S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                    946
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                                (PREFILED)
 
                              January 6, 2021
                                ___________
 
 Introduced  by  M.  of A. PHEFFER AMATO -- read once and referred to the
   Committee on Ways and Means
 
 AN ACT to amend the tax law, in relation to a tax on gross  income  upon
   every  corporation  which  derives income from the data individuals of
   this state share with  such  corporations;  and  to  amend  the  state
   finance law, in relation to establishing the New York data fund
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 209 of the tax law  is  amended  by  adding  a  new
 subdivision 13 to read as follows:
   13.  NOTWITHSTANDING  ANY  OTHER  PROVISION OF THIS CHAPTER, OR OF ANY
 OTHER LAW, A TAX EQUAL TO FIVE PERCENT TAX ON THE GROSS INCOME IS HEREBY
 IMPOSED UPON EVERY CORPORATION WHICH DERIVES INCOME FROM THE DATA  INDI-
 VIDUALS OF THIS STATE SHARE WITH SUCH CORPORATIONS.
   § 2. The state finance law is amended by adding a new section 99-ii to
 read as follows:
   §  99-II.  DATA  FUND.  1. A SPECIAL FUND TO BE KNOWN AS THE "NEW YORK
 DATA FUND" IS HEREBY ESTABLISHED IN THE CUSTODY OF THE STATE COMPTROLLER
 AND THE COMMISSIONER OF TAXATION AND FINANCE.
   2. THE FUND SHALL CONSIST OF  ALL  MONIES  TRANSFERRED  TO  SUCH  FUND
 PURSUANT  TO LAW, ALL MONIES REQUIRED BY ANY PROVISION OF LAW TO BE PAID
 INTO OR CREDITED TO THE FUND, ALL MONEYS DERIVED BY SUBDIVISION THIRTEEN
 OF SECTION TWO HUNDRED NINE OF THE TAX LAW  AND  ANY  INTEREST  EARNINGS
 WHICH  MAY  ACCRUE  FROM THE INVESTMENT OF MONIES IN THE FUND. SUCH FUND
 SHALL BE DIVIDED INTO AN EARNINGS RESERVE ACCOUNT AND A  DIVIDEND  FUND.
 NOTHING CONTAINED IN THIS SECTION SHALL PREVENT THE STATE FROM RECEIVING
 GRANTS,  GIFTS  OR  BEQUESTS  FOR THE PURPOSES OF THE FUND AS DEFINED IN
 THIS SECTION AND DEPOSITING THEM INTO THE FUND ACCORDING TO LAW.
   3. FOR THE PURPOSES OF THIS SECTION:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD05280-01-1

