N.Y. Tax Law § 1505-a: Metropolitan transportation business tax surcharge on insurance corporations

§ 1505-a. Metropolitan transportation business tax surcharge on

insurance corporations.

(a) (1) Every domestic insurance corporation and every foreign or

alien insurance corporation, and every life insurance corporation

described in subdivision (b) of section fifteen hundred one of this

article, for the privilege of exercising its corporate franchise, or of

doing business, or of employing capital, or of owning or leasing

property in the metropolitan commuter transportation district in a

corporate or organized capacity, or of maintaining an office in the

metropolitan commuter transportation district, except corporations

specified in subdivision (c) of section fifteen hundred twelve of this

article, shall annually pay, in addition to the taxes otherwise imposed

by this article, a tax surcharge on the taxes imposed under this article

after the deduction of any credits otherwise allowable under this

article as allocated to such district. Such taxes shall be allocated to

such district for purposes of computing such tax surcharge upon

taxpayers subject to tax under subdivision (b) of section fifteen

hundred ten of this article by applying the methodology, procedures and

computations set forth in subdivisions (a) and (b) of section fifteen

hundred four of this article, except that references to terms denoting

New York premiums, and total wages, salaries, personal service

compensation and commissions within New York shall be read as denoting

within the metropolitan commuter transportation district and terms

denoting total premiums and total wages, salaries, personal service

compensation and commissions shall be read as denoting within the state.

If it shall appear to the commissioner that the application of the

methodology, procedures and computations set forth in such subdivisions

(a) and (b) does not properly reflect the activity, business or income

of a taxpayer within the metropolitan commuter transportation district,

then the commissioner shall be authorized, in the commissioner's

discretion, to adjust such methodology, procedures and computations for

the purpose of allocating such taxes by:

(A) excluding one or more factors therein;

(B) including one or more other factors therein, such as expenses,

purchases, receipts other than premiums, real property or tangible

personal property; or

(C) any other similar or different method which allocates such taxes

by attributing a fair and proper portion of such taxes to the

metropolitan commuter transportation district. The commissioner from

time to time shall publish all rulings of general public interest with

respect to any application of the provisions of the preceding sentence.

The commissioner may promulgate rules and regulations to further

implement the provisions of this section.

(2) Such taxes shall be allocated to such district for purposes of

computing such tax surcharge upon taxpayers subject to tax under section

fifteen hundred two-a of this article pursuant to a fraction, the

denominator of which shall be the direct premiums subject to tax under

section fifteen hundred ten of this article, and the numerator of which

shall be the direct premiums subject to tax under section fifteen

hundred ten of this article that are written on risks located or

resident in the metropolitan commuter transportation district, including

premiums written, procured or received in the metropolitan commuter

transportation district on business that cannot be specifically assigned

as located or resident in an area of New York state outside the

metropolitan commuter transportation district, or in another state or

states; provided, however, in the case of special risk premiums, the

numerator shall include only those premiums written, procured or

received in the metropolitan commuter transportation district on

property or risks located or resident in the metropolitan commuter

transportation district. If it shall appear to the commissioner that the

application of the methodology, procedures and computations set forth in

this paragraph does not properly reflect the activity, business or

income of a taxpayer within the metropolitan commuter transportation

district, then the commissioner shall be authorized, in the

commissioner's discretion, to adjust such methodology, procedures and

computations for the purpose of allocating such taxes by: (A) excluding

the factor therein and including one or more other factors such as

expenses, purchases, receipts other than premiums, real property or

tangible personal property; or (B) any other similar or different method

which allocates such taxes by attributing a fair and proper portion of

such taxes to the metropolitan commuter transportation district. The

commissioner from time to time shall publish all rulings of general

public interest with respect to any application of the provisions of the

preceding sentence. The commissioner may promulgate rules and

regulations to further implement the provisions of this section.

(3) Such tax surcharge shall be computed at the rate of seventeen

percent of the taxes imposed under sections fifteen hundred one, fifteen

hundred two-a, and fifteen hundred ten of this article, as limited or

otherwise determined by subdivision (a) or (b) of section fifteen

hundred five of this article, as allocated to such district, after the

deduction of any credits otherwise allowable under this article.

