NY State Senate Bill 2015-S7091

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 23, 2016	referred to investigations and government operations

co-Sponsors

2015-S7091 (ACTIVE) - Details

See Assembly Version of this Bill:: A9459
Current Committee:: Senate Investigations And Government Operations
Law Section:: Tax Law
Laws Affected:: Amd §§208, 210, 617, 631 & 632, Tax L
Versions Introduced in Other Legislative Sessions:: 2017-2018: S1991, A3554
2019-2020: S303, A3976
2021-2022: S999, A2195
2023-2024: A1415

2015-S7091 (ACTIVE) - Summary

Relates to investment management services to a partnership or other entity.

2015-S7091 (ACTIVE) - Sponsor Memo

                                 BILL NUMBER:  S7091

 TITLE OF BILL :

An act to amend the tax law, in relation to investment management
services to a partnership or other entity

 PURPOSE :

This bill aims to close the Carried Interest Tax Loophole on the State
level by taxing the Carried Interest Income of hedgefund and private
equity investors as traditional ordinary earned income.

 SUMMARY OF PROVISIONS :

Section 1: of the bill amends the tax law by adding (a) (i) The term
"investment income" means income, including capital gains in excess of
capital losses, from investment capital, to the extent included in
computing entire net income, less, any of capital gain included in
federal taxable income that has to be recharacterized as business
income

Section 2: of the bill adds the net operating loss deduction allowed
under section one hundred seventy-two of the internal revenue code
shall for purposes of this Paragraph be determined taking into
consideration the re-characterization of income

Sections 3: of the bill provides a special rule Special rule for
corporate partners performing investment management services.

Section 4: of the bill provides rules for investment management
services to a partnership or other entity.

Section 6: clarifies that this subsection shall not apply to a partner
or shareholder performing investment management services

Subsection 7: of the bill amends the tax law by adding the definition
of the term 'Investment Management Services' and 'Specified assets

Section 8: of the bill amends the Tax Law by adding a special rule for
partners performing investment management services.

Section 10: subjects income from investment management services as
defined in subsection (h) of section 631 of the tax law, will be
subject to a 19% "carried interest tax fee" payable to the state of
New York.

Section 11: provides that this act shall take effect upon enactment
into law by the states of Connecticut, New Jersey and Massachusetts of
legislation having an identical effect with this act, but if the
states of Connecticut, New Jersey and Massachusetts shall have already
enacted such legislation, this act shall take effect immediately;
provided that the commissioner of taxation and finance shall notify
the legislative bill drafting commission upon the enactment of such
legislation by the states of Connecticut, New Jersey and Massachusetts
in order that such commission may maintain an accurate and timely
effective data base of the official text of the laws of the state of
New York in furtherance of effectuating the provisions of section 44
of the legislative law and section 70-b of 19 the public officers law.

 JUSTIFICATION :

Currently the Carried Interest Tax Loophole in the federal tax code
allows hedge fund investment managers and private equity billionaires
to declare as carried interest a percentage of their investment fee to
get a lower tax rate. The returns from these fees which can be
sizeable-typically qualify as long-term capital gains - and as such
are treated much differently and are taxed at a much lower rate than
ordinary income. This essentially enables these private equity and
hedge fund managers to pay a substantially lower tax rate - 20 percent
instead of 39 percent - this is fundamentally unfair.

With the considerable gridlock at the federal level on nearly every
issue facing the American people, New York Legislators recognize the
power that New York can wield in eliminating the preferential tax
treatment that hedge fund managers enjoy. New York's private equity
and hedge funds earn $18.9 billion per year in under-taxed carried
interest, using conservative estimates. It is unconscionable that
money managers in New York pay a lower tax rate on income that they
earn by investing other people's money than hard working New Yorkers
in every city and town from Long Island to Buffalo.