 A. 946                              2
 
   (A) "BOARD" MEANS THE BOARD OF TRUSTEES OF  THE  NEW  YORK  DATA  FUND
 BOARD.
   (B) "FUND" MEANS THE NEW YORK DATA FUND.
   4.  THERE  IS ESTABLISHED THE NEW YORK DATA FUND BOARD. THE PURPOSE OF
 THE BOARD IS TO MANAGE AND INVEST THE ASSETS OF THE DATA FUND AND  OTHER
 FUNDS DESIGNATED BY LAW PURSUANT TO THIS SECTION.
   5.  (A)  THE  BOARD CONSISTS OF SIX MEMBERS APPOINTED BY THE GOVERNOR.
 TWO OF THE MEMBERS  SHALL  BE  COMMISSIONERS  OF  DEPARTMENTS  OF  STATE
 GOVERNMENT,  ONE  OF  WHOM  SHALL  BE  THE  COMMISSIONER OF TAXATION AND
 FINANCE. THE REMAINING FOUR MEMBERS SHALL BE APPOINTED AS  FOLLOWS:  ONE
 BY  THE TEMPORARY PRESIDENT OF THE SENATE; ONE BY THE MINORITY LEADER OF
 THE SENATE; ONE BY THE SPEAKER OF THE ASSEMBLY; AND ONE BY THE  MINORITY
 LEADER  OF  THE  ASSEMBLY.  SUCH MEMBERS MAY NOT HOLD ANY OTHER STATE OR
 FEDERAL OFFICE, POSITION OR EMPLOYMENT, EITHER ELECTIVE  OR  APPOINTIVE,
 EXCEPT AS A MEMBER OF THE ARMED FORCES OF EITHER THE UNITED STATES OR OF
 THIS STATE.
   (B)  THE  FOUR PUBLIC MEMBERS OF THE BOARD MUST HAVE RECOGNIZED COMPE-
 TENCE AND WIDE EXPERIENCE IN FINANCE,  INVESTMENTS,  OR  OTHER  BUSINESS
 MANAGEMENT-RELATED FIELDS.
   (C) THE BOARD SHALL ANNUALLY ELECT A CHAIRMAN FROM AMONG ITS MEMBERS.
   (D)  THE  PUBLIC  MEMBERS OF THE BOARD SHALL BE APPOINTED FOR TERMS OF
 FOUR YEARS, AND THEY MAY BE REAPPOINTED. THE TERMS OF THE PUBLIC MEMBERS
 SHALL BE STAGGERED SO THAT NO MORE THAN ONE  TERM  OF  A  PUBLIC  MEMBER
 EXPIRES EACH YEAR.
   (I)  A VACANCY ON THE BOARD SHALL BE PROMPTLY FILLED BY APPOINTMENT BY
 THE GOVERNOR, SUBJECT TO APPROVAL BY  THE  SENATE.  AN  APPOINTEE  TO  A
 VACANCY  SHALL  HOLD  OFFICE  FOR  THE BALANCE OF THE TERM FOR WHICH THE
 APPOINTEE'S PREDECESSOR ON THE BOARD WAS APPOINTED.
   (II) A VACANCY ON THE BOARD DOES NOT IMPAIR THE AUTHORITY OF A  QUORUM
 OF  THE  BOARD  TO EXERCISE ALL THE POWERS AND PERFORM ALL THE DUTIES OF
 THE BOARD.
   (E) FOUR MEMBERS OF THE BOARD CONSTITUTE A QUORUM FOR THE  TRANSACTION
 OF  BUSINESS  AND  THE  EXERCISE  OF THE POWERS AND DUTIES OF THE BOARD.
 ACTION MAY BE TAKEN ONLY UPON AFFIRMATIVE VOTE OF A MAJORITY OF THE FULL
 MEMBERSHIP OF THE BOARD.
   (F) PUBLIC MEMBERS OF THE BOARD RECEIVE AN HONORARIUM OF FOUR  HUNDRED
 DOLLARS  FOR EACH DAY SPENT AT A MEETING OF THE BOARD OR AT A MEETING OF
 A SUBCOMMITTEE OF THE BOARD OR AT A PUBLIC MEETING AS  A  REPRESENTATIVE
 OF  THE  BOARD. MEMBERS OF THE BOARD ARE ENTITLED TO PER DIEM AND TRAVEL
 ALLOWANCES AS PROVIDED BY LAW FOR MEMBERS OF STATE  BOARDS  AND  COMMIS-
 SIONS.
   (G)  IF  A  MEMBER  OF  THE  BOARD  OR  AN EMPLOYEE OF THE CORPORATION
 ACQUIRES, OWNS, OR CONTROLS AN INTEREST, DIRECT OR INDIRECT, IN AN ENTI-
 TY OR PROJECT IN WHICH FUND ASSETS ARE INVESTED, THE MEMBER SHALL  IMME-
 DIATELY  DISCLOSE  THE INTEREST TO THE BOARD. THE DISCLOSURE IS A MATTER
 OF PUBLIC RECORD AND SHALL BE INCLUDED IN THE MINUTES OF THE BOARD MEET-
 ING NEXT FOLLOWING THE DISCLOSURE.
   (H) ON OR BEFORE THE FIRST OF JANUARY EACH YEAR, THE  COMMISSIONER  OF
 TAXATION  AND  FINANCE  SHALL  PROVIDE A WRITTEN REPORT TO THE TEMPORARY
 PRESIDENT OF THE SENATE, SPEAKER OF THE ASSEMBLY, CHAIR  OF  THE  SENATE
 FINANCE COMMITTEE, CHAIR OF THE ASSEMBLY WAYS AND MEANS COMMITTEE, CHAIR
 OF THE SENATE COMMITTEE ON CODES, CHAIR OF THE ASSEMBLY CODES COMMITTEE,
 THE  STATE COMPTROLLER AND THE PUBLIC. SUCH REPORT SHALL INCLUDE HOW THE
 MONIES OF THE FUND WERE UTILIZED DURING THE PRECEDING CALENDAR YEAR, AND
 SHALL INCLUDE, BUT NOT BE LIMITED TO:

 A. 946                              3
 
   (I) THE AMOUNT OF MONEY DISPERSED FROM THE FUND AND THE AWARD  PROCESS
 USED FOR SUCH DISBURSEMENTS; AND
   (II) THE AMOUNT AWARDED TO EACH TAXPAYER.
   6. (A) THE BOARD SHALL ADOPT RULES AND REGULATIONS SPECIFICALLY DESIG-
 NATING THE TYPES OF INCOME-PRODUCING INVESTMENTS ELIGIBLE FOR INVESTMENT
 OF  FUND ASSETS.  WHEN ADOPTING RULES AND REGULATIONS AUTHORIZED BY THIS
 SECTION OR MANAGING AND INVESTING FUND ASSETS, THE PRUDENT-INVESTOR RULE
 SHALL BE APPLIED BY THE BOARD. THE PRUDENT-INVESTOR RULE AS  APPLIED  TO
 INVESTMENT  ACTIVITY OF THE FUND MEANS THAT THE BOARD SHALL EXERCISE THE
 JUDGMENT AND CARE UNDER THE CIRCUMSTANCES THEN PREVAILING THAT AN INSTI-
 TUTIONAL INVESTOR OF ORDINARY  PRUDENCE,  DISCRETION,  AND  INTELLIGENCE
 EXERCISES  IN  THE  DESIGNATION  AND  MANAGEMENT  OF  LARGE  INVESTMENTS
 ENTRUSTED TO IT, NOT IN REGARD TO SPECULATION,  BUT  IN  REGARD  TO  THE
 PERMANENT DISPOSITION OF FUNDS, CONSIDERING PRESERVATION OF THE PURCHAS-
 ING  POWER  OF  THE  FUND  OVER TIME WHILE MAXIMIZING THE EXPECTED TOTAL
 RETURN FROM BOTH INCOME AND THE APPRECIATION OF CAPITAL.
   (B) THE BOARD MAY NOT BORROW MONEY OR GUARANTEE FROM PRINCIPAL OF  THE
 FUND  THE OBLIGATIONS OF OTHERS, EXCEPT AS PROVIDED IN THIS SUBDIVISION.
 WITH RESPECT TO INVESTMENTS OF THE FUND, THE BOARD MAY, EITHER  DIRECTLY
 OR  THROUGH  AN  ENTITY IN WHICH THE INVESTMENT IS MADE, BORROW MONEY IF
 THE BORROWING IS NONRECOURSE TO THE BOARD AND THE FUND.
   (C) THE  BOARD  SHALL  MAINTAIN  A  REASONABLE  DIVERSIFICATION  AMONG
 INVESTMENTS  UNLESS,  UNDER THE CIRCUMSTANCES, IT IS CLEARLY PRUDENT NOT
 TO DO SO. THE BOARD SHALL INVEST THE ASSETS  OF  THE  FUND  IN  IN-STATE
 INVESTMENTS TO THE EXTENT THAT IN-STATE INVESTMENTS ARE AVAILABLE AND IF
 THE IN-STATE INVESTMENTS:
   (I)  HAVE  A  RISK  LEVEL  AND EXPECTED RETURN COMPARABLE TO ALTERNATE
 INVESTMENT OPPORTUNITIES; AND
   (II) ARE ELIGIBLE FOR INVESTMENT OF FUND ASSETS.
   (D) THE BOARD MAY ENTER INTO  AND  ENFORCE  ALL  CONTRACTS  NECESSARY,
 CONVENIENT,  OR  DESIRABLE  FOR MANAGING THE FUND'S ASSETS AND CORPORATE
 OPERATIONS, INCLUDING CONTRACTS FOR FUTURE DELIVERY TO  IMPLEMENT  ASSET
 ALLOCATION STRATEGIES OR TO HEDGE AN EXISTING EQUIVALENT OWNERSHIP POSI-
 TION IN AN INVESTMENT.
   7.  NET INCOME OF THE FUND INCLUDES INCOME OF THIS FUND. NET INCOME OF
 THE FUND SHALL BE COMPUTED ANNUALLY AS OF THE LAST  DAY  OF  THE  FISCAL
 YEAR  IN  ACCORDANCE  WITH  GENERALLY  ACCEPTED  ACCOUNTING  PRINCIPLES,
 EXCLUDING ANY UNREALIZED GAINS OR LOSSES. INCOME AVAILABLE FOR  DISTRIB-
 UTION  EQUALS  TWENTY-ONE  PERCENT OF THE NET INCOME OF THE FUND FOR THE
 LAST FIVE FISCAL YEARS, INCLUDING THE FISCAL YEAR JUST  ENDED,  BUT  MAY
 NOT  EXCEED  NET  INCOME OF THE FUND FOR THE FISCAL YEAR JUST ENDED PLUS
 THE BALANCE IN THIS FUND.
   8. (A) THE EARNINGS RESERVE  ACCOUNT  IS  ESTABLISHED  AS  A  SEPARATE
 ACCOUNT  IN  THE  FUND.  INCOME  FROM THE FUND SHALL BE DEPOSITED BY THE
 BOARD INTO THE ACCOUNT AS SOON AS IT IS RECEIVED. MONEY IN  THE  ACCOUNT
 SHALL  BE  INVESTED  IN  INVESTMENTS AUTHORIZED UNDER SUBDIVISION SIX OF
 THIS SECTION.
   (B) AT THE END OF EACH FISCAL YEAR, THE BOARD SHALL TRANSFER FROM  THE
 EARNINGS  RESERVE  ACCOUNT  TO  THE DIVIDEND FUND ESTABLISHED UNDER THIS
 SECTION, FIFTY PERCENT OF THE INCOME AVAILABLE FOR DISTRIBUTION.
   (C) AFTER THE TRANSFER UNDER PARAGRAPH (B) OF  THIS  SUBDIVISION,  THE
 BOARD  SHALL TRANSFER FROM THE EARNINGS RESERVE ACCOUNT TO THE PRINCIPAL
 OF THE FUND AN AMOUNT SUFFICIENT TO OFFSET THE EFFECT  OF  INFLATION  ON
 PRINCIPAL OF THE FUND DURING THAT FISCAL YEAR. THE BOARD SHALL CALCULATE
 THE AMOUNT TO TRANSFER TO THE PRINCIPAL UNDER THIS SUBDIVISION BY:

 A. 946                              4
 
   (I)  COMPUTING THE AVERAGE OF THE MONTHLY UNITED STATES CONSUMER PRICE
 INDEX FOR ALL URBAN CONSUMERS FOR EACH  OF  THE  TWO  PREVIOUS  CALENDAR
 YEARS;
   (II)  COMPUTING  THE  PERCENTAGE  CHANGE  BETWEEN THE FIRST AND SECOND
 CALENDAR YEAR AVERAGE; AND
   (III) APPLYING THAT RATE TO THE VALUE OF THE PRINCIPAL OF THE FUND  ON
 THE LAST DAY OF THE FISCAL YEAR JUST ENDED.
   9.  THE  BOARD  SHALL  DETERMINE  AND  DISTRIBUTE SUCH AMOUNTS TO EACH
 TAXPAYER OF THE STATE.
   10. THE RESOURCES OF THE BOARD OR THE FUND MAY NOT BE USED TO  FINANCE
 OR INFLUENCE POLITICAL ACTIVITIES.
   11.  MONIES  OF  THE  FUND,  WHEN ALLOCATED, SHALL BE AVAILABLE TO THE
 DEPARTMENT OF TAXATION AND FINANCE FOR DISTRIBUTION TO TAXPAYERS OF  THE
 STATE.
   12.  MONIES SHALL BE PAYABLE FROM THE FUND ON THE AUDIT AND WARRANT OF
 THE COMPTROLLER ON VOUCHERS APPROVED AND CERTIFIED BY BOARD, IN CONJUNC-
 TION WITH THE COMMISSIONER OF TAXATION AND FINANCE.
   § 3. This act shall take effect on the one hundred eightieth day after
 it shall have become a law.  Effective immediately, the addition, amend-
 ment and/or repeal of any rule or regulation necessary for the implemen-
 tation of this act on its effective date are authorized to be  made  and
 completed on or before such effective date.