the
twenty-fifth day of September, nineteen hundred sixty-five, and on or
before the twenty-fifth day of every month thereafter, every person
subject to tax hereunder shall file a return with the commissioner of
finance on a form to be prescribed by such commissioner. Such return
shall state the gross income or gross operating income as the case may
be for the preceding calendar month, and shall contain any other data,
information or other matter which the commissioner of finance may
require to be included therein. The commissioner of finance may require
at any further time a supplemental return hereunder, which shall contain
any data upon such matters as such commissioner may specify.
Notwithstanding the foregoing and notwithstanding the provisions of
subdivision e of this section, a vendor of utility services, all of
whose gross operating income is excluded from the measure of the tax
imposed by this chapter pursuant to subdivision e of section 11-1102 of
this chapter during any taxable period, shall not be required to file a
return for such taxable period, provided, however, that on or before the
first day of September of each year, any such vendor of utility services
who was not required to file a return for any taxable period during the
period covered by the statement required to be filed by such date
pursuant to subdivision a of section 11-208.1 of this title shall file
an information return covering such period in such form and containing
such information as the commissioner of finance may specify.
b. The commissioner of finance may require amended returns to be filed
within twenty days after notice and to contain the information specified
in the notice.
c. If a return required by this chapter is not filed or if a return
when filed is incorrect or insufficient on its face, the commissioner of
finance shall take the necessary steps to enforce the filing of such
return or of a corrected return.
d. Where the state tax commission changes or corrects a taxpayer's
sales and compensating use tax liability with respect to the purchase or
use of items for which a sales or compensating use tax credit against
the tax imposed by this chapter was claimed, the taxpayer shall report
such change or correction to the commissioner of finance within ninety
days of the final determination of such change or correction, or as
required by the commissioner of finance, and shall concede the accuracy
of such determination or state wherein it is erroneous. Any taxpayer
filing an amended return or report with the state tax commission
relating to the purchase or use of such items shall also file within
ninety days thereafter a copy of such amended return or report with the
commissioner of finance.
e. With respect to taxable periods beginning after nineteen hundred
ninety-eight, notwithstanding the provisions of subdivision a of this
section, if the amount of tax imposed hereunder on any person in the
base year does not exceed one hundred thousand dollars, the taxable
period for which such person is required to file a return is the
semiannual period described in paragraph i of subdivision fourteen of
section 11-1101 of this chapter, and such person shall file a return for
each semiannual period of the first calendar year beginning after the
base year on or before the twenty-fifth day of the month following the
end of each such taxable period. Such return shall be filed with the
commissioner of finance on a form to be prescribed by such commissioner.
Such return shall state the gross income or gross operating income as
the case may be for the preceding taxable period and shall contain any
other data, information or other matter which the commissioner of
finance may require to be included therein. The commissioner of finance
may require at any further time a supplemental return hereunder, which
shall contain any data upon such matters as such commissioner may
specify. For the purposes of this subdivision, if the amount of tax
imposed hereunder on such person in the base year is for a period of
less than one year, the amount of tax imposed on such person shall be
annualized by multiplying the amount of tax imposed by a fraction, the
denominator of which is the number of months or parts thereof during
which the person was subject to the tax imposed hereunder and the
numerator of which is twelve. Notwithstanding the foregoing provisions
of this subdivision, a person that first becomes subject to the tax
hereunder shall file a return for each month in the calendar year in
which such person first becomes subject to such tax in accordance with
subdivision a of this section.