Closing this loophole on the state level will benefit the economy far
beyond the more than $3.7 billion in tax revenue it would raise for
New York State. It would generate significant tax receipts (with
projections ranging from $1.8 to $18 billion a year nationwide) and
serve as a sign to the rest of the country that the New York State
Legislature is able to create reasonable comprehensive tax reform that
does not seek to further enrich members of the economic elite on the
backs of everyday working Americans.

 LEGISLATIVE HISTORY :

This is a new bill.

 FISCAL IMPLICATIONS :

None.

 EFFECTIVE DATE :
This act shall take effect upon enactment into law by the states of
Connecticut, New Jersey and Massachusetts of legislation having an
identical effect with this act, but if the states of Connecticut, New
Jersey and Massachusetts shall have already enacted such legislation,
this act shall take effect immediately; provided that the commissioner
of taxation and finance shall notify the legislative bill drafting
commission upon the enactment of such legislation by the states of
Connecticut, New Jersey and Massachusetts in order that such
commission may maintain an accurate and timely effective data base of
the official text of the laws of the state of New York in furtherance
of effectuating the provisions of section 44 of the legislative law
and section 70-b of 19 the public officers law.

2015-S7091 (ACTIVE) - Bill Text download pdf

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7091

                            I N  S E N A T E

                             March 23, 2016
                               ___________

Introduced  by  Sen.  KLEIN  -- read twice and ordered printed, and when
  printed to be committed to the Committee on Investigations and Govern-
  ment Operations

AN ACT to amend the  tax  law,  in  relation  to  investment  management
  services to a partnership or other entity

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (a) of subdivision 6 of section 208  of  the  tax
law,  as  amended  by  section  5 of part T of chapter 59 of the laws of
2015, is amended to read as follows:
  (a) (i) The term "investment income" means income,  including  capital
gains  in  excess  of  capital  losses,  from investment capital, to the
extent included in  computing  entire  net  income,  less,  (A)  in  the
discretion  of  the  commissioner,  any interest deductions allowable in
computing entire net income which are directly or  indirectly  attribut-
able to investment capital or investment income, (B) ANY OF CAPITAL GAIN
INCLUDED  IN  FEDERAL  TAXABLE  INCOME THAT HAS TO BE RECHARACTERIZED AS
BUSINESS INCOME PURSUANT TO PARAGRAPH (U) OF SUBDIVISION  NINE  OF  THIS
SECTION;  provided,  however,  that  in  no case shall investment income
exceed entire net income. (ii) If  the  amount  of  interest  deductions
subtracted  under  subparagraph (i) of this paragraph exceeds investment
income, the excess of such amount over investment income must  be  added
back  to  entire  net  income. (iii) If the taxpayer's investment income
determined without regard to the interest  deductions  subtracted  under
subparagraph  (i) of this paragraph comprises more than eight percent of
the taxpayer's entire net income, investment income  determined  without
regard  to  such  interest deductions cannot exceed eight percent of the
taxpayer's entire net income.
  S 2. Subparagraph (ix) of paragraph (a) of subdivision  1  of  section
210  of  the  tax  law  is  amended  by adding a new clause 8 to read as
follows:
  (8) THE NET OPERATING LOSS DEDUCTION ALLOWED UNDER SECTION ONE HUNDRED
SEVENTY-TWO OF THE INTERNAL REVENUE CODE  SHALL  FOR  PURPOSES  OF  THIS
PARAGRAPH  BE  DETERMINED TAKING INTO CONSIDERATION THE RE-CHARACTERIZA-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.

