N.Y. Tax Law § 293: Allocation of unrelated business taxable income

§ 293. Allocation of unrelated business taxable income. (a) The

portion of the unrelated business taxable income of a taxpayer to be

allocated within this state shall be determined by multiplying its

unrelated business taxable income by an allocation percentage to be

determined by:

(1) ascertaining the percentage which the average value of the

taxpayer's real and tangible personal property in its unrelated trade or

business within the state during the period covered by the taxpayer's

return bears to the average value of all the taxpayer's real and

tangible personal property wherever situated during such period which is

used in its unrelated trade or business (For purposes of this paragraph,

the taxpayer's real property shall include not only such property owned

by the taxpayer but also such property rented to it.);

(2) ascertaining the percentage which the receipts of the taxpayer's

unrelated trade or business, computed on the cash or accrual basis

according to the method of accounting used in the computation of the

taxpayer's unrelated business taxable income, arising during such period

from

(A) sales of tangible personal property by the unrelated trade or

business where shipments are made to points within this state,

(B) services performed within the state by the unrelated trade or

business,

(C) rentals from property of the unrelated trade or business situated

within the state, and

(D) all other receipts earned by the unrelated trade or business

within the state, bear to the total amount of the receipts of the

unrelated trade or business, similarly computed, arising during such

period from all sales of its tangible personal property, services,

rentals and all other transactions, whether within or without the state;

(3) ascertaining the percentage of the total wages, salaries and

other personal service compensation, similarly computed, during such

period of employees of the taxpayer's unrelated trade or business within

the state, except general executive officers, to the total wages,

salaries and other personal service compensation, similarly computed,

during such period of all employees of the unrelated trade or business

within and without the state, except general executive officers; and

(4) adding together the percentages so determined and dividing the

result by the number of percentages; provided, however, that if the

taxpayer does not have a regular place of business outside the state in

which its unrelated trade or business is conducted, the business

allocation percentage shall be one hundred percent.

(b) If it shall appear to the tax commission that the allocation

percentage determined in subdivision (a) of this section does not

properly reflect the activity, business or income of a taxpayer's

unrelated trade or business within the state, the tax commission shall

be authorized, in its discretion, to adjust it by (1) excluding one or

more of the factors therein, (2) including one or more other factors,

such as expenses, purchases, contract values (minus subcontract values),

(3) excluding one or more assets in computing such allocation

percentage, provided the income therefrom is also excluded in

determining unrelated business taxable income or (4) any other similar

or different method calculated to effect a fair and proper allocation of

the income reasonably attributable to this state. The tax commission

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

respect to any application of the provisions of this subdivision.