Section 11-1105
§ 11-1105 Payment of tax; credit for certain sales and compensating
use taxes. a. At the time of filing each return, as provided under
section 11-1104 of this chapter, each person taxable hereunder shall pay
to the commissioner of finance the taxes imposed by this chapter upon
its gross income or gross operating income, as the case may be, for the
taxable period covered by such return, less any credit to which such
person may be entitled under subdivision b of this section. Such taxes
shall be due and payable on the last day on which the return for such
period is required to be filed, regardless of whether a return is filed
or whether the return which is filed correctly indicates the amount of
tax due.
b. (1) A taxpayer shall be allowed a credit against the taxes imposed
by this chapter for the amount of sales and compensating use taxes
imposed by section eleven hundred seven of the tax law which became
legally due on or after, and which were paid on or after, July first,
nineteen hundred seventy-seven but within the taxable period for which a
credit is claimed, with respect to the purchase or use by the taxpayer
of machinery or equipment for use or consumption directly and
predominantly in the production of steam for sale, by manufacturing,
processing, generating, assembling, refining, mining or extracting, or
telephone central office equipment or station apparatus or comparable
telegraph equipment for use directly and predominantly in receiving at
destination or initiating and switching telephone or telegraph
communication, but not including parts with a useful life of one year or
less or tools or supplies used in connection with such machinery,
equipment or apparatus.
(2) The amount of the credit provided in paragraph one of this
subdivision shall be limited to the amount of such sales and
compensating use taxes paid during the taxable period covered by the
return under this chapter on which the credit is taken less the amount
of any credit or refund of such sales and compensating use taxes during
such taxable period. If such credit exceeds the amount of tax under this
chapter payable for the taxable period in question, such excess amount
shall be refunded or credited except in the case of a vendor of utility
services who is entitled to a credit and/or refund for such sales and
compensating use taxes under chapter five or six of this title. The
credit allowed under this subdivision shall be deemed an erroneous
payment of tax by the taxpayer to be credited or refunded in accordance
with the provisions of section 11-1108 of this chapter, except as
otherwise provided in the previous sentence.
(3) Where the taxpayer receives a refund or credit of any tax imposed
under section eleven hundred seven of the tax law for which the taxpayer
has claimed a credit under the provisions of this subdivision in a prior
taxable period, the amount of such refund or credit shall be added to
the tax imposed by section 11-1102 of this chapter of the taxable period
in which such refund or credit of tax under section eleven hundred seven
of the tax law is received.
Section 11-1105.1
§ 11-1105.1 Credit for rebates of charges for energy. A taxpayer shall
be allowed a credit against the amount of taxes imposed by this chapter
for the amount of special rebates and discounts made in accordance with
the provisions of section 22-602 of this chapter and for the amount of
special rebates and discounts made in accordance with the provisions of
section twenty-five-bb of the general city law. Such credit shall be
applied against the amount of tax otherwise required to be paid as
provided in subdivision a of section 11-1105 of this chapter and shall
be claimed for the taxable period immediately succeeding the taxable
period in which such rebates or discounts are made.
Section 11-1105.2
§ 11-1105.2 Relocation and employment assistance program credit. (a) A
taxpayer that has obtained the certifications required by chapter six-B
of title twenty-two of the code shall be allowed a credit against the
tax imposed by this chapter, provided, however, that a taxpayer that is
a vendor of utility services shall not be allowed the credit against the
tax imposed by this chapter unless it elects as provided in subdivision
(d) of section 22-622 of the code to take the credit against the tax
imposed by this chapter. The amount of the credit shall be the amount
determined by multiplying one thousand dollars or, in the case of an
eligible business that has obtained pursuant to chapter six-B of such
title twenty-two a certification of eligibility dated on or after July
first, two thousand, for a relocation to eligible premises located
within a revitalization area defined in subdivision (n) of section
22-621 of the code, three thousand dollars, by the number of eligible
aggregate employment shares maintained by the taxpayer during the
calendar year with respect to particular premises to which the taxpayer
has relocated; provided, however, with respect to a relocation for which
no application for a certificate of eligibility is submitted prior to
July first, two thousand three, to eligible premises that are within a
revitalization area, if the date of such relocation as determined
pursuant to subdivision (j) of section 22-621 of the code is on or after
January first, nineteen hundred ninety-nine, and before July first, two
thousand, the amount to be multiplied by the number of eligible
aggregate employment shares shall be one thousand dollars; provided,
however, that no credit shall be allowed for the relocation of any
retail activity or hotel services; and provided that in the case of an
eligible business that has obtained pursuant to chapter six-B of such
title twenty-two certifications of eligibility for more than one
relocation, the portion of the total amount of eligible aggregate
employment shares to be multiplied by the dollar amount specified in
this subdivision for each such certification of a relocation shall be
the number of total attributed eligible aggregate employment shares
determined with respect to such relocation pursuant to subdivision (o)
of section 22-621 of the code. For purposes of this subdivision, the
terms "eligible aggregate employment shares", "relocate", "retail
activity" and "hotel services" shall have the meanings ascribed by
section 22-621 of the code.