                                                           LBD14325-05-6

S. 7091                             2

TION OF INCOME PURSUANT TO PARAGRAPH (U) OF SUBDIVISION NINE OF  SECTION
TWO HUNDRED EIGHT OF THIS ARTICLE.
  S  3. Subdivision 9 of section 208 of the tax law is amended by adding
a new paragraph (u) to read as follows:
  (U) SPECIAL RULE FOR CORPORATE PARTNERS PERFORMING INVESTMENT  MANAGE-
MENT  SERVICES. IN THE CASE OF A TAXPAYER THAT IS A PARTNER WHO PERFORMS
INVESTMENT MANAGEMENT SERVICES (AS DEFINED IN SUBSECTION (H) OF  SECTION
SIX HUNDRED THIRTY-ONE OF THIS CHAPTER) FOR THE PARTNERSHIP, THE TAXPAY-
ER  WILL  NOT  BE TREATED AS A PARTNER FOR PURPOSES OF THIS ARTICLE WITH
RESPECT TO THE AMOUNT OF THE PARTNER'S  DISTRIBUTIVE  SHARE  OF  INCOME,
GAIN, LOSS AND DEDUCTION (INCLUDING ANY GUARANTEED PAYMENTS) WHICH IS IN
EXCESS OF THE AMOUNT THAT SUCH DISTRIBUTIVE SHARE WOULD HAVE BEEN IF THE
PARTNER  HAD PERFORMED NO INVESTMENT MANAGEMENT SERVICES.  INSTEAD, SUCH
EXCESS AMOUNT SHALL BE TREATED AS AN AMOUNT RECEIVED  FROM  A  TRADE  OR
BUSINESS  CARRIED  ON  BY THE TAXPAYER, AND NOTWITHSTANDING ANY STATE OR
FEDERAL LAW TO THE CONTRARY, SUCH EXCESS AMOUNT SHALL  BE  CHARACTERIZED
AS  A PAYMENT FOR SERVICES RENDERED. FOR PURPOSES OF THIS PARAGRAPH, THE
AMOUNT OF THE DISTRIBUTIVE SHARE THAT WOULD HAVE BEEN DETERMINED IF  THE
PARTNER PERFORMED NO SERVICES, SHALL NOT BE LESS THAN ZERO.
  S 4. Section 210 of the tax law is amended by adding a new subdivision
4 to read as follows:
  4.  RULE  FOR INVESTMENT MANAGEMENT SERVICES TO A PARTNERSHIP OR OTHER
ENTITY. FOR PURPOSES OF SUBDIVISION THREE OF THIS SECTION, THE AMOUNT OF
DISTRIBUTIVE SHARE  OF  PARTNERSHIP  INCOME,  GAIN,  LOSS  OR  DEDUCTION
(INCLUDING  ANY  GUARANTEED  PAYMENTS) RECEIVED AS A PARTNER BY A CORPO-
RATION WHICH RENDERS INVESTMENT MANAGEMENT SERVICES TO A PARTNERSHIP  OR
OTHER  ENTITY, AS DEFINED IN SUBSECTION (H) OF SECTION SIX HUNDRED THIR-
TY-ONE OF THIS CHAPTER, WHICH IS IN  EXCESS  OF  THE  AMOUNT  THAT  SUCH
DISTRIBUTIVE  SHARE  WOULD  HAVE  BEEN  IF  THE PARTNER HAD PERFORMED NO
INVESTMENT MANAGEMENT SERVICES, SHALL BE TREATED AS A  BUSINESS  RECEIPT
THAT  ARISES  FROM  THE  PERFORMANCE  OF  SERVICES. FOR PURPOSES OF THIS
SUBDIVISION, THE AMOUNT OF THE DISTRIBUTIVE SHARE THAT WOULD  HAVE  BEEN
DETERMINED  IF THE PARTNER PERFORMED NO SERVICES, SHALL NOT BE LESS THAN
ZERO.
  S 5. Subsection (b) of section 617 of the tax law, as amended by chap-
ter 606 of the laws of 1984, is amended to read as follows:
  (b) Character of items. Each item of  partnership  and  S  corporation
income,  gain,  loss,  or  deduction shall have the same character for a
partner or shareholder under this article  as  for  federal  income  tax
purposes.  Where  an  item  is  not characterized for federal income tax
purposes, it shall have the same character for a partner or  shareholder
as if realized directly from the source from which realized by the part-
nership  or  S corporation or incurred in the same manner as incurred by
the partnership or S corporation.    SEE  SUBSECTIONS  (F)  AND  (G)  OF
SECTION  SIX  HUNDRED  THIRTY-TWO  OF THIS ARTICLE FOR SPECIAL RULES FOR
PARTNERS AND SHAREHOLDERS PERFORMING INVESTMENT MANAGEMENT SERVICES.
  S 6. Subsection (d) of section 631 of the tax law, as amended by chap-
ter 28 of the laws of 1987, is amended to read as follows:
  (d) Purchase and sale for own account.-- (1) A nonresident, other than
a dealer holding property primarily for sale to customers in  the  ordi-
nary  course  of  his  OR  HER trade or business, shall not be deemed to
carry on a business, trade, profession or occupation in this state sole-
ly by reason of the purchase and sale of property or the purchase,  sale
or  writing  of  stock  option  contracts,  or  both, for his OR HER own
account.