Provided however, that for taxable years commencing on or after July

first, two thousand, and in the case of taxpayers subject to tax under

section fifteen hundred two-a of this article, for taxable years of such

taxpayers beginning on or after July first, two thousand and before

January first, two thousand three, such surcharge shall be calculated as

if (i) the rate of the tax computed under paragraph one of subdivision

(a) of section fifteen hundred two of this article was nine percent and

(ii) the rate of the limitation on tax set forth in section fifteen

hundred five of this article for domestic, foreign and alien insurance

corporations except life insurance corporations was two and six-tenths

percent.

(b) The term metropolitan commuter transportation district as used in

this section shall be defined pursuant to section twelve hundred

sixty-two of the public authorities law.

(c) Notwithstanding any contrary provisions of state or local law, the

tax surcharge imposed under this section shall not be allowed as a

deduction in the computation of any state or local tax imposed under

this chapter or any chapter or local law. The credits set forth in

section fifteen hundred eleven of this article shall not be allowed

against the tax surcharge imposed by this section.

(d) (1) If, by the laws of any state other than this state, or by the

action of any public official of such other state, any insurer organized

or domiciled in this state, or the duly authorized agents thereof,

subject to the business tax surcharge imposed by this section shall be

required to pay taxes for the privilege of doing business in such other

state which taxes are imposed or assessed because of the taxes imposed

or assessed under this section, in computing the tax imposed by this

section a credit shall be allowed for taxes paid to other states, which

credit shall be determined pursuant to the provisions of this section;

provided, however, the credit allowed any insurer under this subdivision

shall in no event be greater than the tax surcharge payable by such

insurer pursuant to this section for the taxable year with respect to

which such amount has been imposed or assessed by such other states.

(2) In addition to any other requirements of this article, an insurer

claiming a credit under this subdivision shall attach to the returns

required pursuant to this section and section fifteen hundred fifteen of

this article a computation identifying the credit attributable to taxes

paid to other states because of the tax surcharge imposed by this

section, which credit shall be further broken down to reflect amounts

and taxable years to which the retaliatory taxes giving rise to the

credit relate. The credit attributable to taxes paid to other states

because of the tax surcharge imposed by this section shall be the

difference between: (i) the credit which would be claimed by the insurer

pursuant to subdivision (c) of section fifteen hundred eleven of this

chapter if the tax surcharge imposed by this section were permitted in

the computation of such credit, and (ii) the credit which is claimed by

such insurer pursuant to such subdivision (c).

(3) To the extent not inconsistent with the provisions of this

subdivision, the provisions of paragraphs four and five of subdivision

(c) of section fifteen hundred eleven of this chapter shall apply with

respect to the credit allowed under this subdivision.

(4) No credit against taxes paid to other jurisdictions under

subdivision (c) of section fifteen hundred eleven of this article shall

be allowed for any taxes paid under this section by any domestic

insurance corporation, including life insurance corporations subject to

tax under this section.

(e) The provisions concerning returns under section fifteen hundred

fifteen of this article shall be applicable to this section, except that

for purposes of an automatic extension for six months for filing a

return covering the tax surcharges imposed by this section, such

automatic extension shall be allowed only if a taxpayer files with the

commissioner an application for extension in such form and manner as

said commissioner may prescribe by regulation and such taxpayer pays on

or before the date of such filing in addition to any other amounts

required under this article, either ninety percent of the entire tax

required to be paid under this section for the applicable period, or not

less than the tax surcharge shown on the taxpayer's return for the

preceding taxable year, if such preceding taxable year was a taxable

year of twelve months. The tax surcharge imposed by this section shall

be payable to the commissioner in full at the time the return is

required to be filed, and such tax surcharge or the balance thereof,

imposed on any taxpayer which ceases to exercise its franchise or be

subject to the tax surcharge imposed by this section shall be payable to

the commissioner at the time the return is required to be filed,

provided such tax surcharge of such domestic, foreign or alien insurance

corporation including life insurance corporations, as described in

subdivision (b) of section fifteen hundred one of this article, shall be

subject to adjustment as the circumstances may require; all other tax

surcharges of any such taxpayer, which pursuant to the foregoing

provisions of this section would otherwise be payable subsequent to the

time such return is required to be filed, shall nevertheless be payable

at such time. All of the provisions of this article presently applicable

are applicable to the tax surcharge imposed by this section.