(b) The credit allowed under this subdivision with respect to eligible
aggregate employment shares maintained with respect to particular
premises to which the taxpayer has relocated shall be allowed for the
taxable periods in the first calendar year during which such eligible
aggregate employment shares are maintained with respect to such premises
and for taxable periods in any of the twelve succeeding calendar years
during which eligible aggregate employment shares are maintained with
respect to such premises, provided that the credit allowed for the
taxable periods in the twelfth succeeding calendar year shall be
calculated by multiplying the number of eligible aggregate employment
shares maintained with respect to such premises in the twelfth
succeeding calendar year by the lesser of one and a fraction the
numerator of which is the number of days in the calendar year of
relocation less the number of days the eligible business maintained
employment shares in the eligible premises in the calendar year of
relocation and the denominator of which is the number of days in such
twelfth succeeding year during which such eligible aggregate employment
shares are maintained with respect to such premises. The credit
allowable under this section shall be applied against the amount of tax
otherwise required to be paid for the last taxable period of the
calendar year as provided in subdivision a of section 11-1105 of this
chapter, shall be deducted from the taxpayer's tax prior to the
deduction of the credit provided in subdivision b of such section, and
shall be claimed on the tax return for the last taxable period of the
calendar year. Except as provided in subdivision (c) of this section, if
the amount of the credit allowable under this subdivision for any
calendar year exceeds the tax imposed for such last taxable period in
such calendar year, the excess may be carried over, in order, to the
immediately succeeding taxable periods in the five immediately
succeeding calendar years and, to the extent not previously allowable,
shall be applied against the tax otherwise required to be paid for such
periods. Such carryover credit shall be deducted from the taxpayer's tax
prior to the deduction of the credit provided in subdivision b of
section 11-1105 of this chapter. With respect to the last taxable period
in a calendar year, the credit for such calendar year shall be taken
prior to any carryover credit. If in any period there are carryover
credits available from more than one year, such credits shall be applied
against the tax in the order in which they were earned with the oldest
available credit being taken first.
(c) In the case of a taxpayer that has obtained a certification of
eligibility pursuant to chapter six-B of title twenty-two of the code
dated on or after July first, two thousand for a relocation to eligible
premises located within the revitalization area defined in subdivision
(n) of section 22-621 of the code, the credits allowed under this
section, or in the case of a taxpayer that has relocated more than once,
the portion of such credits attributed to such certification of
eligibility pursuant to subdivision (a) of this section, against the tax
imposed by this chapter for the calendar year of such relocation and for
the four calendar years immediately succeeding the calendar year of such
relocation, shall be deemed to be erroneous payments of tax by the
taxpayer to be credited or refunded, in accordance with the provisions
of section 11-1108 of this chapter. For such calendar years, such
credits or portions thereof may not be carried over to any succeeding
taxable year; provided, however, that this subdivision shall not apply
to any relocation for which an application for a certification of
eligibility was not submitted prior to July first, two thousand three
unless the date of such relocation is on or after July first, two
thousand.
Section 11-1105.3
§ 11-1105.3 Lower Manhattan relocation employment assistance credit.