S. 7091                             3

  (2) THIS SUBSECTION SHALL  NOT  APPLY  TO  A  PARTNER  OR  SHAREHOLDER
PERFORMING  INVESTMENT MANAGEMENT SERVICES AS DESCRIBED UNDER SUBSECTION
(H) OF THIS SECTION.
  S  7. Section 631 of the tax law is amended by adding a new subsection
(h) to read as follows:
  (H) INVESTMENT MANAGEMENT SERVICES. (1) FOR PURPOSES OF THIS  SECTION,
THE  TERM  "INVESTMENT  MANAGEMENT  SERVICES" TO A PARTNERSHIP, S CORPO-
RATION OR OTHER ENTITY MEANS PROVIDING A SUBSTANTIAL QUANTITY OF ANY  OF
THE  FOLLOWING SERVICES TO THE PARTNERSHIP, S CORPORATION OR OTHER ENTI-
TY:
  (I) ADVISING THE PARTNERSHIP, S  CORPORATION,  OR  ENTITY  AS  TO  THE
ADVISABILITY  OF  INVESTING  IN,  PURCHASING,  OR  SELLING ANY SPECIFIED
ASSET, OR
  (II) MANAGING, ACQUIRING, OR DISPOSING OF ANY SPECIFIED ASSET, OR
  (III) ARRANGING FINANCING WITH RESPECT TO ACQUIRING SPECIFIED  ASSETS,
OR
  (IV) ANY ACTIVITY IN SUPPORT OF ANY SERVICE DESCRIBED IN SUBPARAGRAPHS
(I) THROUGH (III) OF THIS PARAGRAPH.
  (2)  FOR PURPOSES OF THIS SUBSECTION, THE TERM "SPECIFIED ASSET" MEANS
SECURITIES (AS DEFINED IN SECTION FOUR HUNDRED  SEVENTY-FIVE  (C)(2)  OF
THE  INTERNAL REVENUE CODE WITHOUT REGARD TO THE LAST SENTENCE THEREOF),
REAL ESTATE HELD FOR RENTAL OR INVESTMENT,  INTERESTS  IN  PARTNERSHIPS,
COMMODITIES  (AS  DEFINED IN SECTION FOUR HUNDRED SEVENTY-FIVE (E)(2) OF
THE INTERNAL REVENUE CODE), OR  OPTIONS  OR  DERIVATIVE  CONTRACTS  WITH
RESPECT TO ANY OF THE FOREGOING.
  (3)  A  PARTNER  OR  SHAREHOLDER  WILL  NOT  BE DEEMED TO BE PROVIDING
INVESTMENT MANAGEMENT SERVICES UNDER THIS SUBSECTION IF AT LEAST  EIGHTY
PERCENT  OF THE AVERAGE FAIR MARKET VALUE OF THE SPECIFIED ASSETS OF THE
