N.Y. Tax Law § 183: Franchise tax on transportation and transmission corporations and associations

§ 183. Franchise tax on transportation and transmission corporations

and associations.--1. (a) The term "corporation" as used in this section

shall include an association, within the meaning of paragraph three of

subsection (a) of section seventy-seven hundred one of the internal

revenue code (including a limited liability company), a publicly traded

partnership treated as a corporation for purposes of the internal

revenue code pursuant to section seventy-seven hundred four thereof and

any business conducted by a trustee or trustees wherein interest or

ownership is evidenced by certificates or other written instruments.

(b) For the privilege of exercising its corporate franchise, or of

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

property in this state in a corporate or organized capacity, or of

maintaining an office in this state, every domestic corporation,

joint-stock company or association formed for or principally engaged in

the conduct of canal, steamboat, ferry (except a ferry company operating

between any of the boroughs of the city of New York under a lease

granted by the city), express, navigation, pipe line, transfer, baggage

express, omnibus, taxicab, telegraph, or telephone business, or formed

for or principally engaged in the conduct of two or more of such

businesses, and every domestic corporation, joint-stock company or

association formed for or principally engaged in the conduct of a

railroad, palace car, sleeping car or trucking business or formed for or

principally engaged in the conduct of two or more of such businesses and

which has made an election pursuant to subdivision ten of this section,

and every other domestic corporation, joint-stock company or association

principally engaged in the conduct of a transportation or transmission

business, except a corporation, joint-stock company or association

formed for or principally engaged in the conduct of a railroad, palace

car, sleeping car or trucking business or formed for or principally

engaged in the conduct of two or more of such businesses and which has

not made the election provided for in subdivision ten of this section,

and except a corporation, joint-stock company or association principally

engaged in the conduct of aviation (including air freight forwarders

acting as principal and like indirect air carriers) and except a

corporation principally engaged in providing telecommunication services

between aircraft and dispatcher, aircraft and air traffic control or

ground station and ground station (or any combination of the foregoing),

at least ninety percent of the voting stock of which corporation is

owned, directly or indirectly, by air carriers and which corporation's

principal function is to fulfill the requirements of (i) the federal

aviation administration (or the successor thereto) or (ii) 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 shall pay, in advance, an annual tax to be

computed upon the basis of the amount of its capital stock within this

state during the preceding year, and upon each dollar of such amount.

Provided, however, a corporation, joint-stock company or association

formed for or principally engaged in the transportation, transmission or

distribution of gas, electricity or steam shall not be subject to tax

under this section or section one hundred eighty-four of this article.

(c) Notwithstanding the provisions of paragraph (b) of this

subdivision, during the period that the state tax on motor fuel,

computed without regard to any reimbursement allowable under paragraph

(d) of subdivision three of section two hundred eighty-nine-c of this

chapter, exceeds two cents per gallon, the corporations, herein classed

as "taxicab" and "omnibus," other than corporations described in

subdivision nine of this section, shall be taxed under the provisions of

article nine-a of this chapter and not under this section.

2. The measure of the amount of capital stock in this state, except as

hereinafter provided, shall be such a portion of the issued capital

stock as the gross assets, exclusive of obligations issued by the United

States and cash on hand and on deposit, employed in any business within

this state, bear to the gross assets, exclusive of obligations issued by

the United States and cash on hand and on deposit, wherever employed in

business. Provided, however, that in the case of a corporation taxable

hereunder only for the privilege of holding property, the measure shall

be such a portion of the issued capital stock as the gross assets,

exclusive of obligations issued by the United States and cash on hand

and on deposit, located within the state, bear to the gross assets,

exclusive of obligations issued by the United States and cash on hand

and on deposit, wherever located. The capital of a corporation invested

in the stock of another corporation shall be deemed to be assets located

where the assets of the issuing corporation, other than patents,

copyrights, trademarks, contracts and good will, are located.

3. Every corporation, joint-stock company or association, subject to

taxation under this section shall, in any event, pay annually a minimum

tax of not less than seventy-five dollars nor less than one and

five-tenths mills on each dollar of such a portion of the net value of

its issued capital stock, which net value for the purposes of this

section shall be deemed to be not less than five dollars per share, as

may be determined upon such of the bases herein provided for the

measurement thereof as is applicable. The term "net value" as used in

this section shall be construed to mean not less than the difference

between a corporation's assets and liabilities, and not less than the

average price at which such stock sold during the year covered by the

report which forms the basis for the tax. But if the dividends paid on

the par value of any kind of capital stock during any year ending with

the thirty-first day of December amount to six per centum or more, the

tax upon such kind of capital stock shall be at the rate of

three-eighths of a mill for each one per centum of dividends paid and

shall be computed upon the par value of such capital stock, unless such

a tax be less than the minimum tax hereinbefore provided in this

section, and the tax commission shall, for such purpose, make a fair and

equitable apportionment of the assets of the corporation, joint-stock

company or association, between or among the different kinds of stock,

provided, however, that the provisions of this sentence shall not apply

to any corporation, joint stock company or association formed for or

principally engaged in the conduct of a telephone business which is

subject to the provisions of section one hundred eighty-four of this

article and which has a total number of access lines in the state of one

million or less.

4. If such corporation, joint stock company or association shall have

more than one kind of capital stock, and upon one of such kinds of stock

a dividend or dividends amounting to six or more than six per centum

upon the par value thereof, has been paid, and upon the other no

dividend has been paid, or the dividend or dividends paid thereon amount

to less than six per centum upon the par value thereof, then the tax

shall be fixed upon each kind as hereinbefore provided.