(a) A taxpayer that has obtained the certifications required by chapter
six-C of title twenty-two of the code shall be allowed a credit against
the tax imposed by this chapter, provided, however, that a taxpayer that
is a vendor of utility services shall not be allowed the credit against
the tax imposed by this chapter unless it elects as provided in
subdivision (d) of section 22-624 of the code to take the credit against
the tax imposed by this chapter. The amount of the credit shall be the
amount determined by multiplying three thousand dollars by the number of
eligible aggregate employment shares maintained by the taxpayer during
the calendar year with respect to eligible premises to which the
taxpayer has relocated; provided, however, that no credit shall be
allowed for the relocation of any retail activity or hotel services. For
purposes of this subdivision, the terms "eligible aggregate employment
shares", "eligible premises", "relocate", "retail activity" and "hotel
services" shall have the meanings ascribed by section 22-623 of the
code.
(b) The credit allowed under this section with respect to eligible
aggregate employment shares maintained with respect to eligible premises
to which the taxpayer has relocated shall be allowed for the taxable
period in which the relocation to eligible premises takes place and for
succeeding taxable periods in the calendar year of the relocation and in
any of the twelve succeeding calendar years during which eligible
aggregate employment shares are maintained with respect to eligible
premises, provided that the credit allowed for the taxable periods in
the twelfth succeeding calendar year shall be calculated by multiplying
the number of eligible aggregate employment shares maintained with
respect to eligible premises in the twelfth succeeding calendar year by
the lesser of one and a fraction the numerator of which is the number of
days in the calendar year of relocation less the number of days the
taxpayer maintained employment shares in eligible premises in the
calendar year of relocation and the denominator of which is the number
of days in such twelfth succeeding calendar year during which such
eligible aggregate employment shares are maintained with respect to such
premises. The credit allowable under this section shall be applied
against the amount of tax otherwise required to be paid for the last
taxable period of the calendar year as provided in subdivision a of
section 11-1105 of this chapter, shall be deducted from the taxpayer's
tax prior to the deduction of the credit provided in subdivision b of
such section but after the credit provided for in section 11-1105.2 of
this chapter, and shall be claimed on the tax return for the last
taxable period of the calendar year. Except as provided in subdivision
(c) of this section, if the amount of the credit allowable under this
subdivision for any calendar year exceeds the tax imposed for such last
taxable period in such calendar year, the excess may be carried over, in
order, to the immediately succeeding taxable periods in the five
immediately succeeding calendar years and, to the extent not previously
allowable, shall be applied against the tax otherwise required to be
paid for such periods. Such carryover credit shall be deducted from the
taxpayer's tax prior to the deduction of the credit provided in
subdivision b of section 11-1105 of this chapter but after the credit
provided for in section 11-1105.2 of this chapter. With respect to the
last taxable period in a calendar year, the credit for such calendar
year shall be taken prior to any carryover credit. If in any period
there are carryover credits available from more than one year, such
credits shall be applied against the tax in the order in which they were
earned with the oldest available credit being taken first.
(c) The credits allowed under this section, against the tax imposed by
this chapter for the calendar year of the relocation and for the four
taxable years immediately succeeding the calendar year of such
relocation, shall be deemed to be overpayments of tax by the taxpayer to
be credited or refunded, without interest, in accordance with the
provisions of section 11-1108 of this chapter. For such calendar years,
such credits or portions thereof may not be carried over to any
succeeding calendar year.
Section 11-1106
§ 11-1106 Determination of tax. In case the return required by this
chapter shall be insufficient or unsatisfactory or if such return is not
filed, the commissioner of finance shall determine the amount of the tax
due from such information as is obtainable, and if necessary the tax may
be estimated upon 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 such 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 commissioner of finance and (2) files a
petition with the tax appeals tribunal for a hearing, or unless such
commissioner of his or her 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, unconstitutionality or any other reason whatsoever by a
proceeding under article seventy-eight of the civil practice law and
rules if instituted by the person against whom the tax was assessed
within four months after the giving of the notice of such tax appeals
tribunal decision. A proceeding under such article of such law and rules
shall not be instituted by a taxpayer unless (a) the amount of any tax
sought to be reviewed with penalties and interest thereon, if any, shall
first be deposited with the commissioner of finance and there shall be
filed with such commissioner an undertaking, 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 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, or (b) at
the option of the taxpayer such undertaking filed with the commissioner
of finance may be in a sum sufficient to cover the taxes, penalties and
interest thereon 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 deposit such taxes,
penalties and interest as a condition precedent to the application.
