N.Y. Tax Law § 1515: Returns

§ 1515. Returns. (a) Every taxpayer and every other foreign and alien

insurance corporation having an employee, including any officer, in this

state or having an agent or representative in this state, shall

annually, on or before the fifteenth day of the third month following

the close of its taxable year, for taxable years beginning before

January first, two thousand sixteen, and on or before the fifteenth day

of the fourth month following the close of its taxable year, for taxable

years beginning on or after January first, two thousand sixteen,

transmit to the commissioner a return in a form prescribed by the

commissioner setting forth such information as the commissioner may

prescribe and every taxpayer which ceases to exercise its franchise or

to be subject to the tax imposed by this article shall transmit to the

commissioner a return on the date of such cessation or at such other

time as the commissioner may require covering each year or period for

which no return was theretofore filed. A copy of each return required

under this subdivision shall also be transmitted to the superintendent

of financial services at or before the times specified for filing such

returns with the commissioner.

(b) Every taxpayer shall also transmit such other returns and such

facts and information as the tax commission may require in the

administration of this article.

(c) The tax commission may grant a reasonable extension of time for

filing returns whenever good cause exists. An automatic extension of six

months for the filing of its annual return shall be allowed any

taxpayer, if within the time prescribed by subdivision (a), such

taxpayer files with the tax commission an application for extension in

such form as said commission may prescribe and pays on or before the

date of such filing the amount properly estimated as its tax.

(d) Every return shall have annexed thereto a certification by the

president, vice president, treasurer, assistant treasurer, chief

accounting officer or any other officer of the taxpayer duly authorized

so to act to the effect that the statements contained therein are true.

The fact that an individual's name is signed on a certification of the

return shall be prima facie evidence that such individual is authorized

to sign and certify the return on behalf of the corporation.

(e) Report of changed or corrected federal income or final

determination of refund or credit of retaliatory taxes or other

charges.-- (1) If the amount of the life insurance company taxable

income (which shall include, in the case of a stock life insurance

company which has an existing policyholders surplus account, the amount

of direct and indirect distributions during the taxable year to

shareholders from such account), taxable income of a partnership or

taxable income, as the case may be, or alternative minimum taxable

income for any year of any taxpayer as returned to the United States

treasury department is changed or corrected by the commissioner of

internal revenue or other officer of the United States or other

competent authority, such taxpayer shall report such change or corrected

taxable income or alternative minimum taxable income within ninety days

(or one hundred twenty days, in the case of a taxpayer making a combined

return under this article for such year) after the final determination

of such change or correction or as required by the commissioner, and

shall concede the accuracy of such determination or state wherein it is

erroneous. Provided, however, if the taxpayer is a direct or indirect

partner of a partnership required to report adjustments in accordance

with section six hundred fifty-nine-a of this chapter, such taxpayer

shall also report such adjustments in accordance with section six

hundred fifty-nine-a of this chapter. Any taxpayer filing an amended

return with such department shall also file within ninety days (or one

hundred twenty days, in the case of a taxpayer making a combined return

under this article for such year) thereafter an amended return with the

commissioner which shall contain such information as the commissioner

shall require. The allowance of a tentative carryback adjustment based

upon a net operating loss carryback or net capital loss carryback

pursuant to section sixty-four hundred eleven of the internal revenue

code or upon an operations loss carryback pursuant to section eight

hundred ten of the internal revenue code, shall be treated as a final

determination for purposes of this subdivision.

(2) If a taxpayer has paid taxes to another state pursuant to a

statute similar to section one thousand one hundred twelve of the

insurance law or any other statute or regulation of another state under

which retaliatory taxes or other charges were imposed or assessed, for

which taxes or charges paid the taxpayer has been allowed a credit

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

article, and thereafter such taxes or charges are adjudged by a court of

competent jurisdiction or other competent authority to have been

erroneously paid or illegally or unconstitutionally imposed and, after

exhaustion of all further judicial review there is a final determination

that a refund or credit is due the taxpayer, such taxpayer shall report

such final determination, along with the amount refunded or credited or

to be refunded or credited, within ninety days of its issuance or as

required by the tax commission.

(f) (1) Any taxpayer, which owns or controls either directly or

indirectly substantially all the capital stock of one or more other

corporations, or substantially all the capital stock of which is owned

or controlled either directly or indirectly by one or more other

corporations or by interests which own or control either directly or

indirectly substantially all the capital stock of one or more other

corporations, (hereinafter referred to in this paragraph as "related

corporations"), shall make a combined return with any related

corporations if there are substantial intercorporate transactions among

the related corporations, regardless of the transfer price for such

intercorporate transactions. It is not necessary that there be

substantial intercorporate transactions between any one corporation and

every other related corporation. It is necessary, however, that there be

substantial intercorporate transactions between the taxpayer and a

related corporation or collectively, a group of such related

corporations. The return shall set forth such information as the

commissioner may require.

(2) In determining whether there are substantial intercorporate

transactions, the commissioner shall consider and evaluate all

activities and transactions of the taxpayer and its related

corporations. Activities and transactions that will be considered

include, but are not limited to: (i) manufacturing, acquiring goods or

property, or performing services, for related corporations; (ii) selling

goods acquired from related corporations; (iii) financing sales of

related corporations; (iv) performing related customer services using

common facilities and employees for related corporations; (v) selling

policies or contracts of insurance for related corporations; (vi)

reinsuring risks for related corporations; (vii) collecting premiums or

other consideration for any policy or contract of insurance for related

corporations; (viii) incurring expenses that benefit, directly or

indirectly, one or more related corporations and (ix) transferring

assets, including such assets as accounts receivable, patents or

trademarks from one or more related corporations.