5. The dividend rate for a corporation having stock without nominal or

par value shall be determined by dividing the amount paid as a dividend

or dividends during the year by the amount paid in on such stock and, if

the rate is six per centum or more, the rate of three-eighths of a mill

for each one per centum of dividends shall be applied to the amount paid

in on such stock, unless such tax be less than the minimum tax

hereinbefore in this section provided for. The amount of earned surplus

at the time of change of classification of a corporation formerly taxed

under article nine-a of this chapter shall be excluded in determining

the amount of dividends paid. Any consideration given by a corporation

for the purchase of its own stock in excess of the consideration

received by it for the issuance of such stock, shall, for the purposes

of this section, be considered as a dividend.

6. Every like corporation, joint-stock company or association

organized, incorporated or formed under the laws of any other state,

country or sovereignty shall pay a like tax for the privilege of

exercising its corporate franchise, or of doing business, or of

employing capital, or of owning or leasing property in this state in a

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

state, to be computed upon the basis of the measurement herein provided

for the taxation of domestic corporations.

7. The owning or holding in this state by a foreign corporation, or by

a trustee or trustees included under this section within the meaning of

the term corporation as herein before defined, of property shall

constitute doing business within this state within the intent of this

section; provided, however, that the owning or holding in this state by

a railroad, palace car or sleeping car corporation, business,

navigation, canal, ferry, (except a ferry company operating between any

of the boroughs of the city of New York under a lease granted by the

city), or steamboat or any other corporation formed for or principally

engaged in the operation of vessels included under this section within

the meaning of the term corporation as herein before defined, of

property used exclusively in interstate or foreign commerce shall not

constitute doing business in this state within the intent of this

section. However, a foreign corporation or such a trustee or trustees

shall not be deemed to be doing business, employing capital, owning or

leasing property, or maintaining an office in this state, for the

purposes of this article, by reason of (a) the maintenance of cash

balances with banks or trust companies in this state, or (b) the

ownership of shares of stock or securities kept in this state, if kept

in a safe deposit box, safe, vault or other receptacle rented for the

purpose, or if pledged as collateral security, or if deposited with one

or more banks or trust companies, or brokers who are members of a

recognized security exchange, in safekeeping or custody accounts, or (c)

the taking of any action by any such bank or trust company or broker,

which is incidental to the rendering of safekeeping or custodian service

to such corporation, or (d) the maintenance of an office in this state

by one or more officers or directors of the corporation who are not

employees of the corporation if the corporation otherwise is not doing

business in this state, and does not employ capital or own or lease

property in this state, or (e) the keeping of books or records of a

corporation in this state if such books or records are not kept by

employees of such corporation and such corporation does not otherwise do

business, employ capital, own or lease property or maintain an office in

this state, or (f) any combination of the foregoing activities.

8. The measure of the capital stock in this state of a corporation

engaged in the operation of vessels in foreign commerce shall be such

portion of the issued capital stock as the aggregate number of working

days in New York territorial waters of all such vessels bears to the

aggregate number of working days of all such vessels. The dividend rate

for such a corporation shall be determined by dividing the amount paid

as a dividend or dividends on all classes of stock during the year by

the amount of paid-in capital and, if the rate is six per centum or

more, the rate of three-eighths of a mill for each one per centum of

dividends shall be applied to the amount of such paid-in capital.

9. (a) A corporation, classed as a "taxicab" or "omnibus",

(1) which is organized, incorporated or formed under the laws of any

other state, country or sovereignty, and

(2) which neither owns nor leases property in this state in a

corporate or organized capacity, nor

(3) maintains an office in this state in a corporate or organized

capacity, but

(4) which is doing business or employing capital in this state by

conducting at least one but fewer than twelve trips into this state

during the calendar year,

shall be exempt from the tax imposed under this section. If the only

property a corporation owns or leases in this state is a vehicle or

vehicles used to conduct trips, it shall not be considered, for purposes

of subparagraph two of this paragraph, to be owning or leasing property

in this state.

(b) For purposes of this subdivision, a corporation classed as a

"taxicab" or "omnibus" shall be considered to be conducting a trip into

New York state when one of its vehicles enters New York state and

transports passengers to, from, or to and from a location in New York

state. A corporation shall not be considered to be conducting a trip

into New York state if its vehicle only makes incidental stops at

locations in the state while in transit from a location outside New York

state to another location outside New York state. The number of trips a

corporation conducts into New York state shall be calculated by

determining the number of trips each vehicle owned, leased or operated

by the corporation conducts into New York state and adding those numbers

together.

10. Election. Every corporation, joint-stock company or association

formed for or principally engaged in the conduct of a railroad

(including surface railroad, whether or not operated by steam, subway

railroad or elevated railroad), palace car, sleeping car or trucking

business or formed for or principally engaged in the conduct of two or

more of such businesses, which would be subject to article nine-A of

this chapter if the election provided for under this subdivision were

not made, may elect to be subject to the provisions of this section and,

as applicable, section one hundred eighty-four of this article, rather

than the provisions of such article nine-A. Such corporation,

joint-stock company or association must make such election by the first

day on which such corporation, joint-stock company or association would

be required to file a return or report (without regard to extensions)

under this section or section one hundred eighty-four of this article,

or section one hundred eighty-three-a or one hundred eighty-four-a of

this article, or article nine-A of this chapter. An election made

pursuant to this subdivision shall continue to be in effect until

revoked by the taxpayer. A revocation of the election to be subject to

this section and, as applicable, section one hundred eighty-four of this

article, shall be irrevocable. Such election, and a revocation thereof,

shall be made in the manner prescribed by the commissioner, whether by

regulation or otherwise. Such revocation shall apply as of the first day

of January next following the end of a taxable year with respect to

which the taxpayer had been subject to this section and, as applicable,

section one hundred eighty-four of this article, by reason of an

election made pursuant to this subdivision.