Section 11-1107
§ 11-1107 Assessment of tax where change or correction of sales and
compensating use tax liability involved. a. If a taxpayer fails to
comply with subdivision d of section 11-1104 of this chapter in not
reporting a change or correction of its sales and compensating use tax
liability or in not filing a copy of an amended return or report
relating to its sales and compensating use tax liability, instead of the
mode and time of assessment provided for in section 11-1106 of this
chapter, the commissioner of finance may assess a deficiency based upon
such changed or corrected sales and compensating use tax liability, as
same relates to credits claimed under this chapter, by mailing to the
taxpayer a notice of additional tax due specifying the amount of the
deficiency, and such deficiency, together with the interest and
penalties stated in such notice, shall be deemed assessed on the date
such notice is mailed unless within thirty days after the mailing of
such notice a report of the state change or correction or a copy of an
amended return or report, where such copy was required, is filed
accompanied by a statement showing wherein such state determination and
such notice of additional tax due are erroneous. Such notice shall not
be considered as a notice of determination for the purposes of section
11-1106 of this chapter.
b. If a report filed pursuant to subdivision d of section 11-1104 of
this chapter concedes the accuracy of a state change or correction of
sales and compensating use tax liability, any deficiency in tax
resulting therefor shall be deemed assessed on the date of filing such
report.
Section 11-1108
§ 11-1108 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 application for such refund shall be made to the
commissioner of finance within three years from the time the return was
filed or two years from the time the tax was paid, whichever of such
periods expires later, or if no return was filed, within two years from
the time the tax was paid. If the claim is filed within the three-year
period, the amount of the credit or refund shall not exceed the portion
of the tax paid within the three years immediately preceding the filing
of the claim plus the period of any extension of time for filing the
return. If the claim is not filed within the three-year period, but is
filed within the two-year period, the amount of the credit or refund
shall not exceed the portion of the tax paid during the two years
immediately preceding the filing of the claim. Whenever a refund or
credit is made or denied by the commissioner of finance, he or she 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 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 applicant and to the
commissioner of finance. The applicant shall be entitled to institute a
proceeding under 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, a final determination of tax due was
not previously made.
c. If a taxpayer is required by subdivision d of section 11-1104 of
this chapter to file a report or amended return in respect of a change
or correction of its sales and compensating use tax liability, claim for
credit or refund of any resulting overpayment of tax shall be filed by
the taxpayer within one year from the time such report or amended return
was required to be filed with the commissioner of finance. This
subdivision shall not affect the time within which or the amount for
which a claim for credit or refund may be filed apart from this
subdivision.
d. 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 11-1106 or
11-1107 of this chapter where he or she has had a hearing or an
opportunity for a hearing, as provided in said sections, 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
11-1106 or 11-1107 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 of the
commissioner of finance's own motion 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 11-1109
§ 11-1109 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
him or her on his or her application for refund, the comptroller shall
set up appropriate reserves to meet any decision adverse to the city.
Section 11-1110
§ 11-1110 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 a 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 11-1106 of
this chapter.
Section 11-1111
§ 11-1111 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, such
commissioner 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 a further additional or alternate remedy, the commissioner of
finance may issue a warrant, directed to the city sheriff, commanding
him or her 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 the cost of executing the warrant and to
return such warrant to such commissioner and to pay to him or her 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 and penalties for
which the warrant is issued and the date when such copy is filed.
Thereupon the amount of such warrant so docketed shall have the full
force and effect of a judgment and 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 against property upon judgments of a court of
record, and for services in executing the warrant he or she shall be
entitled to the same fees which he or she 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 power 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 merchandising 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, whether or not the purchaser,
transferee or assignee has knowledge that such taxes are owing, and
whether or not any such taxes are in fact owing.