(3) Except as provided in paragraph one of this subdivision, no

combined return covering any corporation shall be required unless the

commissioner deems such return necessary because of intercompany

transactions or some agreement, understanding, arrangement or

transaction referred to in subdivision (g) of this section, in order

properly to reflect the tax liability under this article.

(4)(i) For purposes of this paragraph, the term "closest controlling

stockholder" means the corporation that indirectly owns or controls over

fifty percent of the voting stock of a captive REIT or captive RIC, is

subject to tax under section fifteen hundred one of this article or

article nine-A of this chapter or required to be included in a combined

return or report under this article or article nine-A of this chapter,

and is the fewest tiers of corporations away in the ownership structure

from the captive REIT or captive RIC. The commissioner is authorized to

prescribe by regulation or published guidance the criteria for

determining the closest controlling stockholder.

(ii) A captive REIT or a captive RIC must be included in a combined

return with the corporation that directly owns or controls over fifty

percent of the voting stock of the captive REIT or captive RIC if that

corporation is a life insurance corporation and is subject to tax or

required to be included in a combined return under this article.

(iii) If over fifty percent of the voting stock of a captive REIT or

captive RIC is not directly owned or controlled by a life insurance

corporation that is subject to tax or required to be included in a

combined return under this article, and the closest controlling

stockholder of the captive REIT or captive RIC is a life insurance

corporation that is subject to tax or required to be included in a

combined return under this article, then the captive REIT or captive RIC

must be included in a combined return with the closest controlling

stockholder under this article.

(iv) If a captive REIT owns the stock of a qualified REIT subsidiary

(as defined in paragraph two of subsection (i) of section eight hundred

fifty-six of the internal revenue code) and the captive REIT is required

to be included in a combined return under subparagraphs (ii) or (iii) of

this paragraph, then the qualified REIT subsidiary must be included in

any combined return required to be made by the captive REIT that owns

the stock of the qualified REIT subsidiary.

(v) If a captive REIT or a captive RIC is required under this

paragraph to be included in a combined return with another corporation,

and that other corporation is required to be included in a combined

return with another corporation under this subdivision, then the captive

REIT or the captive RIC must be included in that combined return with

the other corporation.

(5)(i) In the case of a combined return, the tax shall be measured by

the combined entire net income or combined capital of all the

corporations included in the return, including any captive REIT or

captive RIC. In computing combined entire net income intercorporate

dividends shall be eliminated, in computing combined business and

investment capital intercorporate stockholdings and intercorporate

bills, notes and accounts receivable and payable and other

intercorporate indebtedness shall be eliminated and in computing

combined subsidiary capital intercorporate stockholdings shall be

eliminated. No taxpayer subject to the tax imposed by section fifteen

hundred two-a or section fifteen hundred two-b of this article may be

required or permitted to be included in a combined return.

(ii) In the case of a captive REIT required under this subdivision to

be included in a combined return, "entire net income" means "real estate

investment trust taxable income" as defined in paragraph two of

subdivision (b) of section eight hundred fifty-seven (as modified by

section eight hundred fifty-eight) of the internal revenue code, plus

the amount taxable under paragraph three of subdivision (b) of section

eight hundred fifty-seven of that code, subject to the modifications

required by section fifteen hundred three of this article. In the case

of a captive RIC required under this subdivision to be included in a

combined return, "entire net income" means "investment company taxable

income" as defined in paragraph two of subdivision (b) of section eight

hundred fifty-two (as modified by section eight hundred fifty-five) of

the internal revenue code, plus the amount taxable under paragraph three

of subdivision (b) of section eight hundred fifty-two of that code,

subject to the modifications required by section fifteen hundred three

of this article. However, the deduction under the internal revenue code

for dividends paid by the captive REIT or captive RIC to any member of

the affiliated group that includes the corporation that directly or

indirectly owns over fifty percent of the voting stock of the captive

REIT or captive RIC shall not be allowed. The term "affiliated group"

means "affiliated group" as defined in section fifteen hundred four of

the internal revenue code, but without regard to the exceptions provided

for in subsection (b) of that section.

(g) In case it shall appear to the tax commission that any agreement,

understanding or arrangement exists between the taxpayer and any other

corporation, or any person or firm whereby the activity, business,

income or capital of the taxpayer within the state is improperly or

inaccurately reflected, the tax commission is authorized and empowered

in its discretion and in such manner as it may determine, to adjust

items of income, deductions and capital and to eliminate items entering

into the computing of any allocation percentage, provided only that

income directly traceable thereto be also excluded from entire net

income, so as equitably to determine the tax. Where (a) any taxpayer

conducts its activity or business under any agreement, arrangement or

understanding in such manner as either directly or indirectly to benefit

its members or stockholders, or any of them, or any person or persons

directly or indirectly interested in such activity or business, by

entering into any transaction at more or less than a fair price which,

but for such agreement, arrangement or understanding, might have been

paid or received therefor, or (b) any taxpayer, a substantial portion of

whose capital stock is owned either directly or indirectly by another

corporation, enters into any transaction with such other corporation on

such terms as to create an improper loss or net income, the tax

commission may include in entire net income the fair profits, which, but

for such agreement, arrangement or understanding, the taxpayer might

have derived from such transaction.