PARTNERSHIP, S CORPORATION OR  OTHER  ENTITY  DURING  THE  TAXABLE  YEAR
CONSIST OF REAL ESTATE.
  S  8.  Section  632  of  the  tax  law  is  amended  by adding two new
subsections (f) and (g) to read as follows:
  (F)  SPECIAL  RULE  FOR  PARTNERS  PERFORMING  INVESTMENT   MANAGEMENT
SERVICES.  IN  THE  CASE OF A PARTNER WHO PERFORMS INVESTMENT MANAGEMENT
SERVICES FOR THE PARTNERSHIP, THE PARTNER WILL NOT BE TREATED AS A PART-
NER FOR PURPOSES OF THIS ARTICLE WITH RESPECT TO THE AMOUNT OF THE PART-
NER'S DISTRIBUTIVE SHARE OF INCOME, GAIN, LOSS AND DEDUCTION  (INCLUDING
ANY GUARANTEED PAYMENTS) WHICH IS IN EXCESS OF THE AMOUNT SUCH DISTRIBU-
TIVE  SHARE  WOULD  HAVE BEEN IF THE PARTNER HAD PERFORMED NO INVESTMENT
MANAGEMENT SERVICES. INSTEAD, SUCH EXCESS AMOUNT SHALL BE TREATED AS  AN
AMOUNT RECEIVED FROM A TRADE, BUSINESS, PROFESSION OR OCCUPATION CARRIED
ON  IN THE PARTNER'S OWN CAPACITY FOR PURPOSES OF THIS ARTICLE. NOTWITH-
STANDING ANY STATE OR FEDERAL LAW TO THE CONTRARY,  SUCH  EXCESS  AMOUNT
SHALL  BE  CHARACTERIZED AS A PAYMENT FOR SERVICES RENDERED FOR PURPOSES
OF THIS ARTICLE, AND FOR PURPOSES OF SECTION SIX HUNDRED  THIRTY-ONE  OF
THIS  ARTICLE  SHALL BE ALLOCATED IN ACCORDANCE WITH THE RULES AND REGU-
LATIONS APPLICABLE TO:
  (1) INDIVIDUALS RENDERING PERSONAL SERVICES IN THE CASE OF AN INDIVID-
UAL PARTNER, OR
  (2) A BUSINESS CARRIED ON IN NEW YORK IN THE CASE OF A PARTNER THAT IS
A PARTNERSHIP, ESTATE OR TRUST, OR
  (3) A CORPORATION UNDER ARTICLE NINE-A OF THIS CHAPTER IN THE CASE  OF
A PARTNER THAT IS AN S CORPORATION.
FOR  PURPOSES  OF  THIS SUBSECTION, THE AMOUNT OF THE DISTRIBUTIVE SHARE
THAT WOULD HAVE BEEN DETERMINED IF THE PARTNER  PERFORMED  NO  SERVICES,
SHALL NOT BE LESS THAN ZERO.