Whenever the purchaser, transferee or assignee shall fail to give the
notice to the commissioner of finance required by this subdivision, or
whenever such commissioner 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 article six of the uniform
commercial code 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 is
imposed 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 11-1112
§ 11-1112 General powers of the commissioner of finance. In addition
to the powers granted to the commissioner of finance in this chapter, he
or she 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; and to prescribe
the form of blanks, reports and other records relating to the
enforcement and administration of this chapter;
2. To prescribe methods for determining the amount of "gross income"
and "gross operating income" received by a person subject to tax
hereunder;
3. To request information from the tax commission of the state of New
York or treasury department of the United States relative to any person;
and to afford returns, reports and other information to such tax
commission or such treasury department relative to any person, any other
provision in this chapter to the contrary notwithstanding;
4. To extend, for cause shown, the time for filing any return for a
period not exceeding thirty days; and to compromise disputed claims in
connection with the taxes hereby imposed;
5. To delegate his or her functions hereunder to a deputy commissioner
of finance or other employee or employees of the department of finance
of the city;
6. To assess, determine, revise and readjust the taxes imposed under
this chapter.
Section 11-1113
§ 11-1113 Administration of oaths and compelling testimony. a. The
commissioner of finance, his or her employees duly designated and
authorized by him or her, 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 proceedings in the
exercise of their powers and duties under this chapter. Such
commissioner 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 such 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
his or her duly appointed deputies or any officers or employees of the
department of finance or the tax appeals tribunal, designated to serve
such process.
Section 11-1114
§ 11-1114 Interest and penalties. (a) Interest on underpayments. If
any amount of tax 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 (g) 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.
(b) * (1) Failure to file return. (A) In case of failure to file a
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.
(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 § 60, language juxtaposed per Ch. 907/85 § 14
(2) Failure to pay tax shown on return. In case of failure to pay the
amount shown as tax on a 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 return. In case of
failure to pay any amount in respect of any tax required to be shown on
a return required to be filed under this chapter which is not so shown
(including a determination made pursuant to section 11-1106 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 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 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 § 60, language juxtaposed per Ch. 907/85 § 14
* (c) 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 (a) 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).
(3) If any payment is shown on a return made by a payor with respect
to dividends, patronage dividends and interest under subsection (a) of
section six thousand forty-two, subsection (a) of section six thousand
forty-four or subsection (a) of section six thousand forty-nine of the
internal revenue code of nineteen hundred fifty-four, respectively, and
the payee fails to include any portion of such payment in gross income
or gross operating income, when required under this chapter to be so
included, any portion of an underpayment attributable to such failure
shall be treated, for purposes of this subdivision, as due to negligence
in the absence of clear and convincing evidence to the contrary. If any
penalty is imposed under this subdivision by reason of the preceding
sentence, the amount of the penalty imposed by paragraph one of this
subdivision shall be five percent of the portion of the underpayment
which is attributable to the failure described in the preceding
sentence.
* NB Amended Ch. 765/85 § 60, language juxtaposed per Ch. 907/85 § 14
(d) 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
two times the underpayment.
(3) The penalty under this subdivision shall be in lieu of any other
addition to tax imposed by subdivision (b) or (c) of this section.
(e) 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.
(f) 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.
(g) (1) Authority to set interest rates. The commissioner of finance
shall set the rate of interest to be paid pursuant to subdivision (a) 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 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.
* (h) 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 § 60, language juxtaposed per Ch. 907/85 § 14
* (i) Substantial understatement of liability. If there is a
substantial understatement of tax for any taxable period, 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
taxable period if the amount of the understatement for the taxable
period exceeds the greater of ten percent of the tax required to be
shown on the return for the taxable period 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 return for
the taxable period, 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 § 60, language juxtaposed per Ch. 907/85 § 14
* (j) 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 title 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 § 60, language juxtaposed per Ch. 907/85 § 14
(k) Failure to include on return information relating to issuer's
allocation percentage. Where a return is filed but does not contain (1)
the information necessary to compute the taxpayer's issuer's allocation
percentage, as defined in subparagraph one of paragraph (b) of
subdivision three of section 11-604 of this title, where the same is
called for on the return, or, (2) the taxpayer's issuer's allocation
percentage, where the same is called for on the return but where all of
the information necessary for the computation of such percentage is not
called for on the return, then unless it is shown that such failure is
due to reasonable cause and not due to willful neglect there shall be
added to the tax a penalty of five hundred dollars.
