NY State Senate Bill 2019-S303

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
Jan 08, 2020	referred to investigations and government operations
Jan 09, 2019	referred to investigations and government operations

co-Sponsors

2019-S303 (ACTIVE) - Details

See Assembly Version of this Bill:: A3976
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:: 2015-2016: S7091, A9459
2017-2018: S1991, A3554
2021-2022: S999, A2195
2023-2024: A1415

2019-S303 (ACTIVE) - Summary

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

2019-S303 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S303

SPONSOR: HOYLMAN
 
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 corpo-
rate 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 legis-
lation 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.

 
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-typ-
ically 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 treat-
ment 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:

S.1991 of 2017-2018 (Klein): Died in IGO
2016 - S. 7091 - In Senate Investigations Committee

 
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 iden-
tical 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 taxa-
tion 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.

2019-S303 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    303
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                                (PREFILED)
 
                              January 9, 2019
                                ___________
 
 Introduced  by  Sen. HOYLMAN -- 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 RE-CHARACTERIZED 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.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD05825-01-9

 S. 303                              2
 
   § 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-
 TION  OF INCOME PURSUANT TO PARAGRAPH (U) OF SUBDIVISION NINE OF SECTION
 TWO HUNDRED EIGHT OF THIS ARTICLE.
   § 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.
   § 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.
   § 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.
   § 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-

 S. 303                              3
 
 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.
   (2) THIS SUBSECTION SHALL  NOT  APPLY  TO  A  PARTNER  OR  SHAREHOLDER
 PERFORMING  INVESTMENT MANAGEMENT SERVICES AS DESCRIBED UNDER SUBSECTION
 (H) OF THIS SECTION.
   § 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.
   § 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

 S. 303                              4
 
   (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.
   (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.
   § 9. For taxable years beginning on  or  after  January  1,  2019  and
 before  January  1, 2020, (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.
   § 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.
   § 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

 S. 303                              5
 
 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 S303

Sponsored By

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

co-Sponsors

2019-S303 (ACTIVE) - Details

2019-S303 (ACTIVE) - Summary

2019-S303 (ACTIVE) - Sponsor Memo

2019-S303 (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S303

Share this bill

Sponsored By

Brad Hoylman-Sigal

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

co-Sponsors

Alessandra Biaggi

Robert Jackson

Gustavo Rivera

James Sanders Jr.

2019-S303 (ACTIVE) - Details

2019-S303 (ACTIVE) - Summary

2019-S303 (ACTIVE) - Sponsor Memo

2019-S303 (ACTIVE) - Bill Text download pdf

Comments