S. 7091                             4

  (G)  SPECIAL  RULE  FOR  SHAREHOLDERS PERFORMING INVESTMENT MANAGEMENT
SERVICES. IN THE CASE OF A SHAREHOLDER WHO PERFORMS  INVESTMENT  MANAGE-
MENT SERVICES FOR THE S CORPORATION, THE SHAREHOLDER WILL NOT BE TREATED
AS A SHAREHOLDER FOR PURPOSES OF THIS ARTICLE WITH RESPECT TO THE AMOUNT
OF  THE SHAREHOLDER'S PRO RATA SHARE OF INCOME, GAIN, LOSS AND DEDUCTION
WHICH IS IN EXCESS OF THE AMOUNT SUCH PRO RATA SHARE WOULD HAVE BEEN  IF
THE   SHAREHOLDER  HAD  PERFORMED  NO  INVESTMENT  MANAGEMENT  SERVICES.
INSTEAD, SUCH EXCESS AMOUNT SHALL BE TREATED AS AN AMOUNT RECEIVED  FROM
A TRADE, BUSINESS, PROFESSION OR OCCUPATION CARRIED ON IN THE SHAREHOLD-
ER'S  OWN  CAPACITY  FOR  PURPOSES  OF THIS ARTICLE. NOTWITHSTANDING ANY
STATE OR FEDERAL LAW TO THE CONTRARY, SUCH EXCESS AMOUNT SHALL BE  CHAR-
ACTERIZED  AS A PAYMENT FOR SERVICES RENDERED FOR PURPOSES OF THIS ARTI-
CLE, AND FOR PURPOSES OF SECTION SIX HUNDRED THIRTY-ONE OF THIS  ARTICLE
SHALL BE ALLOCATED IN ACCORDANCE WITH THE RULES AND REGULATIONS APPLICA-
BLE TO:
  (1) INDIVIDUALS RENDERING PERSONAL SERVICES IN THE CASE OF AN INDIVID-
UAL SHAREHOLDER, OR
  (2)  A  BUSINESS  CARRIED  ON IN NEW YORK IN THE CASE OF A SHAREHOLDER
THAT IS AN ESTATE OR TRUST.
FOR PURPOSES OF THIS SUBSECTION, THE AMOUNT OF THE PRO RATA  SHARE  THAT
WOULD  HAVE  BEEN  DETERMINED  IF THE SHAREHOLDER PERFORMED NO SERVICES,
SHALL NOT BE LESS THAN ZERO.
  S 9. For taxable years beginning on  or  after  January  1,  2016  and
before  January  1, 2017, (i) no addition to tax under subsection (c) of
section 685 or subsection (c) of section 1085 of the tax  law  shall  be
imposed  with respect to any underpayment attributable to the amendments
made by this act of any estimated taxes that are  required  to  be  paid
prior  to  the  effective  date  of this act, provided that the taxpayer
timely made those payments; and (ii) the required installment  of  esti-
mated tax described in clause (ii) of subparagraph (B) of paragraph 3 of
subsection (c) of section 685 of the tax law, and the exception to addi-
tion  for underpayment of estimated tax described in paragraph 1 or 2 of
subsection (d) of section 1085 of  the  tax  law,  in  relation  to  the
preceding  year's  return, shall be calculated as if the amendments made
by this act had been in effect for that entire preceding year.
  S 10.  Income  from  investment  management  services  as  defined  in
subsection  (h)  of section 631 of the tax law shall be subject to a 19%
"carried interest fairness fee" payable to the state of New  York  until
such  time  as the commissioner of taxation and finance has notified the
legislative bill drafting commission that the United States Congress has
passed and the President of the United  States  has  signed  legislation
having  an  identical  effect  with  this  act applicable to such income
earned in all of the states and territories.
  S 11. This act shall take effect upon enactment into law by the states
of Connecticut, New Jersey and Massachusetts of  legislation  having  an
identical  effect  with  this act, but if the states of Connecticut, New
Jersey and Massachusetts shall have already  enacted  such  legislation,
this  act  shall take effect immediately; provided that the commissioner
of taxation and finance shall notify  the  legislative  bill    drafting
commission  upon  the  enactment  of  such  legislation by the states of
Connecticut, New Jersey and Massachusetts in order that such  commission
may  maintain an accurate and timely effective data base of the official
text of the laws of the state of New York in furtherance of effectuating
the provisions of section 44 of the legislative law and section 70-b  of
the public officers law.

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Senate Bill S7091

Sponsored By

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

co-Sponsors

2015-S7091 (ACTIVE) - Details

2015-S7091 (ACTIVE) - Summary

2015-S7091 (ACTIVE) - Sponsor Memo

2015-S7091 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S7091

Share this bill

Sponsored By

Jeffrey D. Klein

Archive: Last Bill Status - In Senate Committee Investigations And Government Operations Committee

co-Sponsors

Marc Panepinto

2015-S7091 (ACTIVE) - Details

2015-S7091 (ACTIVE) - Summary

2015-S7091 (ACTIVE) - Sponsor Memo

2015-S7091 (ACTIVE) - Bill Text download pdf

Comments