(l) False or fraudulent document penalty. Any taxpayer that submits a
false or fraudulent document to the department shall be subject to a
penalty of one hundred dollars per document submitted, or five hundred
dollars per tax return submitted. Such penalty shall be in addition to
any other penalty or addition provided by law.
Section 11-1115
§ 11-1115 Notices and limitations of time. a. Any notice authorized or
required under the provisions of this chapter may be given by mailing
the same to the person for whom it is intended 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 him or her, or, if no return has been filed or
application made, then to such address as may be obtainable. The mailing
of such notice 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.
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 by the city taken 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 imposed under a local law enacted
subsequent to July first, nineteen hundred thirty-eight, shall be made
after the expiration of more than three years from the date of the
filing of a return, provided, however, that where no return has been
filed, or where the taxpayer fails to file a report or return in respect
of a change or correction in the amount of sales and compensating use
tax liability as provided by law, the tax may be assessed at any time.
Where the taxpayer files a report or return in respect of a change or
correction in sales and compensating use tax liability, as required by
subdivision d of section 11-1104, an assessment may be made at any time
within two years after such report or return was filed, provided,
however, that this sentence shall not affect the time within which an
assessment may otherwise be made.
c. Where, before the expiration of the period prescribed herein for
the assessment of an additional tax, a taxpayer 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 11-1116
§ 11-1116 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 tax appeals tribunal, or any officer or
employee of the department of finance or the tax appeals tribunal to
divulge or make known in any manner, the receipts or any other
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 city or the commissioner of finance,
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 court 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 his or her duly
authorized representative of a certified copy of any return filed in
connection with his or her tax, nor to prohibit the publication of
statistics so classified as to prevent the identification of particular
returns and the items thereof, or the inspection by the corporation
counsel of the city or other legal representatives of such city of the
return of any taxpayer who shall bring action or proceeding to set aside
or review the tax based thereon, or against whom an action or proceeding
has been instituted or is contemplated for the collection of a tax,
penalty or interest. Returns shall be preserved for three years and
thereafter until the commissioner of finance permits them to be
destroyed.
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 11-1117
§ 11-1117 Construction and enforcement. This chapter shall be
construed and enforced in conformity with chapter ninety-three of the
laws of nineteen hundred sixty-five, as amended, pursuant to which it is
enacted.
Section 11-1118
§ 11-1118 Disposition of revenues. All revenues resulting from the
imposition of the tax under this chapter shall be paid into the treasury
of the city and shall be credited to and deposited in the general fund
of the city, but no part of such revenues may be expended unless
appropriated in the annual budget of the city.
Section 11-1119
§ 11-1119 Determinations of place of primary use of wireless
telecommunications services. a. A home service provider shall be
responsible for obtaining and maintaining the customer's place of
primary use as defined in subdivision twenty of section 11-1101 of this
chapter. Except as provided in subdivision b of this section, if the
home service provider's reliance on the information provided by its
customer is in good faith: (1) the home service provider can rely on the
applicable residential or business street address supplied by the home
service provider's customer; and (2) the home service provider shall not
be held liable for any additional taxes under this chapter based on a
different determination of the place of primary use.
b. The commissioner of finance, or the commissioner of taxation and
finance of the state of New York on behalf of the commissioner of
finance, may determine that the address used by a home service provider
for purposes of this chapter does not meet the definition of place of
primary use as defined in subdivision twenty of section 11-1101 of this
chapter and may give binding notice to the home service provider to
change the place of primary use on a prospective basis from the date of
notice of determination if:
(1) where the determination is made by the commissioner of finance,
such commissioner obtains the consent of all affected taxing
jurisdictions within this state before giving such notice of
determination; and
(2) before the commissioner of finance or the commissioner of taxation
and finance of the state of New York gives such notice of determination,
the customer is given an opportunity to demonstrate, in accordance with
applicable procedures established by the commissioner of finance making
the determination, that that address is the customer's place of primary
use.
c. Except as provided in subdivision b of this section, a home service
provider may treat the address used by the home service provider for
purposes of this chapter for the last taxable period beginning before
August first, two thousand two, for any customer under a service
contract or agreement in effect on July twenty-eighth, two thousand two
as that customer's place of primary use for the remaining term of such
service contract or agreement, excluding any extension or renewal of
such service contract or agreement.
