N.Y. Tax Law § 25: Disclosure of certain transactions and related information

* § 25. Disclosure of certain transactions and related information.

(a) (1) Every taxpayer, or person as defined in section seven thousand

seven hundred one of the internal revenue code, required to file a

disclosure statement with the internal revenue service pursuant to

section six thousand eleven of the internal revenue code, or the

regulations promulgated thereunder, related to a reportable transaction

or a listed transaction, as those terms are defined in such section or

regulations, must attach a duplicate of such disclosure statement to the

return or report required to be filed by such taxpayer or person for the

taxable year under article nine, nine-A, twenty-two or thirty-three of

this chapter, and provide such other information related to such

disclosure as prescribed by the commissioner. Such disclosure shall be

made notwithstanding that one member of an affiliated group, as defined

by section fifteen hundred four of the internal revenue code, may file

such disclosure statement with the internal revenue service on behalf of

its affiliates including such taxpayer or person.

(2) Every taxpayer or such person who participates in a New York

reportable transaction for a taxable year must disclose such

participation with its return or report required to be filed under

article nine, nine-A, twenty-two or thirty-three of this chapter for the

taxable year in a form prescribed by the commissioner, and provide such

other information related to such transaction as prescribed by the

commissioner. A New York reportable transaction is a transaction that

has the potential to be a tax avoidance transaction as determined by the

commissioner.

(3) The commissioner may in his discretion prescribe, by regulation,

New York reportable transactions.

(4) Provided the commissioner has prescribed regulations pursuant to

paragraph three of this subdivision the commissioner is authorized to

designate specific transactions that are the same as, or substantially

similar to, transactions that the commissioner has determined to be tax

avoidance transactions. The provisions of article two of the state

administrative procedure act shall not apply to the designation of a

specific transaction as a tax avoidance transaction; provided, however,

that the commissioner shall designate any such transaction by notice or

other form of published guidance.

(b)(1) Every person required to make and file a statement or return

pursuant to section six thousand one hundred eleven of the internal

revenue code must file a duplicate of such statement or return,

including all documentation submitted to the internal revenue service in

connection with such statement or return, with the commissioner if any

of the following conditions apply:

(A) the person is organized in this state,

(B) the person is doing business in this state,

(C) the person is deriving income in this state, or

(D) (i) the list required to be maintained by such person pursuant to

section six thousand one hundred twelve of the internal revenue code

identifies or is required to identify a taxpayer subject to tax under

article nine, nine-A, twenty-two or thirty-three of this chapter, and

(ii) such person is a material advisor, as defined in section six

thousand one hundred eleven of the internal revenue code, who provides

any material aid, assistance, or advice with respect to organizing,

managing, promoting, selling, implementing, or carrying out any

reportable transaction.

(2) Such duplicate statement or return must be filed within sixty days

of the later of:

(A) the date required for filing the statement or return with the

internal revenue service,

(B) the date that any of the conditions described in paragraph (1) of

this subdivision first applies, or

(C) ninety days after the enactment of this section.

(c) Every person who is required to maintain a list of persons

pursuant to section six thousand one hundred twelve of the internal

revenue code, or the regulations promulgated thereunder, must maintain a

duplicate of such list if any of the conditions described in paragraph

one of subdivision (b) of this section applies to such person and must

furnish a copy thereof to the commissioner within twenty days after

written request is made for such list by the commissioner.

(d) Every person required by this section to disclose any transaction,

file any duplicate return, or maintain any list shall retain all

relevant correspondence, memoranda, notes, valuation studies, meeting

minutes, spreadsheets, models, opinions, records required to be retained

pursuant to section six thousand eleven of the internal revenue code, or

the regulations promulgated thereunder, and all other records or

documents related to the disclosure, filing and list maintenance

requirements of this section for six years and must make such

information available for inspection by the commissioner in connection

with any examination.

(e) The filing, disclosure and retention requirements of this section

shall be in addition to any other filing, disclosure or retention

requirements, general or specific, provided by law. The commissioner may

require electronic filing or disclosure of any or all submissions

required under this section, shall have the authority to prescribe

whether a signature, including an electronic signature, is required on

any or all filings or disclosures under this section. If an electronic

signature is so required, it shall be in a form consistent with the

provisions of the electronic signatures and records act of the state

technology law.

(f)(1) The penalties imposed for a violation of subdivision (a) of

this section are contained in subsection (x) of section six hundred

eighty-five and subsection (p) of section one thousand eighty-five of

this chapter.

(2) The penalties imposed for a violation of subdivision (b) of this

section are contained in subsection (y) of section six hundred

eighty-five and subsection (q) of section one thousand eighty-five of

this chapter.

(3) The penalties imposed for a violation of subdivision (c) of this

section are contained in subsection (z) of section six hundred

eighty-five and subsection (r) of section one thousand eighty-five of

this chapter.

* NB Repealed July 1, 2029