Section 11-1120
§ 11-1120 Assignment of place of primary use of telecommunications
services to the city. a. If an electronic database meeting the
requirements of subsection a of section 119 of title four of the United
States Code is provided by the state of New York, or by a designated
database provider as defined in subsection three of section 124 of such
title, and the requirements of subsection b of such section 119 are met,
a home service provider shall use that database to determine whether the
customer's place of primary use is within the territorial limits of the
city and shall reflect changes to such database in accordance with
subsection c of such section 119.
b. A home service provider using the data contained in an electronic
database described in subdivision a of this section shall be held
harmless from any tax liability that otherwise would be due under this
chapter solely as a result of any error or omission in such database
provided the home service provider has properly reflected changes to
such database in accordance with subsection c of section 119 of title
four of the United States Code.
c. (1) If no electronic database is provided as described in
subdivision a of this section, a home service provider shall be held
harmless from any tax liability under this chapter that otherwise would
be due solely as a result of an assignment of a street address to an
incorrect taxing jurisdiction if, subject to subdivision d of this
section, the home service provider employs an enhanced zip code to
assign each street address to a specific taxing jurisdiction for each
level of taxing jurisdiction and exercises due diligence at each level
of taxing jurisdiction to ensure that each such street address is
assigned to the correct taxing jurisdiction. If an enhanced zip code
overlaps boundaries of taxing jurisdictions of the same level, the home
service provider must designate one specific jurisdiction within such
enhanced zip code for use in taxing the activity for such enhanced zip
code for each level of taxing jurisdiction. Any enhanced zip code
assignment changed in accordance with subdivision d of this section is
deemed to be in compliance with this subdivision. For purposes of this
subdivision, there is a rebuttable presumption that a home service
provider has exercised due diligence if such home service provider
demonstrates that it has:
(i) expended reasonable resources to implement and maintain an
appropriately detailed electronic database of street address assignments
to taxing jurisdictions;
(ii) implemented and maintained reasonable internal controls to
promptly correct misassignments of street addresses to taxing
jurisdictions; and
(iii) used all reasonably obtainable and usable data pertaining to
municipal annexations, incorporations, reorganizations and any other
changes in jurisdictional boundaries that materially affect the accuracy
of such database.
(2) Paragraph one of this subdivision applies to a home service
provider that is in compliance with the requirements of such paragraph
until the later of:
(i) eighteen months after the nationwide standard numeric code
described in subsection (a) of section 119 of title four of the United
States Code has been approved by the federation of tax administrators
and the multistate tax commission; or
(ii) six months after the state of New York or a designated database
provider provides a database as prescribed in subdivision a of this
section.
d. The commissioner of finance, or the commissioner of taxation and
finance of the state of New York on behalf of the commissioner of
finance, may determine that the assignment of a street address to a
taxing jurisdiction by a home service provider under subdivision c of
this section does not reflect the correct taxing jurisdiction and give
binding notice to the home service provider to change the assignment on
a prospective basis from the date of notice of determination if:
(1) where the determination is made by the commissioner of finance,
such commissioner obtains the consent of all affected taxing
jurisdictions within this state before giving such notice of
determination; and
(2) the home service provider is given an opportunity to demonstrate
in accordance with applicable procedures established by the commissioner
of finance making the determination that the assignment reflects the
correct taxing jurisdiction.
To the extent possible under law, Friends of Devin Balkind for Public Advocate has waived all copyright and related or neighboring rights to New York City Administrative Code. This work is published from: United States.
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